G.R. No.

195649               April 16, 2013

CASAN MACODE MAQUILING, Petitioner,

vs.
COMMISSION ON ELECTIONS, ROMMEL ARNADO y CAGOCO, LINOG G.
BALUA, Respondents.

DECISION

SERENO, CJ.:

THE CASE

This is a Petition for Certiorari ender Rule 64 in conjunction with Rule 65 of the Rules of Court to
review the Resolutions of the Commission on Elections (COMELEC). The Resolution 1 in SPA No.
10-1 09(DC) of the COMELEC First Division dated 5 October 201 0 is being assailed for applying
Section 44 of the Local Government Code while the Resolution 2 of the COMELEC En Banc dated 2
February 2011 is being questioned for finding that respondent Rommel Arnado y Cagoco
(respondent Arnado/Arnado) is solely a Filipino citizen qualified to run for public office despite his
continued use of a U.S. passport.

FACTS

Respondent Arnado is a natural born Filipino citizen. 3 However, as a consequence of his subsequent
naturalization as a citizen of the United States of America, he lost his Filipino citizenship. Arnado
applied for repatriation under Republic Act (R.A.) No. 9225 before the Consulate General of the
Philippines in San Franciso, USA and took the Oath of Allegiance to the Republic of the Philippines
on 10 July 2008.4 On the same day an Order of Approval of his Citizenship Retention and Re-
acquisition was issued in his favor.5

The aforementioned Oath of Allegiance states:

I, Rommel Cagoco Arnado, solemnly swear that I will support and defend the Constitution of the
Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted
authorities of the Philippines and I hereby declare that I recognize and accept the supreme authority
of the Philippines and will maintain true faith and allegiance thereto; and that I impose this obligation
upon myself voluntarily without mental reservation or purpose of evasion. 6

On 3 April 2009 Arnado again took his Oath of Allegiance to the Republic and executed an Affidavit
of Renunciation of his foreign citizenship, which states:

I, Rommel Cagoco Arnado, do solemnly swear that I absolutely and perpetually renounce all
allegiance and fidelity to the UNITED STATES OF AMERICA of which I am a citizen, and I divest
myself of full employment of all civil and political rights and privileges of the United States of
America.

I solemnly swear that all the foregoing statement is true and correct to the best of my knowledge and
belief.7

On 30 November 2009, Arnado filed his Certificate of Candidacy for Mayor of Kauswagan, Lanao del
Norte, which contains, among others, the following statements:
I am a natural born Filipino citizen / naturalized Filipino citizen.

I am not a permanent resident of, or immigrant to, a foreign country.

I am eligible for the office I seek to be elected to.

I will support and defend the Constitution of the Republic of the Philippines and will maintain true
faith and allegiance thereto. I will obey the laws, legal orders and decrees promulgated by the duly
constituted authorities.

I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion. 8

On 28 April 2010, respondent Linog C. Balua (Balua), another mayoralty candidate, filed a petition to
disqualify Arnado and/or to cancel his certificate of candidacy for municipal mayor of Kauswagan,
Lanao del Norte in connection with the 10 May 2010 local and national elections. 9

Respondent Balua contended that Arnado is not a resident of Kauswagan, Lanao del Norte and that
he is a foreigner, attaching thereto a certification issued by the Bureau of Immigration dated 23 April
2010 indicating the nationality of Arnado as "USA-American." 10To further bolster his claim of
Arnado’s US citizenship, Balua presented in his Memorandum a computer-generated travel
record11 dated 03 December 2009 indicating that Arnado has been using his US Passport No.
057782700 in entering and departing the Philippines. The said record shows that Arnado left the
country on 14 April 2009 and returned on 25 June 2009, and again departed on 29 July 2009,
arriving back in the Philippines on 24 November 2009.

Balua likewise presented a certification from the Bureau of Immigration dated 23 April 2010,
certifying that the name "Arnado, Rommel Cagoco" appears in the available Computer
Database/Passenger manifest/IBM listing on file as of 21 April 2010, with the following pertinent
travel records:

DATE OF Arrival : 01/12/2010

NATIONALITY : USA-AMERICAN

PASSPORT : 057782700

DATE OF Arrival : 03/23/2010

NATIONALITY : USA-AMERICAN

PASSPORT : 05778270012

On 30 April 2010, the COMELEC (First Division) issued an Order 13 requiring the respondent to
personally file his answer and memorandum within three (3) days from receipt thereof.

After Arnado failed to answer the petition, Balua moved to declare him in default and to present
evidence ex-parte.

Neither motion was acted upon, having been overtaken by the 2010 elections where Arnado
garnered the highest number of votes and was subsequently proclaimed as the winning candidate
for Mayor of Kauswagan, Lanao del Norte.
It was only after his proclamation that Arnado filed his verified answer, submitting the following
documents as evidence:14

1. Affidavit of Renunciation and Oath of Allegiance to the Republic of the Philippines dated
03 April 2009;

2. Joint-Affidavit dated 31 May 2010 of Engr. Virgil Seno, Virginia Branzuela, Leoncio
Daligdig, and Jessy Corpin, all neighbors of Arnado, attesting that Arnado is a long-time
resident of Kauswagan and that he has been conspicuously and continuously residing in his
family’s ancestral house in Kauswagan;

3. Certification from the Punong Barangay of Poblacion, Kauswagan, Lanao del Norte dated
03 June 2010 stating that Arnado is a bona fide resident of his barangay and that Arnado
went to the United States in 1985 to work and returned to the Philippines in 2009;

4. Certification dated 31 May 2010 from the Municipal Local Government Operations Office
of Kauswagan stating that Dr. Maximo P. Arnado, Sr. served as Mayor of Kauswagan, from
January 1964 to June 1974 and from 15 February 1979 to 15 April 1986; and

5. Voter Certification issued by the Election Officer of Kauswagan certifying that Arnado has
been a registered voter of Kauswagan since 03 April 2009.

THE RULING OF THE COMELEC FIRST DIVISION

Instead of treating the Petition as an action for the cancellation of a certificate of candidacy based on
misrepresentation,15 the COMELEC First Division considered it as one for disqualification. Balua’s
contention that Arnado is a resident of the United States was dismissed upon the finding that "Balua
failed to present any evidence to support his contention," 16 whereas the First Division still could "not
conclude that Arnado failed to meet the one-year residency requirement under the Local
Government Code."17

In the matter of the issue of citizenship, however, the First Division disagreed with Arnado’s claim
that he is a Filipino citizen.18

We find that although Arnado appears to have substantially complied with the requirements of R.A.
No. 9225, Arnado’s act of consistently using his US passport after renouncing his US citizenship on
03 April 2009 effectively negated his Affidavit of Renunciation.

xxxx

Arnado’s continued use of his US passport is a strong indication that Arnado had no real intention to
renounce his US citizenship and that he only executed an Affidavit of Renunciation to enable him to
run for office. We cannot turn a blind eye to the glaring inconsistency between Arnado’s unexplained
use of a US passport six times and his claim that he re-acquired his Philippine citizenship and
renounced his US citizenship. As noted by the Supreme Court in the Yu case, "a passport is defined
as an official document of identity and nationality issued to a person intending to travel or sojourn in
foreign countries." Surely, one who truly divested himself of US citizenship would not continue to
avail of privileges reserved solely for US nationals. 19

The dispositive portion of the Resolution rendered by the COMELEC

First Division reads:

WHEREFORE, in view of the foregoing, the petition for disqualification and/or to cancel the
certificate of candidacy of Rommel C. Arnado is hereby GRANTED. Rommel C. Arnado’s
proclamation as the winning candidate for Municipal Mayor of Kauswagan, Lanao del Nore is hereby
ANNULLED. Let the order of succession under Section 44 of the Local Government Code of 1991
take effect.20

The Motion for Reconsideration and

the Motion for Intervention

Arnado sought reconsideration of the resolution before the COMELEC En Banc on the ground that
"the evidence is insufficient to justify the Resolution and that the said Resolution is contrary to
law."21 He raised the following contentions:22

1. The finding that he is not a Filipino citizen is not supported by the evidence consisting of
his Oath of Allegiance and the Affidavit of Renunciation, which show that he has substantially
complied with the requirements of R.A. No. 9225;

2. The use of his US passport subsequent to his renunciation of his American citizenship is
not tantamount to a repudiation of his Filipino citizenship, as he did not perform any act to
swear allegiance to a country other than the Philippines;

3. He used his US passport only because he was not informed of the issuance of his
Philippine passport, and that he used his Philippine passport after he obtained it;

4. Balua’s petition to cancel the certificate of candidacy of Arnado was filed out of time, and
the First Division’s treatment of the petition as one for disqualification constitutes grave
abuse of discretion amounting to excess of jurisdiction; 23

5. He is undoubtedly the people’s choice as indicated by his winning the elections;

6. His proclamation as the winning candidate ousted the COMELEC from jurisdiction over
the case; and

7. The proper remedy to question his citizenship is through a petition for quo warranto, which
should have been filed within ten days from his proclamation.

Petitioner Casan Macode Maquiling (Maquiling), another candidate for mayor of Kauswagan, and
who garnered the second highest number of votes in the 2010 elections, intervened in the case and
filed before the COMELEC En Banc a Motion for Reconsideration together with an Opposition to
Arnado’s Amended Motion for Reconsideration. Maquiling argued that while the First Division
correctly disqualified Arnado, the order of succession under Section 44 of the Local Government
Code is not applicable in this case. Consequently, he claimed that the cancellation of Arnado’s
candidacy and the nullification of his proclamation, Maquiling, as the legitimate candidate who
obtained the highest number of lawful votes, should be proclaimed as the winner.

Maquiling simultaneously filed his Memorandum with his Motion for Intervention and his Motion for
Reconsideration. Arnado opposed all motions filed by Maquiling, claiming that intervention is
prohibited after a decision has already been rendered, and that as a second-placer, Maquiling
undoubtedly lost the elections and thus does not stand to be prejudiced or benefitted by the final
adjudication of the case.

RULING OF THE COMELEC EN BANC

In its Resolution of 02 February 2011, the COMELEC En Banc held that under Section 6 of Republic
Act No. 6646, the Commission "shall continue with the trial and hearing of the action, inquiry or
protest even after the proclamation of the candidate whose qualifications for office is questioned."

As to Maquiling’s intervention, the COMELEC En Banc also cited Section 6 of R.A. No. 6646 which
allows intervention in proceedings for disqualification even after elections if no final judgment has
been rendered, but went on further to say that Maquiling, as the second placer, would not be
prejudiced by the outcome of the case as it agrees with the dispositive portion of the Resolution of
the First Division allowing the order of succession under Section 44 of the Local Government Code
to take effect.

The COMELEC En Banc agreed with the treatment by the First Division of the petition as one for
disqualification, and ruled that the petition was filed well within the period prescribed by law, 24 having
been filed on 28 April 2010, which is not later than 11 May 2010, the date of proclamation.

However, the COMELEC En Banc reversed and set aside the ruling of the First Division and granted
Arnado’s Motion for Reconsideration, on the following premises:

First:

By renouncing his US citizenship as imposed by R.A. No. 9225, the respondent embraced his
Philippine citizenship as though he never became a citizen of another country. It was at that time,
April 3, 2009, that the respondent became a pure Philippine Citizen again.

xxxx

The use of a US passport … does not operate to revert back his status as a dual citizen prior to his
renunciation as there is no law saying such. More succinctly, the use of a US passport does not
operate to "un-renounce" what he has earlier on renounced. The First Division’s reliance in the case
of In Re: Petition for Habeas Corpus of Willy Yu v. Defensor-Santiago, et al. is misplaced. The
petitioner in the said case is a naturalized citizen who, after taking his oath as a naturalized Filipino,
applied for the renewal of his Portuguese passport. Strict policy is maintained in the conduct of
citizens who are not natural born, who acquire their citizenship by choice, thus discarding their
original citizenship. The Philippine State expects strict conduct of allegiance to those who choose to
be its citizens. In the present case, respondent is not a naturalized citizen but a natural born citizen
who chose greener pastures by working abroad and then decided to repatriate to supposedly help in
the progress of Kauswagan. He did not apply for a US passport after his renunciation. Thus the
mentioned case is not on all fours with the case at bar.

xxxx

The respondent presented a plausible explanation as to the use of his US passport. Although he
applied for a Philippine passport, the passport was only issued on June 18, 2009. However, he was
not notified of the issuance of his Philippine passport so that he was actually able to get it about
three (3) months later. Yet as soon as he was in possession of his Philippine passport, the
respondent already used the same in his subsequent travels abroad. This fact is proven by the
respondent’s submission of a certified true copy of his passport showing that he used the same for
his travels on the following dates: January 31, 2010, April 16, 2010, May 20, 2010, January 12,
2010, March 31, 2010 and June 4, 2010. This then shows that the use of the US passport was
because to his knowledge, his Philippine passport was not yet issued to him for his use. As probably
pressing needs might be undertaken, the respondent used whatever is within his control during that
time.25

In his Separate Concurring Opinion, COMELEC Chairman Sixto Brillantes cited that the use of
foreign passport is not one of the grounds provided for under Section 1 of Commonwealth Act No.
63 through which Philippine citizenship may be lost.

"The application of the more assimilative principle of continuity of citizenship is more appropriate in
this case. Under said principle, once a person becomes a citizen, either by birth or naturalization, it
is assumed that he desires to continue to be a citizen, and this assumption stands until he voluntarily
denationalizes or expatriates himself. Thus, in the instant case respondent after reacquiring his
Philippine citizenship should be presumed to have remained a Filipino despite his use of his
American passport in the absence of clear, unequivocal and competent proof of expatriation.
Accordingly, all doubts should be resolved in favor of retention of citizenship." 26

On the other hand, Commissioner Rene V. Sarmiento dissented, thus:

Respondent evidently failed to prove that he truly and wholeheartedly abandoned his allegiance to
the United States. The latter’s continued use of his US passport and enjoyment of all the privileges
of a US citizen despite his previous renunciation of the afore-mentioned citizenship runs contrary to
his declaration that he chose to retain only his Philippine citizenship. Respondent’s submission with
the twin requirements was obviously only for the purpose of complying with the requirements for
running for the mayoralty post in connection with the May 10, 2010 Automated National and Local
Elections.

Qualifications for elective office, such as citizenship, are continuing requirements; once any of them
is lost during his incumbency, title to the office itself is deemed forfeited. If a candidate is not a
citizen at the time he ran for office or if he lost his citizenship after his election to office, he is
disqualified to serve as such. Neither does the fact that respondent obtained the plurality of votes for
the mayoralty post cure the latter’s failure to comply with the qualification requirements regarding his
citizenship.

Since a disqualified candidate is no candidate at all in the eyes of the law, his having received the
highest number of votes does not validate his election. It has been held that where a petition for
disqualification was filed before election against a candidate but was adversely resolved against him
after election, his having obtained the highest number of votes did not make his election valid. His
ouster from office does not violate the principle of vox populi suprema est lex because the
application of the constitutional and statutory provisions on disqualification is not a matter of
popularity. To apply it is to breath[e] life to the sovereign will of the people who expressed it when
they ratified the Constitution and when they elected their representatives who enacted the law. 27

THE PETITION BEFORE THE COURT

Maquiling filed the instant petition questioning the propriety of declaring Arnado qualified to run for
public office despite his continued use of a US passport, and praying that Maquiling be proclaimed
as the winner in the 2010 mayoralty race in Kauswagan, Lanao del Norte.
Ascribing both grave abuse of discretion and reversible error on the part of the COMELEC En Banc
for ruling that Arnado is a Filipino citizen despite his continued use of a US passport, Maquiling now
seeks to reverse the finding of the COMELEC En Banc that Arnado is qualified to run for public
office.

Corollary to his plea to reverse the ruling of the COMELEC En Banc or to affirm the First Division’s
disqualification of Arnado, Maquiling also seeks the review of the applicability of Section 44 of the
Local Government Code, claiming that the COMELEC committed reversible error in ruling that "the
succession of the vice mayor in case the respondent is disqualified is in order."

There are three questions posed by the parties before this Court which will be addressed seriatim as
the subsequent questions hinge on the result of the first.

The first question is whether or not intervention is allowed in a disqualification case.

The second question is whether or not the use of a foreign passport after renouncing foreign
citizenship amounts to undoing a renunciation earlier made.

A better framing of the question though should be whether or not the use of a foreign passport after
renouncing foreign citizenship affects one’s qualifications to run for public office.

The third question is whether or not the rule on succession in the Local Government Code is
applicable to this case.

OUR RULING

Intervention of a rival candidate in a

disqualification case is proper when
there has not yet been any
proclamation of the winner.

Petitioner Casan Macode Maquiling intervened at the stage when respondent Arnado filed a Motion
for Reconsideration of the First Division Resolution before the COMELEC En Banc. As the candidate
who garnered the second highest number of votes, Maquiling contends that he has an interest in the
disqualification case filed against Arnado, considering that in the event the latter is disqualified, the
votes cast for him should be considered stray and the second-placer should be proclaimed as the
winner in the elections.

It must be emphasized that while the original petition before the COMELEC is one for cancellation of
the certificate of candidacy and / or disqualification, the COMELEC First Division and the COMELEC
En Banc correctly treated the petition as one for disqualification.

The effect of a disqualification case is enunciated in Section 6 of R.A. No. 6646:

Sec. 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to
be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such election, the Court or Commission shall
continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is strong.
Mercado v. Manzano28

clarified the right of intervention in a disqualification case. In that case, the Court said:

That petitioner had a right to intervene at that stage of the proceedings for the disqualification
against private respondent is clear from Section 6 of R.A. No. 6646, otherwise known as the
Electoral Reforms Law of 1987, which provides: Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If
for any reason a candidate is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election, the Court or Commission
shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of guilt is strong. Under this provision,
intervention may be allowed in proceedings for disqualification even after election if there has yet
been no final judgment rendered. 29

Clearly then, Maquiling has the right to intervene in the case. The fact that the COMELEC En Banc
has already ruled that Maquiling has not shown that the requisites for the exemption to the second-
placer rule set forth in Sinsuat v. COMELEC30 are present and therefore would not be prejudiced by
the outcome of the case, does not deprive Maquiling of the right to elevate the matter before this
Court.

Arnado’s claim that the main case has attained finality as the original petitioner and respondents
therein have not appealed the decision of the COMELEC En Banc, cannot be sustained. The
elevation of the case by the intervenor prevents it from attaining finality. It is only after this Court has
ruled upon the issues raised in this instant petition that the disqualification case originally filed by
Balua against Arnado will attain finality.

The use of foreign passport after renouncing one’s foreign citizenship is a positive and
voluntary act of representation as to one’s nationality and citizenship; it does not divest
Filipino citizenship regained by repatriation but it recants the Oath of Renunciation required
to qualify one to run for an elective position.

Section 5(2) of The Citizenship Retention and Re-acquisition Act of 2003 provides:

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

xxxx

(2)Those seeking elective public in the Philippines shall meet the qualification for holding such public
office as required by the Constitution and existing laws and, at the time of the filing of the certificate
of candidacy, make a personal and sworn renunciation of any and all foreign before any public
officer authorized to administer an oath.

x x x31

Rommel Arnado took all the necessary steps to qualify to run for a public office. He took the Oath of
Allegiance and renounced his foreign citizenship. There is no question that after performing these
twin requirements required under Section 5(2) of R.A. No. 9225 or the Citizenship Retention and Re-
acquisition Act of 2003, he became eligible to run for public office.

Indeed, Arnado took the Oath of Allegiance not just only once but twice: first, on 10 July 2008 when
he applied for repatriation before the Consulate General of the Philippines in San Francisco, USA,
and again on 03 April 2009 simultaneous with the execution of his Affidavit of Renunciation. By
taking the Oath of Allegiance to the Republic, Arnado re-acquired his Philippine citizenship. At the
time, however, he likewise possessed American citizenship. Arnado had therefore become a dual
citizen.

After reacquiring his Philippine citizenship, Arnado renounced his American citizenship by executing
an Affidavit of Renunciation, thus completing the requirements for eligibility to run for public office.

By renouncing his foreign citizenship, he was deemed to be solely a Filipino citizen, regardless of
the effect of such renunciation under the laws of the foreign country. 32

However, this legal presumption does not operate permanently and is open to attack when, after
renouncing the foreign citizenship, the citizen performs positive acts showing his continued
possession of a foreign citizenship.33

Arnado himself subjected the issue of his citizenship to attack when, after renouncing his foreign
citizenship, he continued to use his US passport to travel in and out of the country before filing his
certificate of candidacy on 30 November 2009. The pivotal question to determine is whether he was
solely and exclusively a Filipino citizen at the time he filed his certificate of candidacy, thereby
rendering him eligible to run for public office.

Between 03 April 2009, the date he renounced his foreign citizenship, and 30 November 2009, the
date he filed his COC, he used his US passport four times, actions that run counter to the affidavit of
renunciation he had earlier executed. By using his foreign passport, Arnado positively and voluntarily
represented himself as an American, in effect declaring before immigration authorities of both
countries that he is an American citizen, with all attendant rights and privileges granted by the United
States of America.

The renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time,
only to be violated the next day. It requires an absolute and perpetual renunciation of the foreign
citizenship and a full divestment of all civil and political rights granted by the foreign country which
granted the citizenship.

Mercado v. Manzano34 already hinted at this situation when the Court declared:

His declarations will be taken upon the faith that he will fulfill his undertaking made under oath.
Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine
citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-Santiago, we
sustained the denial of entry into the country of petitioner on the ground that, after taking his oath as
a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in
commercial documents executed abroad that he was a Portuguese national. A similar sanction can
be taken against anyone who, in electing Philippine citizenship, renounces his foreign nationality, but
subsequently does some act constituting renunciation of his Philippine citizenship.

While the act of using a foreign passport is not one of the acts enumerated in Commonwealth Act
No. 63 constituting renunciation and loss of Philippine citizenship, 35 it is nevertheless an act which
repudiates the very oath of renunciation required for a former Filipino citizen who is also a citizen of
another country to be qualified to run for a local elective position.

When Arnado used his US passport on 14 April 2009, or just eleven days after he renounced his
American citizenship, he recanted his Oath of Renunciation 36 that he "absolutely and perpetually
renounce(s) all allegiance and fidelity to the UNITED STATES OF AMERICA" 37 and that he "divest(s)
himself of full employment of all civil and political rights and privileges of the United States of
America."38

We agree with the COMELEC En Banc that such act of using a foreign passport does not divest
Arnado of his Filipino citizenship, which he acquired by repatriation. However, by representing
himself as an American citizen, Arnado voluntarily and effectively reverted to his earlier status as a
dual citizen. Such reversion was not retroactive; it took place the instant Arnado represented himself
as an American citizen by using his US passport.

This act of using a foreign passport after renouncing one’s foreign citizenship is fatal to Arnado’s bid
for public office, as it effectively imposed on him a disqualification to run for an elective local position.

Arnado’s category of dual citizenship is that by which foreign citizenship is acquired through a
positive act of applying for naturalization. This is distinct from those considered dual citizens by
virtue of birth, who are not required by law to take the oath of renunciation as the mere filing of the
certificate of candidacy already carries with it an implied renunciation of foreign citizenship. 39 Dual
citizens by naturalization, on the other hand, are required to take not only the Oath of Allegiance to
the Republic of the Philippines but also to personally renounce foreign citizenship in order to qualify
as a candidate for public office.

By the time he filed his certificate of candidacy on 30 November 2009, Arnado was a dual citizen
enjoying the rights and privileges of Filipino and American citizenship. He was qualified to vote, but
by the express disqualification under Section 40(d) of the Local Government Code, 40 he was not
qualified to run for a local elective position.

In effect, Arnado was solely and exclusively a Filipino citizen only for a period of eleven days, or
from 3 April 2009 until 14 April 2009, on which date he first used his American passport after
renouncing his American citizenship.

This Court has previously ruled that:

Qualifications for public office are continuing requirements and must be possessed not only at the
time of appointment or election or assumption of office but during the officer's entire tenure. Once
any of the required qualifications is lost, his title may be seasonably challenged. x x x. 41

The citizenship requirement for elective public office is a continuing one. It must be possessed not
just at the time of the renunciation of the foreign citizenship but continuously. Any act which violates
the oath of renunciation opens the citizenship issue to attack.

We agree with the pronouncement of the COMELEC First Division that "Arnado’s act of consistently
using his US passport effectively negated his "Affidavit of Renunciation." 42 This does not mean, that
he failed to comply with the twin requirements under R.A. No. 9225, for he in fact did.
It was after complying with the requirements that he performed positive acts which effectively
disqualified him from running for an elective public office pursuant to Section 40(d) of the Local
Government Code of 1991.

The purpose of the Local Government Code in disqualifying dual citizens from running for any
elective public office would be thwarted if we were to allow a person who has earlier renounced his
foreign citizenship, but who subsequently represents himself as a foreign citizen, to hold any public
office.

Arnado justifies the continued use of his US passport with the explanation that he was not notified of
the issuance of his Philippine passport on 18 June 2009, as a result of which he was only able to
obtain his Philippine passport three (3) months later. 43

The COMELEC En Banc differentiated Arnado from Willy Yu, the Portuguese national who sought
naturalization as a Filipino citizen and later applied for the renewal of his Portuguese passport. That
Arnado did not apply for a US passport after his renunciation does not make his use of a US
passport less of an act that violated the Oath of Renunciation he took. It was still a positive act of
representation as a US citizen before the immigration officials of this country.

The COMELEC, in ruling favorably for Arnado, stated "Yet, as soon as he was in possession of his
Philippine passport, the respondent already used the same in his subsequent travels abroad." 44 We
cannot agree with the COMELEC. Three months from June is September. If indeed, Arnado used
his Philippine passport as soon as he was in possession of it, he would not have used his US
passport on 24 November 2009.

Besides, Arnado’s subsequent use of his Philippine passport does not correct the fact that after he
renounced his foreign citizenship and prior to filing his certificate of candidacy, he used his US
passport. In the same way that the use of his foreign passport does not undo his Oath of
Renunciation, his subsequent use of his Philippine passport does not undo his earlier use of his US
passport.

Citizenship is not a matter of convenience. It is a badge of identity that comes with attendant civil
and political rights accorded by the state to its citizens. It likewise demands the concomitant duty to
maintain allegiance to one’s flag and country. While those who acquire dual citizenship by choice are
afforded the right of suffrage, those who seek election or appointment to public office are required to
renounce their foreign citizenship to be deserving of the public trust. Holding public office demands
full and undivided allegiance to the Republic and to no other.

We therefore hold that Arnado, by using his US passport after renouncing his American citizenship,
has recanted the same Oath of Renunciation he took. Section 40(d) of the Local Government Code
applies to his situation. He is disqualified not only from holding the public office but even from
becoming a candidate in the May 2010 elections.

We now resolve the next issue.

Resolving the third issue necessitates revisiting Topacio v. Paredes 45 which is the jurisprudential
spring of the principle that a second-placer cannot be proclaimed as the winner in an election
contest. This doctrine must be re-examined and its soundness once again put to the test to address
the ever-recurring issue that a second-placer who loses to an ineligible candidate cannot be
proclaimed as the winner in the elections.
The Facts of the case are as follows:

On June 4, 1912, a general election was held in the town of Imus, Province of Cavite, to fill the office
of municipal president. The petitioner, Felipe Topacio, and the respondent, Maximo Abad, were
opposing candidates for that office. Topacio received 430 votes, and Abad 281. Abad contested the
election upon the sole ground that Topacio was ineligible in that he was reelected the second time to
the office of the municipal president on June 4, 1912, without the four years required by Act No.
2045 having intervened.46

Abad thus questioned the eligibility of To p a c i o on the basis of a statutory prohibition for seeking a
second re-election absent the four year interruption.

The often-quoted phrase in Topacio v. Paredes is that "the wreath of victory cannot be transferred
from an ineligible candidate to any other candidate when the sole question is the eligibility of the one
receiving a plurality of the legally cast ballots."47

This phrase is not even the ratio decidendi; it is a mere obiter dictum. The Court was comparing "the
effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in
the elections x x x with that produced by declaring a person ineligible to hold such an office."

The complete sentence where the phrase is found is part of a comparison and contrast between the
two situations, thus:

Again, the effect of a decision that a candidate is not entitled to the office because of fraud or
irregularities in the elections is quite different from that produced by declaring a person ineligible to
hold such an office. In the former case the court, after an examination of the ballots may find that
some other person than the candidate declared to have received a plurality by the board of
canvassers actually received the greater number of votes, in which case the court issues its
mandamus to the board of canvassers to correct the returns accordingly; or it may find that the
manner of holding the election and the returns are so tainted with fraud or illegality that it cannot be
determined who received a plurality of the legally cast ballots. In the latter case, no question as to
the correctness of the returns or the manner of casting and counting the ballots is before the
deciding power, and generally the only result can be that the election fails entirely. In the former, we
have a contest in the strict sense of the word, because of the opposing parties are striving for
supremacy. If it be found that the successful candidate (according to the board of canvassers)
obtained a plurality in an illegal manner, and that another candidate was the real victor, the former
must retire in favor of the latter. In the other case, there is not, strictly speaking, a contest, as the
wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the
sole question is the eligibility of the one receiving a plurality of the legally cast ballots. In the one
case the question is as to who received a plurality of the legally cast ballots; in the other, the
question is confined to the personal character and circumstances of a single individual. 48 (Emphasis
supplied)

Note that the sentence where the phrase is found starts with "In the other case, there is not, strictly
speaking, a contest" in contrast to the earlier statement, "In the former, we have a contest in the
strict sense of the word, because of the opposing parties are striving for supremacy."

The Court in Topacio v. Paredes cannot be said to have held that "the wreath of victory cannot be
transferred from an ineligible candidate to any other candidate when the sole question is the
eligibility of the one receiving a plurality of the legally cast ballots."
A proper reading of the case reveals that the ruling therein is that since the Court of First Instance is
without jurisdiction to try a disqualification case based on the eligibility of the person who obtained
the highest number of votes in the election, its jurisdiction being confined "to determine which of the
contestants has been duly elected" the judge exceeded his jurisdiction when he "declared that no
one had been legally elected president of the municipality of Imus at the general election held in that
town on 4 June 1912" where "the only question raised was whether or not Topacio was eligible to be
elected and to hold the office of municipal president."

The Court did not rule that Topacio was disqualified and that Abad as the second placer cannot be
proclaimed in his stead. The Court therein ruled:

For the foregoing reasons, we are of the opinion and so hold that the respondent judge exceeded his
jurisdiction in declaring in those proceedings that no one was elected municipal president of the
municipality of Imus at the last general election; and that said order and all subsequent proceedings
based thereon are null and void and of no effect; and, although this decision is rendered on
respondents' answer to the order to show cause, unless respondents raised some new and
additional issues, let judgment be entered accordingly in 5 days, without costs. So ordered. 49

On closer scrutiny, the phrase relied upon by a host of decisions does not even have a legal basis to
stand on. It was a mere pronouncement of the Court comparing one process with another and
explaining the effects thereof. As an independent statement, it is even illogical.

Let us examine the statement:

"x x x the wreath of victory cannot be transferred from an ineligible candidate to any other candidate
when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots."

What prevents the transfer of the wreath of victory from the ineligible candidate to another
candidate?

When the issue being decided upon by the Court is the eligibility of the one receiving a plurality of
the legally cast ballots and ineligibility is thereafter established, what stops the Court from adjudging
another eligible candidate who received the next highest number of votes as the winner and
bestowing upon him that "wreath?"

An ineligible candidate who receives the highest number of votes is a wrongful winner. By express
legal mandate, he could not even have been a candidate in the first place, but by virtue of the lack of
material time or any other intervening circumstances, his ineligibility might not have been passed
upon prior to election date. Consequently, he may have had the opportunity to hold himself out to the
electorate as a legitimate and duly qualified candidate. However, notwithstanding the outcome of the
elections, his ineligibility as a candidate remains unchanged. Ineligibility does not only pertain to his
qualifications as a candidate but necessarily affects his right to hold public office. The number of
ballots cast in his favor cannot cure the defect of failure to qualify with the substantive legal
requirements of eligibility to run for public office.

The popular vote does not cure the

ineligibility of a candidate.

The ballot cannot override the constitutional and statutory requirements for qualifications and
disqualifications of candidates. When the law requires certain qualifications to be possessed or that
certain disqualifications be not possessed by persons desiring to serve as elective public officials,
those qualifications must be met before one even becomes a candidate. When a person who is not
qualified is voted for and eventually garners the highest number of votes, even the will of the
electorate expressed through the ballot cannot cure the defect in the qualifications of the candidate.
To rule otherwise is to trample upon and rent asunder the very law that sets forth the qualifications
and disqualifications of candidates. We might as well write off our election laws if the voice of the
electorate is the sole determinant of who should be proclaimed worthy to occupy elective positions in
our republic.

This has been, in fact, already laid down by the Court in Frivaldo v. COMELEC 50 when we
pronounced:

x x x. The fact that he was elected by the people of Sorsogon does not excuse this patent violation
of the salutary rule limiting public office and employment only to the citizens of this country. The
qualifications prescribed for elective office cannot be erased by the electorate alone.

The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially
if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule
requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the
Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and
renouncing all fealty and fidelity to any other state. 51 (Emphasis supplied)

This issue has also been jurisprudentially clarified in Velasco v. COMELEC 52 where the Court ruled
that the ruling in Quizon and Saya-ang cannot be interpreted without qualifications lest "Election
victory x x x becomes a magic formula to bypass election eligibility requirements." 53

We have ruled in the past that a candidate’s victory in the election may be considered a sufficient
basis to rule in favor of the candidate sought to be disqualified if the main issue involves defects in
the candidate’s certificate of candidacy. We said that while provisions relating to certificates of
candidacy are mandatory in terms, it is an established rule of interpretation as regards election laws,
that mandatory provisions requiring certain steps before elections will be construed as directory after
the elections, to give effect to the will of the people. We so ruled in Quizon v. COMELEC and Saya-
ang v. COMELEC:

The present case perhaps presents the proper time and opportunity to fine-tune our above ruling.
We say this with the realization that a blanket and unqualified reading and application of this ruling
can be fraught with dangerous significance for the rule of law and the integrity of our elections. For
one, such blanket/unqualified reading may provide a way around the law that effectively negates
election requirements aimed at providing the electorate with the basic information to make an
informed choice about a candidate’s eligibility and fitness for office.

The first requirement that may fall when an unqualified reading is made is Section 39 of the LGC
which specifies the basic qualifications of local government officials. Equally susceptive of being
rendered toothless is Section 74 of the OEC that sets out what should be stated in a COC. Section
78 may likewise be emasculated as mere delay in the resolution of the petition to cancel or deny due
course to a COC can render a Section 78 petition useless if a candidate with false COC data wins.
To state the obvious, candidates may risk falsifying their COC qualifications if they know that an
election victory will cure any defect that their COCs may have. Election victory then becomes a
magic formula to bypass election eligibility requirements. (Citations omitted)

What will stop an otherwise disqualified individual from filing a seemingly valid COC, concealing any
disqualification, and employing every strategy to delay any disqualification case filed against him so
he can submit himself to the electorate and win, if winning the election will guarantee a disregard of
constitutional and statutory provisions on qualifications and disqualifications of candidates?

It is imperative to safeguard the expression of the sovereign voice through the ballot by ensuring that
its exercise respects the rule of law. To allow the sovereign voice spoken through the ballot to trump
constitutional and statutory provisions on qualifications and disqualifications of candidates is not
democracy or republicanism. It is electoral anarchy. When set rules are disregarded and only the
electorate’s voice spoken through the ballot is made to matter in the end, it precisely serves as an
open invitation for electoral anarchy to set in.
1âwphi1

Maquiling is not a second-placer as

he obtained the highest number of
votes from among the qualified
candidates.

With Arnado’s disqualification, Maquiling then becomes the winner in the election as he obtained the
highest number of votes from among the qualified candidates.

We have ruled in the recent cases of Aratea v. COMELEC 54 and Jalosjos v. COMELEC55 that a void
COC cannot produce any legal effect.

Thus, the votes cast in favor of the ineligible candidate are not considered at all in determining the
winner of an election.

Even when the votes for the ineligible candidate are disregarded, the will of the electorate is still
respected, and even more so. The votes cast in favor of an ineligible candidate do not constitute the
sole and total expression of the sovereign voice. The votes cast in favor of eligible and legitimate
candidates form part of that voice and must also be respected.

As in any contest, elections are governed by rules that determine the qualifications and
disqualifications of those who are allowed to participate as players. When there are participants who
turn out to be ineligible, their victory is voided and the laurel is awarded to the next in rank who does
not possess any of the disqualifications nor lacks any of the qualifications set in the rules to be
eligible as candidates.

There is no need to apply the rule cited in Labo v. COMELEC 56 that when the voters are well aware
within the realm of notoriety of a candidate’s disqualification and still cast their votes in favor said
candidate, then the eligible candidate obtaining the next higher number of votes may be deemed
elected. That rule is also a mere obiter that further complicated the rules affecting qualified
candidates who placed second to ineligible ones.

The electorate’s awareness of the candidate’s disqualification is not a prerequisite for the
disqualification to attach to the candidate. The very existence of a disqualifying circumstance makes
the candidate ineligible. Knowledge by the electorate of a candidate’s disqualification is not
necessary before a qualified candidate who placed second to a disqualified one can be proclaimed
as the winner. The second-placer in the vote count is actually the first-placer among the qualified
candidates.

That the disqualified candidate has already been proclaimed and has assumed office is of no
moment. The subsequent disqualification based on a substantive ground that existed prior to the
filing of the certificate of candidacy voids not only the COC but also the proclamation.
Section 6 of R.A. No. 6646 provides:

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

There was no chance for Arnado’s proclamation to be suspended under this rule because Arnado
failed to file his answer to the petition seeking his disqualification. Arnado only filed his Answer on 15
June 2010, long after the elections and after he was already proclaimed as the winner.

The disqualifying circumstance surrounding Arnado’s candidacy involves his citizenship. It does not
involve the commission of election offenses as provided for in the first sentence of Section 68 of the
Omnibus Election Code, the effect of which is to disqualify the individual from continuing as a
candidate, or if he has already been elected, from holding the office.

The disqualifying circumstance affecting Arnado is his citizenship. As earlier discussed, Arnado was
both a Filipino and an American citizen when he filed his certificate of candidacy. He was a dual
citizen disqualified to run for public office based on Section 40(d) of the Local Government Code.

Section 40 starts with the statement "The following persons are disqualified from running for any
elective local position." The prohibition serves as a bar against the individuals who fall under any of
the enumeration from participating as candidates in the election.

With Arnado being barred from even becoming a candidate, his certificate of candidacy is thus
rendered void from the beginning. It could not have produced any other legal effect except that
Arnado rendered it impossible to effect his disqualification prior to the elections because he filed his
answer to the petition when the elections were conducted already and he was already proclaimed
the winner.

To hold that such proclamation is valid is to negate the prohibitory character of the disqualification
which Arnado possessed even prior to the filing of the certificate of candidacy. The affirmation of
Arnado's disqualification, although made long after the elections, reaches back to the filing of the
certificate of candidacy. Arnado is declared to be not a candidate at all in the May 201 0 elections.

Arnado being a non-candidate, the votes cast in his favor should not have been counted. This leaves
Maquiling as the qualified candidate who obtained the highest number of votes. Therefore, the rule
on succession under the Local Government Code will not apply.

WHEREFORE, premises considered, the Petition is GRANTED. The Resolution of the COMELEC
En Bane dated 2 February 2011 is hereby ANNULLED and SET ASIDE. Respondent ROMMEL
ARNADO y CAGOCO is disqualified from running for any local elective position. CASAN MACODE
MAQUILING is hereby DECLARED the duly elected Mayor of Kauswagan, Lanao del Norte in the 10
May 2010 elections.

This Decision is immediately executory.

Let a copy of this Decision be served personally upon the parties and the Commission on Elections.
No pronouncement as to costs.

SO ORDERED.

G.R. No. 179313               September 17, 2009

MAKIL U. PUNDAODAYA, Petitioner,
vs.
COMMISSION ON ELECTIONSN and ARSENIO DENSING NOBLE, Respondents.

DECISION

YNARES-SANTIAGO, J.:

This petition1 for certiorari under Rule 65 assails the August 3, 2007 Resolution 2 of the Commission
on Elections (COMELEC) En Banc in SPA No. 07-202, which declared private respondent Arsenio
Densing Noble (Noble) qualified to run for municipal mayor of Kinoguitan, Misamis Oriental, in the
May 14, 2007 Synchronized National and Local Elections.

The facts are as follows:

Petitioner Makil U. Pundaodaya (Pundaodaya) is married to Judith Pundaodaya, who ran against
Noble for the position of municipal mayor of Kinoguitan, Misamis Oriental in the 2007 elections.

On March 27, 2007, Noble filed his Certificate of Candidacy, indicating therein that he has been a
resident of Purok 3, Barangay Esperanza, Kinoguitan, Misamis Oriental for 15 years.

On April 3, 2007, Pundaodaya filed a petition for disqualification 3 against Noble docketed as SPA
No. 07-202, alleging that the latter lacks the residency qualification prescribed by existing laws for
elective local officials; that he never resided nor had any physical presence at a fixed place in Purok
3, Barangay Esperanza, Kinoguitan, Misamis Oriental; and that he does not appear to have the
intention of residing therein permanently. Pundaodaya claimed that Noble is in fact a resident of
Lapasan, Cagayan de Oro City, where he also maintains a business called OBERT Construction
Supply.

In his Answer,4 Noble averred that he is a registered voter and resident of Barangay Esperanza,
Kinoguitan, Misamis Oriental; that on January 18, 1992, he married Bernadith Go, the daughter of
then Mayor Narciso Go of Kinoguitan, Misamis Oriental; that he has been engaged in electoral
activities since his marriage; and that he voted in the said municipality in the 1998, 2001 and 2004
elections.

In a resolution dated May 13, 2007, 5 the Second Division of the COMELEC ruled in favor of
Pundaodaya and disqualified Noble from running as mayor, thus:

Respondent Noble’s claim that he is a registered voter and has actually voted in the past three (3)
elections in the said municipality does not sufficiently establish that he has actually elected residency
at Kinoguitan, Misamis Oriental. Neither does campaigning in previous elections sufficiently establish
residence.

Respondent Noble failed to show that he has indeed acquired domicile at Kinoguitan, Misamis
Oriental. He failed to prove not only his bodily presence in the new locality but has likewise failed to
show that he intends to remain at Kinoguitan, Misamis Oriental and abandon his residency at
Lapasan, Cagayan de Oro City.

WHEREFORE, premises considered, the instant Petition to Disqualify Aresnio Densing Noble is
hereby GRANTED.

SO ORDERED.6

Noble filed a motion for reconsideration of the above resolution. In the meantime, he garnered the
highest number of votes and was proclaimed the winning candidate on May 15, 2007. Pundaodaya
then filed an Urgent Motion to Annul Proclamation.7

On August 3, 2007, the COMELEC En Banc reversed the decision of the Second Division and
declared Noble qualified to run for the mayoralty position.

The COMELEC En Banc held that when Noble married Bernadith Go on January 18, 1992, the
couple has since resided in Kinoguitan, Misamis Oriental; that he was a registered voter and that he
participated in the last three elections; and although he is engaged in business in Cagayan de Oro
City, the fact that he resides in Kinoguitan and is a registered voter and owns property thereat,
sufficiently meet the residency requirement. 8 Thus:

WHEREFORE, premises considered, the Commission (en banc) RESOLVED, as it hereby

RESOLVES, to GRANT the instant Motion for Reconsideration and to REVERSE AND SET ASIDE
the Resolution promulgated on May 13, 2007 issued by the Commission (Second Division).

ACCORDINGLY, respondent ARSENIO DENSING NOBLE is QUALIFIED to run for the local
elective position of Municipal Mayor of the Municipality of Kinoguitan, Misamis Oriental in the May
14, 2007 Synchronized National and Local Elections.

SO ORDERED.9

Pundaodaya filed the instant petition for certiorari, alleging that the COMELEC En Banc acted with
grave abuse of discretion when it declared Noble qualified to run; when it did not annul Noble’s
proclamation; and when it failed to proclaim the true winning candidate, Judith Pundaodaya.

In a resolution dated November 13, 2007, 10 the Court required the respondents to comment on the
petition.

Public respondent, through the Office of the Solicitor General, filed a Manifestation and
Motion11 praying that it be excused from filing a separate comment and that the said pleading be
considered sufficient compliance with the November 13, 2007 Resolution.

Meanwhile, for Noble’s failure to comply, the Court issued Resolutions 12 dated July 15, 2008 and
December 9, 2008 requiring him to show cause why he should not be disciplinarily dealt with or held
in contempt, imposing a fine of ₱1,000.00, and requiring him to file a comment. On June 2, 2009, the
Court deemed Noble to have waived the filing of the comment. 13

The issues for resolution are: whether the COMELEC En Banc gravely abused its discretion: 1) in
declaring Noble qualified to run for the mayoralty position; and 2) in failing to order the annulment of
Noble’s proclamation and refusing to proclaim Judith Pundaodaya as the winning candidate.
Section 39 of Republic Act No. 7160, otherwise known as the Local Government Code, requires that
an elective local official must be a resident in the barangay, municipality, city or province where he
intends to serve for at least one year immediately preceding the election. 14

In Japzon v. Commission on Elections,15 it was held that 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)."

In Domino v. Commission on Elections,16 the Court explained that domicile denotes a fixed

permanent residence to which, whenever absent for business, pleasure, or some other reasons, one
intends to return. It is a question of intention and circumstances. In the consideration of
circumstances, three rules must be borne in mind, namely: (1) that a man must have a residence or
domicile somewhere; (2) when once established it remains until a new one is acquired; and (3) a
man can have but one residence or domicile at a time. 1avvphi1

If one wishes to successfully effect a change of domicile, he must demonstrate an actual removal or
an actual change of domicile, a bona fide intention of abandoning the former place of residence and
establishing a new one, and definite acts which correspond with the purpose. 17 Without clear and
positive proof of the concurrence of these three requirements, the domicile of origin continues. 18

Records show that Noble’s domicile of origin was Lapasan, Cagayan de Oro City. However, he
claims to have chosen Kinoguitan, Misamis Oriental as his new domicile. To substantiate this, he
presented before the COMELEC his voter registration records;19 a Certification dated April 25, 2007
from Election Officer II Clavel Z. Tabada;20 his Marriage Certificate;21 and affidavits of residents of
Kinoguitan22 attesting that he established residence in the municipality after his marriage to
Bernadith Go. In addition, he presented receipts 23 from the Provincial Treasurer for payment of his
water bills, and Certifications from the Municipal Treasurer and Municipal Engineer that he has been
a consumer of the Municipal Water System since June 2003. To prove ownership of property, he
also presented a Deed of Sale24 over a real property dated June 3, 1996.

The above pieces of documentary evidence, however, fail to convince us that Noble successfully
effected a change of domicile. As correctly ruled by the COMELEC Second Division, private
respondent’s claim that he is a registered voter and has actually voted in the past 3 elections in
Kinoguitan, Misamis Oriental do not sufficiently establish that he has actually elected residency in
the said municipality. Indeed, while we have ruled in the past that voting gives rise to a strong
presumption of residence, it is not conclusive evidence thereof. 25 Thus, in Perez v. Commission on
Elections,26 we held that a person’s registration as voter in one district is not proof that he is not
domiciled in another district. The registration of a voter in a place other than his residence of origin is
not sufficient to consider him to have abandoned or lost his residence. 27

To establish a new domicile of choice, personal presence in the place must be coupled with conduct
indicative of that intention. It requires not only such bodily presence in that place but also a declared
and probable intent to make it one’s fixed and permanent place of abode. 28

In this case, Noble’s marriage to Bernadith Go does not establish his actual physical presence in
Kinoguitan, Misamis Oriental. Neither does it prove an intention to make it his permanent place of
residence. We are also not persuaded by his alleged payment of water bills in the absence of
evidence showing to which specific properties they pertain. And while Noble presented a Deed of
Sale for real property, the veracity of this document is belied by his own admission that he does not
own property in Kinoguitan, Misamis Oriental.29
On the contrary, we find that Noble has not abandoned his original domicile as shown by the
following: a) Certification dated April 12, 2007 of the Barangay Kagawad of Barangay Lapasan,
Cagayan de Oro City stating that Noble is a resident of the barangay; 30 b) Affidavit31 of the Barangay
Kagawad of Esperanza, Kinoguitan, Misamis Oriental dated April 14, 2007, attesting that Noble has
not resided in Barangay Esperanza in Kinoguitan; c) photos 32 and official receipts33 showing that
Noble and his wife maintain their residence and businesses in Lapasan; d) tax declarations 34 of real
properties in Cagayan de Oro City under the name of Noble; and e) the "Household Record of
Barangay Inhabitants"35 of Mayor Narciso Go, which did not include Noble or his wife, Bernadith Go,
which disproves Noble’s claim that he resides with his father-in-law.

From the foregoing, we find that Noble’s alleged change of domicile was effected solely for the
purpose of qualifying as a candidate in the 2007 elections. This we cannot allow. In Torayno, Sr. v.
Commission on Elections, 36 we held that the one-year residency requirement is aimed at excluding
outsiders "from taking advantage of favorable circumstances existing in that community for electoral
gain." Establishing residence in a community merely to meet an election law requirement defeats the
purpose of representation: to elect through the assent of voters those most cognizant and sensitive
to the needs of the community.37 Thus, we find Noble disqualified from running as municipal mayor of
Kinoguitan, Misamis Oriental in the 2007 elections.

Notwithstanding Noble’s disqualification, we find no basis for the proclamation of Judith

Pundaodaya, as mayor. The rules on succession under the Local Government Code, explicitly
provides:

SECTION 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and
Vice-Mayor. – If a permanent vacancy occurs in the office of the xxx mayor, the xxx vice-mayor
concerned shall become the xxx mayor.

xxxx

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

x x x x (Emphasis ours)

Thus, considering the permanent vacancy in the Office of the Mayor of Kinoguitan, Misamis Oriental
occasioned by Noble’s disqualification, the proclaimed Vice-Mayor shall then succeed as mayor. 38

WHEREFORE, the petition is GRANTED. The August 3, 2007 Resolution of the COMELEC En Banc
in SPA No. 07-202 declaring respondent Arsenio Densing Noble qualified to run as Mayor of
Kinoguitan, Misamis Oriental, is REVERSED AND SET ASIDE. In view of the permanent vacancy in
the Office of the Mayor of Kinoguitan, Misamis Oriental, the proclaimed Vice-Mayor is ORDERED to
succeed as Mayor.

SO ORDERED.

CONSUELO YNARES-SANTIAGO
Associate Justice
 G.R. No. 157870             November 3, 2008

SOCIAL JUSTICE SOCIETY (SJS), petitioner

vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY
(PDEA), respondents.

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

G.R. No. 158633             November 3, 2008

ATTY. MANUEL J. LASERNA, JR., petitioner

vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY, respondents.

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

G.R. No. 161658             November 3, 2008

AQUILINO Q. PIMENTEL, JR., petitioner

vs.
COMMISSION ON ELECTIONS, respondents.

DECISION

VELASCO, JR., J.:

In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise
known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing
of candidates for public office, students of secondary and tertiary schools, officers and employees of
public and private offices, and persons charged before the prosecutor's office with certain offenses,
among other personalities, is put in issue.

As far as pertinent, the challenged section reads as follows:

SEC. 36. Authorized Drug Testing. - Authorized drug testing shall be done by any government
forensic laboratories or by any of the drug testing laboratories accredited and monitored by the
DOH to safeguard the quality of the test results. x x x The drug testing shall employ, among
others, two (2) testing methods, the screening test which will determine the positive result as well
as the type of drug used and the confirmatory test which will confirm a positive screening test. x x
x The following shall be subjected to undergo drug testing:

xxxx

(c) Students of secondary and tertiary schools. - Students of secondary and tertiary schools shall,
pursuant to the related rules and regulations as contained in the school's student handbook and
with notice to the parents, undergo a random drug testing x x x;
 (d) Officers and employees of public and private offices. - Officers and employees of public and
private offices, whether domestic or overseas, shall be subjected to undergo a random drug test
as contained in the company's work rules and regulations, x x x for purposes of reducing the risk
in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt
with administratively which shall be a ground for suspension or termination, subject to the
provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law;

xxxx

(f) All persons charged before the prosecutor's office with a criminal offense having an imposable
penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory
drug test;

(g) All candidates for public office whether appointed or elected both in the national or local
government shall undergo a mandatory drug test.

In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs
use shall be subject to the provisions of Section 15 of this Act.

G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)

On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486,
prescribing the rules and regulations on the mandatory drug testing of candidates for public office in
connection with the May 10, 2004 synchronized national and local elections. The pertinent portions of the
said resolution read as follows:

WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:

SEC. 36. Authorized Drug Testing. - x x x

xxxx

(g) All candidates for public office x x x both in the national or local government shall undergo a
mandatory drug test.

WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and
employees must at all times be accountable to the people, serve them with utmost responsibility,
integrity, loyalty and efficiency;

WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the
quality of candidates they are electing and they will be assured that only those who can serve
with utmost responsibility, integrity, loyalty, and efficiency would be elected x x x.

NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the
Constitution, Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election
laws, RESOLVED to promulgate, as it hereby promulgates, the following rules and regulations on
the conduct of mandatory drug testing to candidates for public office[:]

SECTION 1. Coverage. - All candidates for public office, both national and local, in the May
10, 2004 Synchronized National and Local Elections shall undergo mandatory drug test in
government forensic laboratories or any drug testing laboratories monitored and accredited by the
Department of Health.
 SEC. 3. x x x

On March 25, 2004, in addition to the drug certificates filed with their respective offices, the
Comelec Offices and employees concerned shall submit to the Law Department two (2) separate
lists of candidates. The first list shall consist of those candidates who complied with the
mandatory drug test while the second list shall consist of those candidates who failed to comply x
x x.

SEC. 4. Preparation and publication of names of candidates. - Before the start of the campaign
period, the [COMELEC] shall prepare two separate lists of candidates. The first list shall consist
of those candidates who complied with the mandatory drug test while the second list shall consist
of those candidates who failed to comply with said drug test. x x x

SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate. - No person
elected to any public office shall enter upon the duties of his office until he has undergone
mandatory drug test and filed with the offices enumerated under Section 2 hereof the drug test
certificate herein required. (Emphasis supplied.)

Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re - election in the May
10, 2004 elections,1 filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify
Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being
unconstitutional in that they impose a qualification for candidates for senators in addition to those already
provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing Resolution No.
6486.

Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states:

SECTION 3. No person shall be a Senator unless he is a natural - born citizen of the Philippines,
and, on the day of the election, is at least thirty - five years of age, able to read and write, a
registered voter, and a resident of the Philippines for not less than two years immediately
preceding the day of the election.

According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be
a candidate for, elected to, and be a member of the Senate. He says that both the Congress and
COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other
candidates, to undergo a mandatory drug test, create an additional qualification that all candidates for
senator must first be certified as drug free. He adds that there is no provision in the Constitution
authorizing the Congress or COMELEC to expand the qualification requirements of candidates for
senator.

G.R. No. 157870 (Social Justice Society v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)

In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political
party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency
(PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are
constitutionally infirm. For one, the provisions constitute undue delegation of legislative power when they
give unbridled discretion to schools and employers to determine the manner of drug testing. For another,
the provisions trench in the equal protection clause inasmuch as they can be used to harass a student or
an employee deemed undesirable. And for a third, a person's constitutional right against unreasonable
searches is also breached by said provisions.

G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)
Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and
Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional
for infringing on the constitutional right to privacy, the right against unreasonable search and seizure, and
the right against self - incrimination, and for being contrary to the due process and equal protection
guarantees.

The Issue on Locus Standi

First off, we shall address the justiciability of the cases at bench and the matter of the standing of
petitioners SJS and Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to
allege any incident amounting to a violation of the constitutional rights mentioned in their separate
petitions.2

It is basic that the power of judicial review can only be exercised in connection with a bona
fide controversy which involves the statute sought to be reviewed. 3 But even with the presence of an
actual case or controversy, the Court may refuse to exercise judicial review unless the constitutional
question is brought before it by a party having the requisite standing to challenge it. 4 To have standing,
one must establish that he or she has suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the
injury is likely to be redressed by a favorable action. 5

The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non - traditional
plaintiffs, like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as
when the matter is of transcendental importance, of overarching significance to society, or of paramount
public interest.6 There is no doubt that Pimentel, as senator of the Philippines and candidate for the May
10, 2004 elections, possesses the requisite standing since he has substantial interests in the subject
matter of the petition, among other preliminary considerations. Regarding SJS and Laserna, this Court is
wont to relax the rule on locus standi owing primarily to the transcendental importance and the paramount
public interest involved in the enforcement of Sec. 36 of RA 9165.

The Consolidated Issues

The principal issues before us are as follows:

(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for
candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for
senator in addition to those laid down by the Constitution? and

(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these
paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the
equal protection clause? Or do they constitute undue delegation of legislative power?

Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)

In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally
impose an additional qualification on candidates for senator. He points out that, subject to the provisions
on nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3,
Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5)
residency. Beyond these stated qualification requirements, candidates for senator need not possess any
other qualification to run for senator and be voted upon and elected as member of the Senate. The
Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard,
evade, or weaken the force of a constitutional mandate, 7 or alter or enlarge the Constitution.
Pimentel's contention is well - taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby
declared as, unconstitutional. It is basic that if a law or an administrative rule violates any norm of the
Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all
laws must conform; no act shall be valid if it conflicts with the Constitution. 8 In the discharge of their
defined functions, the three departments of government have no choice but to yield obedience to the
commands of the Constitution. Whatever limits it imposes must be observed. 9

Congress' inherent legislative powers, broad as they may be, are subject to certain limitations. As early as
1927, in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in
the following wise:

Someone has said that the powers of the legislative department of the Government, like the
boundaries of the ocean, are unlimited. In constitutional governments, however, as well as
governments acting under delegated authority, the powers of each of the departments x x x are
limited and confined within the four walls of the constitution or the charter, and each department
can only exercise such powers as are necessarily implied from the given powers. The
Constitution is the shore of legislative authority against which the waves of legislative enactment
may dash, but over which it cannot leap.10

Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional
limitations which circumscribe both the exercise of the power itself and the allowable subjects of
legislation.11 The substantive constitutional limitations are chiefly found in the Bill of Rights 12 and other
provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for
senators.

In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or
promulgating rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates
for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for
senator to meet such additional qualification, the COMELEC, to be sure, is also without such power. The
right of a citizen in the democratic process of election should not be defeated by unwarranted impositions
of requirement not otherwise specified in the Constitution. 13

Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively
enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched,
said Sec. 36(g) unmistakably requires a candidate for senator to be certified illegal - drug clean, obviously
as a pre - condition to the validity of a certificate of candidacy for senator or, with like effect, a
condition sine qua non to be voted upon and, if proper, be proclaimed as senator - elect. The COMELEC
resolution completes the chain with the proviso that "[n]o person elected to any public office shall enter
upon the duties of his office until he has undergone mandatory drug test." Viewed, therefore, in its proper
context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add another qualification
layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether or
not the drug - free bar set up under the challenged provision is to be hurdled before or after election is
really of no moment, as getting elected would be of little value if one cannot assume office for non -
compliance with the drug - testing requirement.

It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does not
expressly state that non - compliance with the drug test imposition is a disqualifying factor or would work
to nullify a certificate of candidacy. This argument may be accorded plausibility if the drug test
requirement is optional. But the particular section of the law, without exception, made drug - testing on
those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer the adverse
consequences for not adhering to the statutory command. And since the provision deals with candidates
for public office, it stands to reason that the adverse consequence adverted to can only refer to and
revolve around the election and the assumption of public office of the candidates. Any other construal
would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without meaning and
effect whatsoever.
While it is anti - climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer
enforceable, for by its terms, it was intended to cover only the May 10, 2004 synchronized elections and
the candidates running in that electoral event. Nonetheless, to obviate repetition, the Court deems it
appropriate to review and rule, as it hereby rules, on its validity as an implementing issuance.

It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is
rooted on its having infringed the constitutional provision defining the qualification or eligibility
requirements for one aspiring to run for and serve as senator.

SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)

The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level
students and public and private employees, while mandatory, is a random and suspicionless
arrangement. The objective is to stamp out illegal drug and safeguard in the process "the well being of
[the] citizenry, particularly the youth, from the harmful effects of dangerous drugs." This statutory purpose,
per the policy - declaration portion of the law, can be achieved via the pursuit by the state of "an intensive
and unrelenting campaign against the trafficking and use of dangerous drugs x x x through an integrated
system of planning, implementation and enforcement of anti - drug abuse policies, programs and
projects."14 The primary legislative intent is not criminal prosecution, as those found positive for illegal
drug use as a result of this random testing are not necessarily treated as criminals. They may even be
exempt from criminal liability should the illegal drug user consent to undergo rehabilitation. Secs. 54 and
55 of RA 9165 are clear on this point:

Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and

Rehabilitation. - A drug dependent or any person who violates Section 15 of this Act may, by
himself/herself or through his/her parent, [close relatives] x x x apply to the Board x x x for
treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring
forth the matter to the Court which shall order that the applicant be examined for drug
dependency. If the examination x x x results in the certification that the applicant is a drug
dependent, he/she shall be ordered by the Court to undergo treatment and rehabilitation in a
Center designated by the Board x x x.

xxxx

Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program. - A drug
dependent under the voluntary submission program, who is finally discharged from confinement,
shall be exempt from the criminal liability under Section 15 of this Act subject to the following
conditions:

xxxx

School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and
addictive effects of drugs. Maturing nervous systems of the young are more critically impaired by
intoxicants and are more inclined to drug dependency. Their recovery is also at a depressingly low rate. 15

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by
the guarantee against unreasonable search and seizure 16 under Sec. 2, Art. III17 of the Constitution. But
while the right to privacy has long come into its own, this case appears to be the first time that the validity
of a state - decreed search or intrusion through the medium of mandatory random drug testing among
students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these
proceedings is veritably one of first impression.
US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug
testing among school children, we turn to the teachings of Vernonia School District 47J v. Acton
(Vernonia) and Board of Education of Independent School District No. 92 of Pottawatomie County, et al.
v. Earls, et al. (Board of Education),18 both fairly pertinent US Supreme Court - decided cases involving
the constitutionality of governmental search.

In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their
respective institutions following the discovery of frequent drug use by school athletes. After consultation
with the parents, they required random urinalysis drug testing for the school's athletes. James Acton, a
high school student, was denied participation in the football program after he refused to undertake the
urinalysis drug testing. Acton forthwith sued, claiming that the school's drug testing policy violated, inter
alia, the Fourth Amendment19 of the US Constitution.

The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the
following: (1) schools stand in loco parentis over their students; (2) school children, while not shedding
their constitutional rights at the school gate, have less privacy rights; (3) athletes have less privacy rights
than non - athletes since the former observe communal undress before and after sports events; (4) by
joining the sports activity, the athletes voluntarily subjected themselves to a higher degree of school
supervision and regulation; (5) requiring urine samples does not invade a student's privacy since a
student need not undress for this kind of drug testing; and (6) there is need for the drug testing because
of the dangerous effects of illegal drugs on the young. The US Supreme Court held that the policy
constituted reasonable search under the Fourth20 and 14th Amendments and declared the random drug -
testing policy constitutional.

In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test
for high school students desiring to join extra - curricular activities. Lindsay Earls, a member of the show
choir, marching band, and academic team declined to undergo a drug test and averred that the drug -
testing policy made to apply to non - athletes violated the Fourth and 14th Amendments. As Earls argued,
unlike athletes who routinely undergo physical examinations and undress before their peers in locker
rooms, non - athletes are entitled to more privacy.

The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non -
athletes on the basis of the school's custodial responsibility and authority. In so ruling, said court made no
distinction between a non - athlete and an athlete. It ratiocinated that schools and teachers act in place of
the parents with a similar interest and duty of safeguarding the health of the students. And in holding that
the school could implement its random drug - testing policy, the Court hinted that such a test was a kind
of search in which even a reasonable parent might need to engage.

In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1)
schools and their administrators stand in loco parentis with respect to their students; (2) minor students
have contextually fewer rights than an adult, and are subject to the custody and supervision of their
parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health
and well - being of their students and may adopt such measures as may reasonably be necessary to
discharge such duty; and (4) schools have the right to impose conditions on applicants for admission that
are fair, just, and non-discriminatory.

Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of
RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional.
Indeed, it is within the prerogative of educational institutions to require, as a condition for admission,
compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not
absolute; it is subject to fair, reasonable, and equitable requirements.

The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the
well - being of the people,21 particularly the youth and school children who usually end up as victims.
Accordingly, and until a more effective method is conceptualized and put in motion, a random drug testing
of students in secondary and tertiary schools is not only acceptable but may even be necessary if the
safety and interest of the student population, doubtless a legitimate concern of the government, are to be
promoted and protected. To borrow from Vernonia, "[d]eterring drug use by our Nation's schoolchildren is
as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs"; the
necessity for the State to act is magnified by the fact that the effects of a drug - infested school are visited
not just upon the users, but upon the entire student body and faculty. 22 Needless to stress, the random
testing scheme provided under the law argues against the idea that the testing aims to incriminate
unsuspecting individual students.

Just as in the case of secondary and tertiary level students, the mandatory but random drug test
prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable,
albeit not exactly for the same reason. The Court notes in this regard that petitioner SJS, other than
saying that "subjecting almost everybody to drug testing, without probable cause, is unreasonable, an
unwarranted intrusion of the individual right to privacy,"23 has failed to show how the mandatory, random,
and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and
constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the
Constitution.24 Petitioner Laserna's lament is just as simplistic, sweeping, and gratuitous and does not
merit serious consideration. Consider what he wrote without elaboration:

The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the
constitutionality of mandatory drug tests in the school and the workplaces. The US courts have
been consistent in their rulings that the mandatory drug tests violate a citizen's constitutional right
to privacy and right against unreasonable search and seizure. They are quoted extensively
hereinbelow.25

The essence of privacy is the right to be left alone. 26 In context, the right to privacy means the right to be
free from unwarranted exploitation of one's person or from intrusion into one's private activities in such a
way as to cause humiliation to a person's ordinary sensibilities. 27 And while there has been general
agreement as to the basic function of the guarantee against unwarranted search, "translation of the
abstract prohibition against ‘unreasonable searches and seizures' into workable broad guidelines for the
decision of particular cases is a difficult task," to borrow from C. Camara v. Municipal Court.28 Authorities
are agreed though that the right to privacy yields to certain paramount rights of the public and defers to
the state's exercise of police power.29

As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held,
"reasonableness" is the touchstone of the validity of a government search or intrusion. 30 And whether a
search at issue hews to the reasonableness standard is judged by the balancing of the government -
mandated intrusion on the individual's privacy interest against the promotion of some compelling state
interest.31 In the criminal context, reasonableness requires showing of probable cause to be personally
determined by a judge. Given that the drug - testing policy for employees--and students for that matter--
under RA 9165 is in the nature of administrative search needing what was referred to in Vernonia as
"swift and informal disciplinary procedures," the probable - cause standard is not required or even
practicable. Be that as it may, the review should focus on the reasonableness of the challenged
administrative search in question.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which
the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes.
In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of
the employees and the reasonableness of drug testing requirement. The employees' privacy interest in an
office is to a large extent circumscribed by the company's work policies, the collective bargaining
agreement, if any, entered into by management and the bargaining unit, and the inherent right of the
employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated
office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld.
Just as defining as the first factor is the character of the intrusion authorized by the challenged law.
Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated
in Ople v. Torres, is the enabling law authorizing a search "narrowly drawn" or "narrowly focused"? 32

The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules
and regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation
that would unduly embarrass the employees or place them under a humiliating experience. While every
officer and employee in a private establishment is under the law deemed forewarned that he or she may
be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to
discourage drug use by not telling in advance anyone when and who is to be tested. And as may be
observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by providing
that the employees concerned shall be subjected to "random drug test as contained in the company's
work rules and regulations x x x for purposes of reducing the risk in the work place."

For another, the random drug testing shall be undertaken under conditions calculated to protect as much
as possible the employee's privacy and dignity. As to the mechanics of the test, the law specifies that the
procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless
to ensure as much as possible the trustworthiness of the results. But the more important consideration
lies in the fact that the test shall be conducted by trained professionals in access - controlled laboratories
monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an
accurate chain of custody.33 In addition, the IRR issued by the DOH provides that access to the drug
results shall be on the "need to know" basis;34 that the "drug test result and the records shall be [kept]
confidential subject to the usual accepted practices to protect the confidentiality of the test
results."35 Notably, RA 9165 does not oblige the employer concerned to report to the prosecuting
agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs
Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into the
employees' privacy, under RA 9165, is accompanied by proper safeguards, particularly against
embarrassing leakages of test results, and is relatively minimal.

To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect
the well - being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The
law intends to achieve this through the medium, among others, of promoting and resolutely pursuing a
national drug abuse policy in the workplace via a mandatory random drug test. 36 To the Court, the need
for drug testing to at least minimize illegal drug use is substantial enough to override the individual's
privacy interest under the premises. The Court can consider that the illegal drug menace cuts across
gender, age group, and social - economic lines. And it may not be amiss to state that the sale,
manufacture, or trafficking of illegal drugs, with their ready market, would be an investor's dream were it
not for the illegal and immoral components of any of such activities. The drug problem has hardly abated
since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid
back stance with respect to this modern - day scourge. Drug enforcement agencies perceive a mandatory
random drug test to be an effective way of preventing and deterring drug use among employees in private
offices, the threat of detection by random testing being higher than other modes. The Court holds that the
chosen method is a reasonable and enough means to lick the problem.

Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the
employees, the compelling state concern likely to be met by the search, and the well - defined limits set
forth in the law to properly guide authorities in the conduct of the random testing, we hold that the
challenged drug test requirement is, under the limited context of the case, reasonable and, ergo,
constitutional.

Like their counterparts in the private sector, government officials and employees also labor under
reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers,
all enacted to promote a high standard of ethics in the public service. 37 And if RA 9165 passes the norm
of reasonableness for private employees, the more reason that it should pass the test for civil servants,
who, by constitutional command, are required to be accountable at all times to the people and to serve
them with utmost responsibility and efficiency.38

Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation
of power hardly commends itself for concurrence. Contrary to its position, the provision in question is not
so extensively drawn as to give unbridled options to schools and employers to determine the manner of
drug testing. Sec. 36 expressly provides how drug testing for students of secondary and tertiary schools
and officers/employees of public/private offices should be conducted. It enumerates the persons who
shall undergo drug testing. In the case of students, the testing shall be in accordance with the school
rules as contained in the student handbook and with notice to parents. On the part of officers/employees,
the testing shall take into account the company's work rules. In either case, the random procedure shall
be observed, meaning that the persons to be subjected to drug test shall be picked by chance or in an
unplanned way. And in all cases, safeguards against misusing and compromising the confidentiality of the
test results are established.

Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH,
Department of the Interior and Local Government, Department of Education, and Department of Labor
and Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the
participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA
9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to determine
how often, under what conditions, and where the drug tests shall be conducted.

The validity of delegating legislative power is now a quiet area in the constitutional landscape. 39 In the
face of the increasing complexity of the task of the government and the increasing inability of the
legislature to cope directly with the many problems demanding its attention, resort to delegation of power,
or entrusting to administrative agencies the power of subordinate legislation, has become imperative, as
here.

Laserna Petition (Constitutionality of Sec. 36[c], [d],

[f], and [g] of RA 9165)

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for
mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability
of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver
by the students of their right to privacy when they seek entry to the school, and from their voluntarily
submitting their persons to the parental authority of school authorities. In the case of private and public
employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing
proceeds from the reasonableness of the drug test policy and requirement.

We find the situation entirely different in the case of persons charged before the public prosecutor's office
with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative
concepts in the mandatory drug testing are "randomness" and "suspicionless." In the case of persons
charged with a crime before the prosecutor's office, a mandatory drug testing can never be random or
suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made
defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion.
When persons suspected of committing a crime are charged, they are singled out and are impleaded
against their will. The persons thus charged, by the bare fact of being haled before the prosecutor's office
and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to
the procedure, let alone waive their right to privacy. 40 To impose mandatory drug testing on the accused is
a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated
objectives of RA 9165. Drug testing in this case would violate a persons' right to privacy guaranteed
under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to
incriminate themselves.
WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec.
36(g) of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY
GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165
CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are,
accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs.

SO ORDERED.
 G.R. No. 203766 April 2, 2013

ATONG PAGLAUM, INC., represented by its President, Mr. Alan Igot, Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. Nos. 203818-19

AKO BICOL POLITICAL PARTY (AKB), Petitioner,

vs.

COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 203922

ASSOCIATION OF PHILIPPINE ELECTRIC COOPERATIVES (APEC),represented by its President Congressman

Ponciano D. Payuyo, Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 203936

AKSYON MAGSASAKA-PARTIDO TINIG NG MASA, represented by its President Michael Abas Kida,
Petitioner,
vs.

COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 203958

KAPATIRAN NG MGA NAKULONG NA WALANG SALA, INC. (KAKUSA), Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 203960

1st CONSUMERS ALLIANCE FOR RURAL ENERGY, INC. (1-CARE), Petitioner,

vs.

COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 203976

ALLIANCE FOR RURAL AND AGRARIAN RECONSTRUCTION, INC. (ARARO), Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

x-----------------------x
G.R. No. 203981

ASSOCIATION FOR RIGHTEOUSNESS ADVOCACY ON LEADERSHIP (ARAL) PARTY-LIST, represented herein

by Ms. Lourdes L. Agustin, the party’s Secretary General, Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204002

ALLIANCE FOR RURAL CONCERNS, Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204094

ALLIANCE FOR NATIONALISM AND DEMOCRACY (ANAD), Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204100

1-BRO PHILIPPINE GUARDIANS BROTHERHOOD, INC., (1BRO-PGBI) formerly PGBI, Petitioner,

vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204122

1 GUARDIANS NATIONALIST PHILIPPINES, INC., (1GANAP/GUARDIANS), Petitioner,

vs.

COMMISSION ON ELECTIONS EN BANC composed of SIXTO S. BRILLANTES, JR., Chairman, RENE V.

SARMIENTO, Commissioner,LUCENITO N. TAGLE, Commissioner,ARMANDO C. VELASCO,
Commissioner,ELIAS R. YUSOPH, Commissioner, andCHRISTIAN ROBERT S. LIM, Commissioner,
Respondents.

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

G.R. No. 204125

AGAPAY NG INDIGENOUS PEOPLES RIGHTS ALLIANCE, INC. (A-IPRA), represented by its Secretary
General,Ronald D. Macaraig, Petitioner,

vs.

COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204126

KAAGAPAY NG NAGKAKAISANG AGILANG PILIPINONG MAGSASAKA (KAP), formerly known as AKO AGILA
NG NAGKAKAISANG MAGSASAKA (AKO AGILA), represented by its Secretary General, Leo R. San
Buenaventura, Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204139

ALAB NG MAMAMAHAYAG (ALAM), represented by Atty. Berteni Cataluña Causing, Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204141

BANTAY PARTY LIST, represented by Maria Evangelina F. Palparan, President, Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204153

PASANG MASDA NATIONWIDE PARTY by its President Roberto "Ka Obet" Martin, Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondents.

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

G.R. No. 204158

ABROAD PARTY LIST, Petitioner,

vs.

COMMISSION ON ELECTIONS, CHAIRMAN SIXTO S. BRILLANTES, JR., COMMISSIONERS RENE V.

SARMIENTO, ARMANDO C. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S. LIM, MARIA GRACIA CIELO
M. PADACA, LUCENITO TAGLE, AND ALL OTHER PERSONS ACTING ON THEIR BEHALF, Respondents.

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

G.R. No. 204174

AANGAT TAYO PARTY LIST-PARTY, represented by its President Simeon T. Silva, Jr., Petitioner,

vs.

COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204216

COCOFED-PHILIPPINE COCONUT PRODUCERS FEDERATION, INC., Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204220

ABANG LINGKOD PARTY-LIST, Petitioner,

vs.

COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204236

FIRM 24-K ASSOCIATION, INC., Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204238

ALLIANCE OF BICOLNON PARTY (ABP), Petitioner,

vs.

COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204239

GREEN FORCE FOR THE ENVIRONMENT SONS AND DAUGHTERS OF MOTHER EARTH (GREENFORCE),
Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204240

AGRI-AGRA NA REPORMA PARA SA MAGSASAKA NG PILIPINAS MOVEMENT (AGRI), represented by its
Secretary General, Michael Ryan A. Enriquez, Petitioner,

vs.

COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204263

A BLESSED PARTY LIST A.K.A. BLESSEDFEDERATION OF FARMERS AND FISHERMEN INTERNATIONAL, INC.,
Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204318

UNITED MOVEMENT AGAINST DRUGS FOUNDATION (UNIMAD) PARTY-LIST, Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204321

ANG AGRIKULTURA NATIN ISULONG (AANI), represented by its Secretary General Jose C. Policarpio, Jr.,
Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204323

BAYANI PARTYLIST as represented byHomer Bueno, Fitrylin Dalhani,Israel de Castro, Dante Navarroand
Guiling Mamondiong, Petitioner,

vs.

COMMISSION ON ELECTIONS, CHAIRMAN SIXTO S. BRILLANTES, JR., COMMISSIONERS RENE V.

SARMIENTO, LUCENITO N. TAGLE, ARMANDO C. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S. LIM,
and MARIA GRACIA CIELO M. PADACA, Respondents.

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

G.R. No. 204341

ACTION LEAGUE OF INDIGENOUS MASSES(ALIM) PARTY-LIST, represented herein by its President Fatani
S. Abdul Malik, Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204356

BUTIL FARMERS PARTY, Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204358

ALLIANCE OF ADVOCATES IN MININGADVANCEMENT FOR NATIONAL PROGRESS (AAMA), Petitioner,

vs.

COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204359

SOCIAL MOVEMENT FOR ACTIVEREFORM AND TRANSPARENCY (SMART), represented by its Chairman,
Carlito B. Cubelo, Petitioner,

vs.

COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204364

ADHIKAIN AT KILUSAN NG ORDINARYONG-TAO, PARA SA LUPA, PABAHAY, HANAPBUHAY AT KAUNLARAN

(AKO BUHAY), Petitioner,

vs.

COMMISSION ON ELECTIONS EN BANC, SIXTO S. BRILLANTES, JR., RENE V. SARMIENTO, LUCENITO N.

TAGLE, ARMANDO C. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S. LIM, and MA. GRACIA CIELO M.
PADACA, in their capacities as Commissioners thereof, Respondents.

x-----------------------x
G.R. No. 204367

AKBAY KALUSUGAN INCORPORATION(AKIN), Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204370

AKO AN BISAYA (AAB), represented by itsSecretary General, Rodolfo T. Tuazon, Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204374

BINHI-PARTIDO NG MGA MAGSASAKA PARA SA MGA MAGSASAKA, Petitioner,

vs.

COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204379

ALAGAD NG SINING (ASIN) represented by its President, Faye Maybelle Lorenz, Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204394

ASSOCIATION OF GUARD UTILITY HELPER, AIDER, RIDER, DRIVER/DOMESTIC HELPER, JANITOR, AGENT
AND NANNY OF THE PHILIPPINES, INC. (GUARDJAN), Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204402

KALIKASAN PARTY-LIST, represented by its President, Clemente G. Bautista, Jr., and Secretary General,
Frances Q. Quimpo, Petitioner,

vs.

COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204408

PILIPINO ASSOCIATION FOR COUNTRY-URBAN POOR YOUTH ADVANCEMENT AND WELFARE (PACYAW),
Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

x-----------------------x
G.R. No. 204410

1-UNITED TRANSPORT KOALISYON (1-UTAK), Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204421

COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE PHILIPPINES, INC. SENIOR CITIZEN PARTY-LIST,
represented herein by its 1st nominee and Chairman, Francisco G. Datol, Jr., Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204425

COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE PHILIPPINES, INC., Petitioner,

vs.

COMMISSION ON ELECTIONS and ANY OF ITS OFFICERS AND AGENTS, ACTING FOR AND IN ITS BEHALF,
INCLUDING THE CHAIR AND MEMBERSOF THE COMMISSION, Respondents.

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

G.R. No. 204426

ASSOCIATION OF LOCAL ATHLETICS ENTREPRENEURS AND HOBBYISTS, INC. (ALA-EH), Petitioner,

vs.

COMMISSION ON ELECTIONS EN BANC, SIXTO S. BRILLANTES, JR., RENE V. SARMIENTO, LUCENITO N.

TAGLE, ARMANDO C. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S. LIM, and MA. GRACIA CIELO M.
PADACA, in their respective capacities as COMELEC Chairperson and Commissioners, Respondents.

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

G.R. No. 204428

ANG GALING PINOY (AG), represented by its Secretary General, Bernardo R. Corella, Jr., Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204435

1 ALLIANCE ADVOCATING AUTONOMY PARTY (1AAAP), Petitioner,

vs.

COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204436

ABYAN ILONGGO PARTY (AI), represented byits Party President, Rolex T. Suplico, Petitioner,

vs.

COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204455

MANILA TEACHER SAVINGS AND LOAN ASSOCIATION, INC., Petitioner,

vs.

COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204484

PARTIDO NG BAYAN ANG BIDA (PBB), represented by its Secretary General, Roger M. Federazo,
Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204485

ALLIANCE OF ORGANIZATIONS, NETWORKS AND ASSOCIATIONS OF THE PHILIPPINES, INC. (ALONA),

Petitioner,

vs.

COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204486

1st KABALIKAT NG BAYAN GINHAWANG SANGKATAUHAN (1st KABAGIS), Petitioner,

vs.

COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204490

PILIPINAS PARA SA PINOY (PPP), Petitioner,

vs.

COMMISSION ON ELECTIONS EN BANC, Respondent.

PERLAS-BERNABE,*

DECISION

CARPIO, J.:

The Cases

These cases constitute 54 Petitions for Certiorari and Petitions for Certiorari and Prohibition1 filed by 52
party-list groups and organizations assailing the Resolutions issued by the Commission on Elections
(COMELEC) disqualifying them from participating in the 13 May 2013 party-list elections, either by denial
of their petitions for registration under the party-list system, or cancellation of their registration and
accreditation as party-list organizations.

This Court resolved to consolidate the 54 petitions in the Resolutions dated 13 November 2012,2 20
November 2012,3 27 November 2012,4 4 December 2012,5 11 December 2012,6 and 19 February
2013.7
The Facts Pursuant to the provisions of Republic Act No. 7941 (R.A. No. 7941) and COMELEC Resolution
Nos. 9366 and 9531, approximately 280 groups and organizations registered and manifested their desire
to participate in the 13 May 2013 party-list elections.

G.R. No. SPP No. Group Grounds for Denial

A. Via the COMELEC En Banc’s automatic review of the COMELEC

Division’s resolutions approving registration of groups/organizations

Resolution dated 23 November 20128

1 204379 12-099

(PLM) Alagad ng

Sining (ASIN) - The "artists" sector is not

considered marginalized and

underrepresented;

- Failure to prove track

record; and

- Failure of the nominees to

qualify under RA 7941 and

Ang Bagong Bayani.

Omnibus Resolution dated 27 November 20129

2 204455 12-041

(PLM) Manila Teachers

Savings and

Loan

Association, Inc.

(Manila

Teachers) - A non-stock savings and

loan association cannot be

considered marginalized and

underrepresented; and
- The first and second

nominees are not teachers by

profession.

3 204426 12-011

(PLM) Association of

Local Athletics

Entrepreneurs

and Hobbyists,

Inc. (ALA-EH) - Failure to show that its

members belong to the

marginalized; and

- Failure of the nominees to

qualify.

Resolution dated 27 November 201210

4 204435 12-057

(PLM) 1 Alliance

Advocating

Autonomy Party

(1AAAP) - Failure of the nominees to

qualify: although registering

as a regional political party,

two of the nominees are not

residents of the region; and

four of the five nominees do

not belong to the

marginalized and underrepresented.

Resolution dated 27 November 201211

5 204367 12-104 (PL) Akbay

Kalusugan
(AKIN), Inc. - Failure of the group to show

that its nominees belong to

the urban poor sector.

Resolution dated 29 November 201212

6 204370 12-011 (PP) Ako An Bisaya

(AAB) - Failure to represent a

marginalized sector of

society, despite the formation

of a sectoral wing for the

benefit of farmers of Region

8;

- Constituency has district

representatives;

- Lack of track record in

representing peasants and

farmers; and

- Nominees are neither

farmers nor peasants.

Resolution dated 4 December 201213

7 204436 12-009 (PP),

12-165

(PLM) Abyan Ilonggo

Party (AI) - Failure to show that the

party represents a

marginalized and

underrepresented sector, as

the Province of Iloilo has

district representatives;

- Untruthful statements in the

memorandum; and

- Withdrawal of three of its

five nominees.

Resolution dated 4 December 201214

8 204485 12-175 (PL) Alliance of

Organizations,

Networks and Associations of

the Philippines,

Inc. (ALONA) - Failure to establish that the

group can represent 14

sectors; - The sectors of homeowners’

associations, entrepreneurs

and cooperatives are not

marginalized and

underrepresented; and

- The nominees do not belong

to the marginalized and

underrepresented.

B. Via the COMELEC En Banc’s review on motion for reconsideration

of the COMELEC Division’s resolutions denying registration of groups

and organizations

Resolution dated 7 November 201215

9 204139 12-127 (PL) Alab ng

Mamamahayag

(ALAM) - Failure to prove track

record as an organization;

- Failure to show that the

group actually represents the

marginalized and
underrepresented; and

- Failure to establish that the

group can represent all

sectors it seeks to represent.

Resolution dated 7 November 201216

10 204402 12-061 (PP) Kalikasan Party-List

(KALIKASAN) - The group reflects an

advocacy for the

environment, and is not

representative of the

marginalized and

underrepresented;

- There is no proof that

majority of its members

belong to the marginalized

and underrepresented;

- The group represents

sectors with conflicting

interests; and

- The nominees do not belong

to the sector which the group

claims to represent.

Resolution dated 14 November 201217

11 204394 12-145 (PL) Association of

Guard, Utility

Helper, Aider,

Rider, Driver/

Domestic

Helper,
Janitor, Agent

and

Nanny of the

Philippines, Inc.

(GUARDJAN) - Failure to prove

membership base and track

record;

- Failure to present activities

that sufficiently benefited its

intended constituency; and

- The nominees do not belong

to any of the sectors which

the group seeks to represent.

Resolution dated 5 December 201218

12 204490 12-073

(PLM) Pilipinas Para sa

Pinoy (PPP) - Failure to show that the

group represents a

marginalized and

underrepresented sector, as

Region 12 has district

representatives; and

- Failure to show a track

record of undertaking

programs for the welfare of

the sector the group seeks to

represent.

In a Resolution dated 5 December 2012,19 the COMELEC En Banc affirmed the COMELEC Second
Division’s resolution to grant Partido ng Bayan ng Bida’s (PBB) registration and accreditation as a political
party in the National Capital Region. However, PBB was denied participation in the 13 May 2013 party-
list elections because PBB does not represent any "marginalized and underrepresented" sector; PBB
failed to apply for registration as a party-list group; and PBB failed to establish its track record as an
organization that seeks to uplift the lives of the "marginalized and underrepresented."20

These 13 petitioners (ASIN, Manila Teachers, ALA-EH, 1AAAP, AKIN, AAB, AI, ALONA, ALAM, KALIKASAN,
GUARDJAN, PPP, and PBB) were not able to secure a mandatory injunction from this Court. The
COMELEC, on 7 January 2013 issued Resolution No. 9604,21 and excluded the names of these 13
petitioners in the printing of the official ballot for the 13 May 2013 party-list elections.

Pursuant to paragraph 222 of Resolution No. 9513, the COMELEC En Banc scheduled summary
evidentiary hearings to determine whether the groups and organizations that filed manifestations of
intent to participate in the 13 May 2013 party-list elections have continually complied with the
requirements of R.A. No. 7941 and Ang Bagong Bayani-OFW Labor Party v. COMELEC23 (Ang Bagong
Bayani). The COMELEC disqualified the following groups and organizations from participating in the 13
May 2013 party-list elections:

G.R. No. SPP No. Group Grounds for Denial

Resolution dated 10 October 201224

1 203818-19 12-154

(PLM)

12-177

(PLM) AKO Bicol

Political Party

(AKB) Retained registration and

accreditation as a political

party, but denied participation

in the May 2013 party-list

elections

- Failure to represent any

marginalized and

underrepresented sector;

- The Bicol region already

has representatives in

Congress; and
- The nominees are not

marginalized and

underrepresented.

Omnibus Resolution dated 11 October 201225

2 203766 12-161

(PLM) Atong Paglaum,

Inc. (Atong

Paglaum) Cancelled registration and

accreditation

- The nominees do not belong

to the sectors which the party

represents; and

- The party failed to file its

Statement of Contributions

and Expenditures for the

2010 Elections.

3 203981 12-187

(PLM) Association for

Righteousness

Advocacy on

Leadership

(ARAL) Cancelled registration and

accreditation

- Failure to comply, and for

violation of election laws;

- The nominees do not

represent the sectors which

the party represents; and

- There is doubt that the party

is organized for religious

purposes.

4 204002 12-188

(PLM) Alliance for

Rural Concerns

(ARC) Cancelled registration and

accreditation

- Failure of the nominees to

qualify; and

- Failure of the party to prove

that majority of its members

belong to the sectors it seeks

to represent.

5 204318 12-220

(PLM) United

Movement

Against Drugs

Foundation

(UNIMAD) Cancelled registration and

accreditation

- The sectors of drug

counsellors and lecturers,

veterans and the youth, are

not marginalized and

underrepresented;

- Failure to establish track

record; and

- Failure of the nominees to

qualify as representatives of
the youth and young urban

professionals.

Omnibus Resolution dated 16 October 201226

6 204100 12-196

(PLM) 1-Bro Philippine

Guardians

Brotherhood,

Inc. (1BRO-PGBI) Cancelled registration

- Failure to define the sector

it seeks to represent; and

- The nominees do not belong

to a marginalized and

underrepresented sector.

7 204122 12-223

(PLM) 1 Guardians

Nationalist

Philippines, Inc.

(1GANAP/

GUARDIANS) Cancelled registration

- The party is a military

fraternity;

- The sector of community

volunteer workers is too

broad to allow for meaningful

representation; and

- The nominees do not appear

to belong to the sector of

community volunteer

workers.
8 20426 12-257

(PLM) Blessed

Federation of

Farmers and

Fishermen

International,

Inc. (A

BLESSED

Party-List) Cancelled registration

- Three of the seven

nominees do not belong to

the sector of farmers and

fishermen, the sector sought

to be represented; and

- None of the nominees are

registered voters of Region

XI, the region sought to be

represented.

Resolution dated 16 October 201227

9 203960 12-260

(PLM) 1st

Consumers

Alliance for

Rural Energy,

Inc. (1-CARE) Cancelled registration

- The sector of rural energy

consumers is not

marginalized and

underrepresented;
- The party’s track record is

related to electric

cooperatives and not rural

energy consumers; and

- The nominees do not belong

to the sector of rural energy

consumers.

Resolution dated 16 October 201228

10 203922 12-201

(PLM) Association of

Philippine

Electric

Cooperatives

(APEC) Cancelled registration and

accreditation

- Failure to represent a

marginalized and

underrepresented sector; and

- The nominees do not belong

to the sector that the party

claims to represent.

Resolution dated 23 October 201229

11 204174 12-232

(PLM) Aangat Tayo

Party-List Party

( AT ) Cancelled registration and

accreditation

- The incumbent

representative in Congress
failed to author or sponsor

bills that are beneficial to the

sectors that the party

represents (women, elderly,

youth, urban poor); and

- The nominees do not belong

to the marginalized sectors

that the party seeks to

represent.

Omnibus Resolution dated 24 October 201230

12 203976 12-288

(PLM) Alliance for

Rural and

Agrarian

Reconstruction,

Inc. (ARARO) Cancelled registration and

accreditation

- The interests of the peasant

and urban poor sectors that

the party represents differ;

- The nominees do not belong

to the sectors that the party

seeks to represent;

- Failure to show that three of

the nominees are bona fide

party members; and

- Lack of a Board resolution

to participate in the party-list

elections.
Omnibus Resolution dated 24 October 201231

13 204240 12-279

(PLM) Agri-Agra na

Reporma Para sa

Magsasaka ng

Pilipinas

Movement

(AGRI) Cancelled registration

- The party ceased to exist for

more than a year immediately

after the May 2010 elections;

- The nominees do not belong

to the sector of peasants and

farmers that the party seeks to

represent;

- Only four nominees were

submitted to the COMELEC;

and

- Failure to show meaningful

activities for its constituency.

14 203936 12-248

(PLM) Aksyon

Magsasaka-Partido Tinig ng

Masa (AKMA-PTM) Cancelled registration

- Failure to show that

majority of its members are

marginalized and

underrepresented;

- Failure to prove that four of

its nine nominees actually

belong to the farmers sector;

and

- Failure to show that five of

its nine nominees work on

uplifting the lives of the

members of the sector.

15 204126 12-263

(PLM) Kaagapay ng

Nagkakaisang

Agilang

Pilipinong

Magsasaka

(KAP) Cancelled registration

- The Manifestation of Intent

and Certificate of Nomination

were not signed by an

appropriate officer of the

party;

- Failure to show track record

for the farmers and peasants

sector; and

- Failure to show that

nominees actually belong to

the sector, or that they have

undertaken meaningful

activities for the sector.

16 204364 12-180

(PLM) Adhikain at
Kilusan ng

Ordinaryong

Tao Para sa

Lupa, Pabahay,

Hanapbuhay at

Kaunlaran

(AKO-BAHAY) Cancelled registration

- Failure to show that

nominees actually belong to

the sector, or that they have

undertaken meaningful

activities for the sector.

17 204141 12-229

(PLM) The True

Marcos Loyalist

(for God,

Country and

People)

Association of

the Philippines,

Inc. (BANTAY) Cancelled registration

- Failure to show that

majority of its members are

marginalized and

underrepresented; and

- Failure to prove that two of

its nominees actually belong

to the marginalized and

underrepresented.
18 204408 12-217

(PLM) Pilipino

Association for

Country – Urban

Poor Youth

Advancement

and Welfare

( PA C YAW ) Cancelled registration

- Change of sector (from

urban poor youth to urban

poor) necessitates a new

application;

- Failure to show track record

for the marginalized and

underrepresented;

- Failure to prove that

majority of its members and

officers are from the urban

poor sector; and

- The nominees are not

members of the urban poor

sector.

19 204153 12-277

(PLM) Pasang Masda

Nationwide

Party (PASANG

MASDA) Cancelled registration

- The party represents drivers

and operators, who may have

conflicting interests; and

- Nominees are either

operators or former operators.

20 203958 12-015

(PLM) Kapatiran ng

mga Nakulong

na Walang Sala,

Inc. (KAKUSA) Cancelled registration

- Failure to prove that

na Walang Sala,

Inc. (KAKUSA)

majority of its officers and

members belong to the

marginalized and

underrepresented;

- The incumbent

representative in Congress

failed to author or sponsor

bills that are beneficial to the

sector that the party

represents (persons

imprisoned without proof of

guilt beyond reasonable

doubt);

- Failure to show track record

for the marginalized and

underrepresented; and

- The nominees did not

appear to be marginalized and

underrepresented.

Resolution dated 30 October 201232

21 204428 12-256

(PLM) Ang Galing

Pinoy (AG) Cancelled registration and

accreditation

- Failure to attend the

summary hearing;

- Failure to show track record

for the marginalized and

underrepresented; and

- The nominees did not

appear to be marginalized and

underrepresented.

Resolution dated 7 November 201233

22 204094 12-185

(PLM) Alliance for

Nationalism and

Democracy

(ANAD) Cancelled registration and

accreditation

- Failure to represent an

identifiable marginalized and

underrepresented sector;

- Only three nominees were

submitted to the COMELEC;

- The nominees do not

belong to the marginalized

and underrepresented; and

- Failure to submit its

Statement of Contribution

and Expenditures for the

2007 Elections.

Omnibus Resolution dated 7 November 201234

23 204239 12-060

(PLM) Green Force for

the Environment

Sons and

Daughters of

Mother Earth

(GREENFORCE) Cancelled registration and

accreditation

- The party is an advocacy

group and does not represent

the marginalized and

underrepresented;

- Failure to comply with the

track record requirement; and

- The nominees are not

marginalized citizens.

24 204236 12-254

(PLM) Firm 24-K

Association, Inc.

(FIRM 24-K) Cancelled registration and

accreditation

- The nominees do not

belong to the sector that the

party seeks to represent

(urban poor and peasants of

the National Capital Region);

- Only two of its nominees

reside in the National Capital

Region; and

- Failure to comply with the

track record requirement.

25 204341 12-269

(PLM) Action League

of Indigenous

Masses (ALIM) Cancelled registration and

accreditation

- Failure to establish that its

nominees are members of the

indigenous people in the

Mindanao and Cordilleras

sector that the party seeks to

represent;

- Only two of the party’s

nominees reside in the

Mindanao and Cordilleras;

and

- Three of the nominees do

not appear to belong to the

marginalized.

Resolution dated 7 November 201235

26 204358 12-204

(PLM) Alliance of

Advocates in
Mining

Advancement

for National

Progress

(AAMA)Cancelled registration

- The sector it represents is a

specifically defined group

which may not be allowed

registration under the party-list system; and

- Failure to establish that the

nominees actually belong to

the sector.

Resolution dated 7 November 201236

27 204359 12-272

(PLM) Social

Movement for

Active Reform

and

Transparency

(SMART) Cancelled registration

- The nominees are

disqualified from

representing the sectors that

the party represents;

- Failure to comply with the

track record requirement; and

- There is doubt as to whether

majority of its members are

marginalized and
underrepresented.

Resolution dated 7 November 201237

28 204238 12-173

(PLM) Alliance of

Bicolnon Party

(ABP) Cancelled registration and

accreditation

- Defective registration and

accreditation dating back to

2010;

- Failure to represent any

sector; and

- Failure to establish that the

nominees are employed in the construction industry, the

sector it claims to represent.

Resolution dated 7 November 201238

29 204323 12-210

(PLM) Bayani Party

List (BAYANI) Cancelled registration and

accreditation

- Failure to prove a track

record of trying to uplift the

marginalized and

underrepresented sector of

professionals; and

- One nominee was declared

unqualified to represent the

sector of professionals.

Resolution dated 7 November 201239

30 204321 12-252

(PLM) Ang Agrikultura

Natin Isulong

(AANI) Cancelled registration and

accreditation

- Failure to establish a track

record of enhancing the lives

of the marginalized and

underrepresented farmers

which it claims to represent;

and

- More than a majority of the

party’s nominees do not

belong to the farmers sector.

Resolution dated 7 November 201240

31 204125 12-292

(PLM) Agapay ng

Indigenous

Peoples Rights

Alliance, Inc.

(A-IPRA) Cancelled registration and

accreditation

- Failure to prove that its five

nominees are members of the

indigenous people sector;

- Failure to prove that its five

nominees actively

participated in the

undertakings of the party; and

- Failure to prove that its five nominees are bona fide

members.

Resolution dated 7 November 201241

32 204216 12-202

(PLM) Philippine

Coconut

Producers

Federation, Inc.

(COCOFED) Cancelled registration and

accreditation

- The party is affiliated with

private and government

agencies and is not

marginalized;

- The party is assisted by the

government in various

projects; and

- The nominees are not

members of the marginalized

sector of coconut farmers and

producers.

Resolution dated 7 November 201242

33 204220 12-238

(PLM) Abang Lingkod

Party-List

(ABANG

LINGKOD) Cancelled registration

- Failure to establish a track

record of continuously
representing the peasant

farmers sector;

- Failure to show that its

members actually belong to

the peasant farmers sector;

and

- Failure to show that its

nominees are marginalized

and underrepresented, have

actively participated in

programs for the

advancement of farmers, and

adhere to its advocacies.

Resolution dated 14 November 201243

34 204158 12-158

(PLM) Action

Brotherhood for Active

Dreamers, Inc.

(ABROAD) Cancelled registration and

accreditation - Failure to show that the

party is actually able to

represent all of the sectors it

claims to represent;

- Failure to show a complete

track record of its activities

since its registration; and

- The nominees are not part

of any of the sectors which

the party seeks to represent.

Resolution dated 28 November 201244

35 204374 12-228

(PLM) Binhi-Partido ng

mga Magsasaka

Para sa mga

Magsasaka

(BINHI) Cancelled registration and

accreditation

- The party receives

assistance from the

government through the

Department of Agriculture;

and

- Failure to prove that the

group is marginalized and

underrepresented.

Resolution dated 28 November 201245

36 204356 12-136

(PLM) Butil Farmers

Party (BUTIL) Cancelled registration and

accreditation

- Failure to establish that the

agriculture and cooperative

sectors are marginalized and

underrepresented; and

- The party’s nominees

neither appear to belong to

the sectors they seek to

represent, nor to have

actively participated in the

undertakings of the party.

Resolution dated 3 December 201246

37 204486 12-194

(PLM) 1st

Kabalikat ng

Bayan

Ginhawang

Sangkatauhan

(1st

KABAGIS) Cancelled registration and

accreditation

- Declaration of untruthful

statements;

- Failure to exist for at least

one year; and

- None of its nominees

belong to the labor,

fisherfolk, and urban poor

indigenous cultural

communities sectors which it

seeks to represent.

Resolution dated 4 December 201247

38 204410 12-198

(PLM) 1-United

Transport

Koalisyon (1-UTAK) Cancelled accreditation

- The party represents drivers

and operators, who may have

conflicting interests; and

- The party’s nominees do not

belong to any marginalized

and underrepresented sector.

Resolution dated 4 December 201248

39 204421,

204425 12-157

(PLM),

12-191

(PLM) Coalition of

Senior Citizens

in the

Philippines, Inc.

(SENIOR

CITIZENS) Cancelled registration

- The party violated election

laws because its nominees

had a term-sharing

agreement.

These 39 petitioners (AKB, Atong Paglaum, ARAL, ARC, UNIMAD, 1BRO-PGBI, 1GANAP/GUARDIANS, A
BLESSED Party-List, 1-CARE, APEC, AT, ARARO, AGRI, AKMA-PTM, KAP, AKO-BAHAY, BANTAY, PACYAW,
PASANG MASDA, KAKUSA, AG, ANAD, GREENFORCE, FIRM 24-K, ALIM, AAMA, SMART, ABP, BAYANI,
AANI, A-IPRA, COCOFED, ABANG LINGKOD, ABROAD, BINHI, BUTIL, 1st KABAGIS, 1-UTAK, SENIOR
CITIZENS) were able to secure a mandatory injunction from this Court, directing the COMELEC to include
the names of these 39 petitioners in the printing of the official ballot for the 13 May 2013 party-list
elections.

Petitioners prayed for the issuance of a temporary restraining order and/or writ of preliminary
injunction. This Court issued Status Quo Ante Orders in all petitions. This Decision governs only the 54
consolidated petitions that were granted Status Quo Ante Orders, namely:

G.R. No. SPP No. Group

Resolution dated 13 November 2012

203818-19 12-154

(PLM)

12-177

(PLM) AKO Bicol Political Party (AKB)

203981 12-187

(PLM) Association for Righteousness Advocacy on

Leadership (ARAL)

204002 12-188

(PLM) Alliance for Rural Concerns (ARC)

203922 12-201

(PLM) Association of Philippine Electric Cooperatives

(APEC)

203960 12-260

(PLM) 1st

Consumers Alliance for Rural Energy, Inc.

(1-CARE)

203936 12-248

(PLM) Aksyon Magsasaka-Partido Tinig ng Masa

(AKMA-PTM)

203958 12-015

(PLM) Kapatiran ng mga Nakulong na Walang Sala,

Inc. (KAKUSA)

203976 12-288

(PLM) Alliance for Rural and Agrarian Reconstruction,

Inc. (ARARO)

Resolution dated 20 November 2012

204094 12-185

(PLM) Alliance for Nationalism and Democracy

(ANAD)
204125 12-292

(PLM) Agapay ng Indigenous Peoples Rights Alliance,

Inc. (A-IPRA)

204100 12-196

(PLM) 1-Bro Philippine Guardians Brotherhood, Inc.

(1BRO-PGBI)

Resolution dated 27 November 2012

204141 12-229

(PLM) The True Marcos Loyalist (for God, Country

and People) Association of the Philippines, Inc.

(BANTAY)

204240 12-279

(PLM) Agri-Agra na Reporma Para sa Magsasaka ng

Pilipinas Movement (AGRI)

204216 12-202

(PLM) Philippine Coconut Producers Federation, Inc.

(COCOFED)

204158 12-158

(PLM) Action Brotherhood for Active Dreamer, Inc.

(ABROAD)

Resolutions dated 4 December 2012

204122 12-223

(PLM) 1 Guardians Nationalist Philippines, Inc.

(1GANAP/GUARDIANS)

203766 12-161

(PLM) Atong Paglaum, Inc. (Atong Paglaum)

204318 12-220

(PLM) United Movement Against Drugs Foundation

(UNIMAD)
204263 12-257

(PLM) Blessed Federation of Farmers and Fishermen

International, Inc. (A BLESSED Party-List)

204174 12-232

(PLM) Aangat Tayo Party-List Party (AT)

204126 12-263

(PLM) Kaagapay ng Nagkakaisang Agilang Pilipinong

Magsasaka (KAP)

204364 12-180

(PLM) Adhikain at Kilusan ng Ordinaryong Tao Para sa

Lupa, Pabahay, Hanapbuhay at Kaunlaran

(AKO-BAHAY)

204139 12-127 (PL) Alab ng Mamamahayag (ALAM)

204220 12-238

(PLM) Abang Lingkod Party-List (ABANG

LINGKOD)

204236 12-254

(PLM) Firm 24-K Association, Inc. (FIRM 24-K)

204238 12-173

(PLM) Alliance of Bicolnon Party (ABP)

204239 12-060

(PLM) Green Force for the Environment Sons and

Daughters of Mother Earth (GREENFORCE)

204321 12-252

(PLM) Ang Agrikultura Natin Isulong (AANI)

204323 12-210

(PLM) Bayani Party List (BAYANI)

204341 12-269

(PLM) Action League of Indigenous Masses (ALIM)

204358 12-204

(PLM) Alliance of Advocates in Mining Advancement

for National Progress (AAMA)

204359 12-272

(PLM) Social Movement for Active Reform and

Transparency (SMART)

204356 12-136

(PLM) Butil Farmers Party (BUTIL)

Resolution dated 11 December 2012

204402 12-061 (PL) Kalikasan Party-List (KALIKASAN)

204394 12-145 (PL) Association of Guard, Utility Helper, Aider,

Rider, Driver/Domestic Helper, Janitor, Agent

and Nanny of the Philippines, Inc.

(GUARDJAN)

204408 12-217

(PLM) Pilipino Association for Country – Urban Poor

Youth Advancement and Welfare (PACYAW)

204428 12-256

(PLM) Ang Galing Pinoy (AG)

204490 12-073

(PLM) Pilipinas Para sa Pinoy (PPP)

204379 12-099

(PLM) Alagad ng Sining (ASIN)

204367 12-104 (PL) Akbay Kalusugan (AKIN)

204426 12-011

(PLM) Association of Local Athletics Entrepreneurs

and Hobbyists, Inc. (ALA-EH)

204455 12-041

(PLM) Manila Teachers Savings and Loan Association,

Inc. (Manila Teachers)

204374 12-228

(PLM) Binhi-Partido ng mga Magsasaka Para sa mga

Magsasaka (BINHI)

204370 12-011 (PP) Ako An Bisaya (AAB)

204435 12-057

(PLM) 1 Alliance Advocating Autonomy Party

(1AAAP)

204486 12-194

(PLM) 1st Kabalikat ng Bayan Ginhawang

Sangkatauhan (1st KABAGIS)

204410 12-198

(PLM) 1-United Transport Koalisyon (1-UTAK)

204421,

204425 12-157

(PLM)

12-191

(PLM) Coalition of Senior Citizens in the Philippines,

Inc. (SENIOR CITIZENS)

204436 12-009 (PP),

12-165

(PLM) Abyan Ilonggo Party (AI)

204485 12-175 (PL) Alliance of Organizations, Networks and

Associations of the Philippines, Inc. (ALONA)

204484 11-002 Partido ng Bayan ng Bida (PBB)

Resolution dated 11 December 2012

204153 12-277

(PLM) Pasang Masda Nationwide Party (PASANG

MASDA)
The Issues

We rule upon two issues: first, whether the COMELEC committed grave abuse of discretion amounting to
lack or excess of jurisdiction in disqualifying petitioners from participating in the 13 May 2013 party-list
elections, either by denial of their new petitions for registration under the party-list system, or by
cancellation of their existing registration and accreditation as party-list organizations; and second,
whether the criteria for participating in the party-list system laid down in Ang Bagong Bayani and
Barangay Association for National Advancement and Transparency v. Commission on Elections49
(BANAT) should be applied by the COMELEC in the coming 13 May 2013 party-list elections.

The Court’s Ruling

We hold that the COMELEC did not commit grave abuse of discretion in following prevailing decisions of
this Court in disqualifying petitioners from participating in the coming 13 May 2013 party-list elections.
However, since the Court adopts in this Decision new parameters in the qualification of national,
regional, and sectoral parties under the party-list system, thereby abandoning the rulings in the
decisions applied by the COMELEC in disqualifying petitioners, we remand to the COMELEC all the
present petitions for the COMELEC to determine who are qualified to register under the party-list
system, and to participate in the coming 13 May 2013 party-list elections, under the new parameters
prescribed in this Decision.

The Party-List System

The 1987 Constitution provides the basis for the party-list system of representation. Simply put, the
party-list system is intended to democratize political power by giving political parties that cannot win in
legislative district elections a chance to win seats in the House of Representatives.50 The voter elects
two representatives in the House of Representatives: one for his or her legislative district, and another
for his or her party-list group or organization of choice. The 1987 Constitution provides:

Section 5, Article VI

(1) The House of Representatives shall be composed of not more than two hundred and fifty members,
unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the
provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall
be elected through a party-list system of registered national, regional, and sectoral parties or
organizations.
(2) The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party list. For three consecutive terms after the ratification of
this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided
by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities,
women, youth, and such other sectors as may be provided by law, except the religious sector.

Sections 7 and 8, Article IX-C

Sec. 7. No votes cast in favor of a political party, organization, or coalition shall be valid, except for those
registered under the party-list system as provided in this Constitution.

Sec. 8. Political parties, or organizations or coalitions registered under the party-list system, shall not be
represented in the voters’ registration boards, boards of election inspectors, boards of canvassers, or
other similar bodies. However, they shall be entitled to appoint poll watchers in accordance with law.

Commissioner Christian S. Monsod, the main sponsor of the party-list system, stressed that "the party-
list system is not synonymous with that of the sectoral representation."51 The constitutional provisions
on the party-list system should be read in light of the following discussion among its framers:

MR. MONSOD: x x x.

I would like to make a distinction from the beginning that the proposal for the party list system is not
synonymous with that of the sectoral representation. Precisely, the party list system seeks to avoid the
dilemma of choice of sectors and who constitute the members of the sectors. In making the proposal on
the party list system, we were made aware of the problems precisely cited by Commissioner Bacani of
which sectors will have reserved seats. In effect, a sectoral representation in the Assembly would mean
that certain sectors would have reserved seats; that they will choose among themselves who would sit in
those reserved seats. And then, we have the problem of which sector because as we will notice in
Proclamation No. 9, the sectors cited were the farmers, fishermen, workers, students, professionals,
business, military, academic, ethnic and other similar groups. So these are the nine sectors that were
identified here as "sectoral representatives" to be represented in this Commission. The problem we had
in trying to approach sectoral representation in the Assembly was whether to stop at these nine sectors
or include other sectors. And we went through the exercise in a caucus of which sector should be
included which went up to 14 sectors. And as we all know, the longer we make our enumeration, the
more limiting the law become because when we make an enumeration we exclude those who are not in
the enumeration. Second, we had the problem of who comprise the farmers. Let us just say the farmers
and the laborers. These days, there are many citizens who are called "hyphenated citizens." A doctor
may be a farmer; a lawyer may also be a farmer. And so, it is up to the discretion of the person to say "I
am a farmer" so he would be included in that sector.

The third problem is that when we go into a reserved seat system of sectoral representation in the
Assembly, we are, in effect, giving some people two votes and other people one vote. We sought to
avoid these problems by presenting a party list system. Under the party list system, there are no
reserved seats for sectors. Let us say, laborers and farmers can form a sectoral party or a sectoral
organization that will then register and present candidates of their party. How do the mechanics go?
Essentially, under the party list system, every voter has two votes, so there is no discrimination. First, he
will vote for the representative of his legislative district. That is one vote. In that same ballot, he will be
asked: What party or organization or coalition do you wish to be represented in the Assembly? And here
will be attached a list of the parties, organizations or coalitions that have been registered with the
COMELEC and are entitled to be put in that list. This can be a regional party, a sectoral party, a national
party, UNIDO, Magsasaka or a regional party in Mindanao. One need not be a farmer to say that he
wants the farmers' party to be represented in the Assembly. Any citizen can vote for any party. At the
end of the day, the COMELEC will then tabulate the votes that had been garnered by each party or each
organization — one does not have to be a political party and register in order to participate as a party —
and count the votes and from there derive the percentage of the votes that had been cast in favor of a
party, organization or coalition.

When such parties register with the COMELEC, we are assuming that 50 of the 250 seats will be for the
party list system. So, we have a limit of 30 percent of 50. That means that the maximum that any party
can get out of these 50 seats is 15. When the parties register they then submit a list of 15 names. They
have to submit these names because these nominees have to meet the minimum qualifications of a
Member of the National Assembly. At the end of the day, when the votes are tabulated, one gets the
percentages. Let us say, UNIDO gets 10 percent or 15 percent of the votes; KMU gets 5 percent; a
women’s party gets 2 1/2 percent and anybody who has at least 2 1/2 percent of the vote qualifies and
the 50 seats are apportioned among all of these parties who get at least 2 1/2 percent of the vote.

What does that mean? It means that any group or party who has a constituency of, say, 500,000
nationwide gets a seat in the National Assembly. What is the justification for that? When we allocate
legislative districts, we are saying that any district that has 200,000 votes gets a seat. There is no reason
why a group that has a national constituency, even if it is a sectoral or special interest group, should not
have a voice in the National Assembly. It also means that, let us say, there are three or four labor groups,
they all register as a party or as a group. If each of them gets only one percent or five of them get one
percent, they are not entitled to any representative. So, they will begin to think that if they really have a
common interest, they should band together, form a coalition and get five percent of the vote and,
therefore, have two seats in the Assembly. Those are the dynamics of a party list system.
We feel that this approach gets around the mechanics of sectoral representation while at the same time
making sure that those who really have a national constituency or sectoral constituency will get a chance
to have a seat in the National Assembly. These sectors or these groups may not have the constituency to
win a seat on a legislative district basis. They may not be able to win a seat on a district basis but surely,
they will have votes on a nationwide basis.

The purpose of this is to open the system. In the past elections, we found out that there were certain
groups or parties that, if we count their votes nationwide; have about 1,000,000 or 1,500,000 votes. But
they were always third place or fourth place in each of the districts. So, they have no voice in the
Assembly. But this way, they would have five or six representatives in the Assembly even if they would
not win individually in legislative districts. So, that is essentially the mechanics, the purpose and
objectives of the party list system.

BISHOP BACANI: Madam President, am I right in interpreting that when we speak now of party list
system though we refer to sectors, we would be referring to sectoral party list rather than sectors and
party list?

MR. MONSOD: As a matter of fact, if this body accepts the party list system, we do not even have to
mention sectors because the sectors would be included in the party list system. They can be sectoral
parties within the party list system.

xxxx

MR. MONSOD. Madam President, I just want to say that we suggested or proposed the party list system
because we wanted to open up the political system to a pluralistic society through a multiparty system. x
x x We are for opening up the system, and we would like very much for the sectors to be there. That is
why one of the ways to do that is to put a ceiling on the number of representatives from any single party
that can sit within the 50 allocated under the party list system. x x x.

xxx

MR. MONSOD. Madam President, the candidacy for the 198 seats is not limited to political parties. My
question is this: Are we going to classify for example Christian Democrats and Social Democrats as
political parties? Can they run under the party list concept or must they be under the district legislation
side of it only?
MR. VILLACORTA. In reply to that query, I think these parties that the Commissioner mentioned can field
candidates for the Senate as well as for the House of Representatives. Likewise, they can also field
sectoral candidates for the 20 percent or 30 percent, whichever is adopted, of the seats that we are
allocating under the party list system.

MR. MONSOD. In other words, the Christian Democrats can field district candidates and can also
participate in the party list system?

MR. VILLACORTA. Why not? When they come to the party list system, they will be fielding only sectoral
candidates.

MR. MONSOD. May I be clarified on that? Can UNIDO participate in the party list system?

MR. VILLACORTA. Yes, why not? For as long as they field candidates who come from the different
marginalized sectors that we shall designate in this Constitution.

MR. MONSOD. Suppose Senator Tañada wants to run under BAYAN group and says that he represents
the farmers, would he qualify?

MR. VILLACORTA. No, Senator Tañada would not qualify.

MR. MONSOD. But UNIDO can field candidates under the party list system and say Juan dela Cruz is a
farmer. Who would pass on whether he is a farmer or not?

MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin ito. Political parties, particularly
minority political parties, are not prohibited to participate in the party list election if they can prove that
they are also organized along sectoral lines.

MR. MONSOD. What the Commissioner is saying is that all political parties can participate because it is
precisely the contention of political parties that they represent the broad base of citizens and that all
sectors are represented in them. Would the Commissioner agree?
MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang political party, it will
dominate the party list at mawawalang saysay din yung sector. Lalamunin mismo ng political parties ang
party list system. Gusto ko lamang bigyan ng diin ang "reserve." Hindi ito reserve seat sa marginalized
sectors. Kung titingnan natin itong 198 seats, reserved din ito sa political parties.

MR. MONSOD. Hindi po reserved iyon kasi anybody can run there. But my question to Commissioner
Villacorta and probably also to Commissioner Tadeo is that under this system, would UNIDO be banned
from running under the party list system?

MR. VILLACORTA. No, as I said, UNIDO may field sectoral candidates. On that condition alone, UNIDO
may be allowed to register for the party list system.

MR. MONSOD. May I inquire from Commissioner Tadeo if he shares that answer?

MR. TADEO. The same.

MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral lines.

MR. MONSOD: Sino po ang magsasabi kung iyong kandidato ng UNIDO ay hindi talagang labor leader or
isang laborer? Halimbawa, abogado ito.

MR. TADEO: Iyong mechanics.

MR. MONSOD: Hindi po mechanics iyon because we are trying to solve an inherent problem of sectoral
representation. My question is: Suppose UNIDO fields a labor leader, would he qualify?

MR. TADEO: The COMELEC may look into the truth of whether or not a political party is really organized
along a specific sectoral line. If such is verified or confirmed, the political party may submit a list of
individuals who are actually members of such sectors. The lists are to be published to give individuals or
organizations belonging to such sector the chance to present evidence contradicting claims of
membership in the said sector or to question the claims of the existence of such sectoral organizations or
parties. This proceeding shall be conducted by the COMELEC and shall be summary in character. In other
words, COMELEC decisions on this matter are final and unappealable.52 (Emphasis supplied)
Indisputably, the framers of the 1987 Constitution intended the party-list system to include not only
sectoral parties but also non-sectoral parties. The framers intended the sectoral parties to constitute a
part, but not the entirety, of the party-list system. As explained by Commissioner Wilfredo Villacorta,
political parties can participate in the party-list system "For as long as they field candidates who come
from the different marginalized sectors that we shall designate in this Constitution."53

In fact, the framers voted down, 19-22, a proposal to reserve permanent seats to sectoral parties in the
House of Representatives, or alternatively, to reserve the party-list system exclusively to sectoral parties.
As clearly explained by Justice Jose C. Vitug in his Dissenting Opinion in Ang Bagong Bayani:

The draft provisions on what was to become Article VI, Section 5, subsection (2), of the 1987
Constitution took off from two staunch positions — the first headed by Commissioner Villacorta,
advocating that of the 20 per centum of the total seats in Congress to be allocated to party-list
representatives half were to be reserved to appointees from the marginalized and underrepresented
sectors. The proposal was opposed by some Commissioners. Mr. Monsod expressed the difficulty in
delimiting the sectors that needed representation. He was of the view that reserving seats for the
marginalized and underrepresented sectors would stunt their development into full-pledged parties
equipped with electoral machinery potent enough to further the sectoral interests to be represented.
The Villacorta group, on the other hand, was apprehensive that pitting the unorganized and less-
moneyed sectoral groups in an electoral contest would be like placing babes in the lion's den, so to
speak, with the bigger and more established political parties ultimately gobbling them up. R.A. 7941
recognized this concern when it banned the first five major political parties on the basis of party
representation in the House of Representatives from participating in the party-list system for the first
party-list elections held in 1998 (and to be automatically lifted starting with the 2001 elections). The
advocates for permanent seats for sectoral representatives made an effort towards a compromise —
that the party-list system be open only to underrepresented and marginalized sectors. This proposal was
further whittled down by allocating only half of the seats under the party-list system to candidates from
the sectors which would garner the required number of votes. The majority was unyielding. Voting 19-
22, the proposal for permanent seats, and in the alternative the reservation of the party-list system to
the sectoral groups, was voted down. The only concession the Villacorta group was able to muster was
an assurance of reserved seats for selected sectors for three consecutive terms after the enactment of
the 1987 Constitution, by which time they would be expected to gather and solidify their electoral base
and brace themselves in the multi-party electoral contest with the more veteran political groups.54
(Emphasis supplied)

Thus, in the end, the proposal to give permanent reserved seats to certain sectors was outvoted.
Instead, the reservation of seats to sectoral representatives was only allowed for the first three
consecutive terms.55 There can be no doubt whatsoever that the framers of the 1987 Constitution
expressly rejected the proposal to make the party-list system exclusively for sectoral parties only, and
that they clearly intended the party-list system to include both sectoral and non-sectoral parties.
The common denominator between sectoral and non-sectoral parties is that they cannot expect to win
in legislative district elections but they can garner, in nationwide elections, at least the same number of
votes that winning candidates can garner in legislative district elections. The party-list system will be the
entry point to membership in the House of Representatives for both these non-traditional parties that
could not compete in legislative district elections.

The indisputable intent of the framers of the 1987 Constitution to include in the party-list system both
sectoral and non-sectoral parties is clearly written in Section 5(1), Article VI of the Constitution, which
states:

Section 5. (1) The House of Representative shall be composed of not more that two hundred and fifty
members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their
respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided
by law, shall be elected through a party-list system of registered national, regional, and sectoral parties
or organizations. (Emphasis supplied)

Section 5(1), Article VI of the Constitution is crystal-clear that there shall be "a party-list system of
registered national, regional, and sectoral parties or organizations." The commas after the words
"national," and "regional," separate national and regional parties from sectoral parties. Had the framers
of the 1987 Constitution intended national and regional parties to be at the same time sectoral, they
would have stated "national and regional sectoral parties." They did not, precisely because it was never
their intention to make the party-list system exclusively sectoral.

What the framers intended, and what they expressly wrote in Section 5(1), could not be any clearer: the
party-list system is composed of three different groups, and the sectoral parties belong to only one of
the three groups. The text of Section 5(1) leaves no room for any doubt that national and regional
parties are separate from sectoral parties.

Thus, the party-list system is composed of three different groups: (1) national parties or organizations;
(2) regional parties or organizations; and (3) sectoral parties or organizations. National and regional
parties or organizations are different from sectoral parties or organizations. National and regional parties
or organizations need not be organized along sectoral lines and need not represent any particular sector.

Moreover, Section 5(2), Article VI of the 1987 Constitution mandates that, during the first three
consecutive terms of Congress after the ratification of the 1987 Constitution, "one-half of the seats
allocated to party-list representatives shall be filled, as provided by law, by selection or election from the
labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as
may be provided by law, except the religious sector." This provision clearly shows again that the party-list
system is not exclusively for sectoral parties for two obvious reasons.

First, the other one-half of the seats allocated to party-list representatives would naturally be open to
non-sectoral party-list representatives, clearly negating the idea that the party-list system is exclusively
for sectoral parties representing the "marginalized and underrepresented." Second, the reservation of
one-half of the party-list seats to sectoral parties applies only for the first "three consecutive terms after
the ratification of this Constitution," clearly making the party-list system fully open after the end of the
first three congressional terms. This means that, after this period, there will be no seats reserved for any
class or type of party that qualifies under the three groups constituting the party-list system.

Hence, the clear intent, express wording, and party-list structure ordained in Section 5(1) and (2), Article
VI of the 1987 Constitution cannot be disputed: the party-list system is not for sectoral parties only, but
also for non-sectoral parties.

Republic Act No. 7941 or the Party-List System Act, which is the law that implements the party-list
system prescribed in the Constitution, provides:

Section 3. Definition of Terms. (a) The party-list system is a mechanism of proportional representation in
the election of representatives to the House of Representatives from national, regional and sectoral
parties or organizations or coalitions thereof registered with the Commission on Elections (COMELEC).
Component parties or organizations of a coalition may participate independently provided the coalition
of which they form part does not participate in the party-list system.

(b) A party means either a political party or a sectoral party or a coalition of parties.

(c) A political party refers to an organized group of citizens advocating an ideology or platform, principles
and policies for the general conduct of government and which, as the most immediate means of
securing their adoption, regularly nominates and supports certain of its leaders and members as
candidates for public office.

It is a national party when its constituency is spread over the geographical territory of at least a majority
of the regions. It is a regional party when its constituency is spread over the geographical territory of at
least a majority of the cities and provinces comprising the region.
(d) A sectoral party refers to an organized group of citizens belonging to any of the sectors enumerated
in Section 5 hereof whose principal advocacy pertains to the special interest and concerns of their sector.

(e) A sectoral organization refers to a group of citizens or a coalition of groups of citizens who share
similar physical attributes or characteristics, employment, interests or concerns.

(f) A coalition refers to an aggrupation of duly registered national, regional, sectoral parties or
organizations for political and/or election purposes. (Emphasis supplied)

Section 3(a) of R.A. No. 7941 defines a "party" as "either a political party or a sectoral party or a coalition
of parties." Clearly, a political party is different from a sectoral party. Section 3(c) of R.A. No. 7941 further
provides that a "political party refers to an organized group of citizens advocating an ideology or
platform, principles and policies for the general conduct of government." On the other hand, Section
3(d) of R.A. No. 7941 provides that a "sectoral party refers to an organized group of citizens belonging to
any of the sectors enumerated in Section 5 hereof whose principal advocacy pertains to the special
interest and concerns of their sector." R.A. No. 7941 provides different definitions for a political and a
sectoral party. Obviously, they are separate and distinct from each other.

R.A. No. 7941 does not require national and regional parties or organizations to represent the
"marginalized and underrepresented" sectors. To require all national and regional parties under the
party-list system to represent the "marginalized and underrepresented" is to deprive and exclude, by
judicial fiat, ideology-based and cause-oriented parties from the party-list system. How will these
ideology-based and cause-oriented parties, who cannot win in legislative district elections, participate in
the electoral process if they are excluded from the party-list system? To exclude them from the party-list
system is to prevent them from joining the parliamentary struggle, leaving as their only option the
armed struggle. To exclude them from the party-list system is, apart from being obviously senseless,
patently contrary to the clear intent and express wording of the 1987 Constitution and R.A. No. 7941.

Under the party-list system, an ideology-based or cause-oriented political party is clearly different from a
sectoral party. A political party need not be organized as a sectoral party and need not represent any
particular sector. There is no requirement in R.A. No. 7941 that a national or regional political party must
represent a "marginalized and underrepresented" sector. It is sufficient that the political party consists of
citizens who advocate the same ideology or platform, or the same governance principles and policies,
regardless of their economic status as citizens.
Section 5 of R.A. No. 7941 states that "the sectors shall include labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and
professionals."56 The sectors mentioned in Section 5 are not all necessarily "marginalized and
underrepresented." For sure, "professionals" are not by definition "marginalized and underrepresented,"
not even the elderly, women, and the youth. However, professionals, the elderly, women, and the youth
may "lack well-defined political constituencies," and can thus organize themselves into sectoral parties in
advocacy of the special interests and concerns of their respective sectors.

Section 6 of R.A. No. 7941 provides another compelling reason for holding that the law does not require
national or regional parties, as well as certain sectoral parties in Section 5 of R.A. No. 7941, to represent
the "marginalized and underrepresented." Section 6 provides the grounds for the COMELEC to refuse or
cancel the registration of parties or organizations after due notice and hearing.

Section 6. Refusal and/or Cancellation of Registration. — The COMELEC may, motu proprio or upon
verified complaint of any interested party, refuse or cancel, after due notice and hearing, the registration
of any national, regional or sectoral party, organization or coalition on any of the following grounds:

(1) It is a religious sect or denomination, organization or association organized for religious purposes;

(2) It advocates violence or unlawful means to seek its goal;

(3) It is a foreign party or organization;

(4) It is receiving support from any foreign government, foreign political party, foundation, organization,
whether directly or through any of its officers or members or indirectly through third parties for partisan
election purposes;

(5) It violates or fails to comply with laws, rules or regulations relating to elections;

(6) It declares untruthful statements in its petition;

(7) It has ceased to exist for at least one (1) year; or

(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum
(2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency
in which it has registered.

None of the 8 grounds to refuse or cancel registration refers to non-representation of the "marginalized
and underrepresented."

The phrase "marginalized and underrepresented" appears only once in R.A. No. 7941, in Section 2 on
Declaration of Policy.57 Section 2 seeks "to promote proportional representation in the election of
representatives to the House of Representatives through the party-list system," which will enable
Filipinos belonging to the "marginalized and underrepresented sectors, organizations and parties, and
who lack well-defined political constituencies," to become members of the House of Representatives.
While the policy declaration in Section 2 of R.A. No. 7941 broadly refers to "marginalized and
underrepresented sectors, organizations and parties," the specific implementing provisions of R.A. No.
7941 do not define or require that the sectors, organizations or parties must be "marginalized and
underrepresented." On the contrary, to even interpret that all the sectors mentioned in Section 5 are
"marginalized and underrepresented" would lead to absurdities.

How then should we harmonize the broad policy declaration in Section 2 of R.A. No. 7941 with its
specific implementing provisions, bearing in mind the applicable provisions of the 1987 Constitution on
the matter?

The phrase "marginalized and underrepresented" should refer only to the sectors in Section 5 that are,
by their nature, economically "marginalized and underrepresented." These sectors are: labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, overseas workers, and
other similar sectors. For these sectors, a majority of the members of the sectoral party must belong to
the "marginalized and underrepresented." The nominees of the sectoral party either must belong to the
sector, or must have a track record of advocacy for the sector represented. Belonging to the
"marginalized and underrepresented" sector does not mean one must "wallow in poverty, destitution or
infirmity." It is sufficient that one, or his or her sector, is below the middle class. More specifically, the
economically "marginalized and underrepresented" are those who fall in the low income group as
classified by the National Statistical Coordination Board.58

The recognition that national and regional parties, as well as sectoral parties of professionals, the elderly,
women and the youth, need not be "marginalized and underrepresented" will allow small ideology-
based and cause-oriented parties who lack "well-defined political constituencies" a chance to win seats
in the House of Representatives. On the other hand, limiting to the "marginalized and
underrepresented" the sectoral parties for labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, handicapped, veterans, overseas workers, and other sectors that by their nature are
economically at the margins of society, will give the "marginalized and underrepresented" an
opportunity to likewise win seats in the House of Representatives.

This interpretation will harmonize the 1987 Constitution and R.A. No. 7941 and will give rise to a multi-
party system where those "marginalized and underrepresented," both in economic and ideological
status, will have the opportunity to send their own members to the House of Representatives. This
interpretation will also make the party-list system honest and transparent, eliminating the need for
relatively well-off party-list representatives to masquerade as "wallowing in poverty, destitution and
infirmity," even as they attend sessions in Congress riding in SUVs.

The major political parties are those that field candidates in the legislative district elections. Major
political parties cannot participate in the party-list elections since they neither lack "well-defined political
constituencies" nor represent "marginalized and underrepresented" sectors. Thus, the national or
regional parties under the party-list system are necessarily those that do not belong to major political
parties. This automatically reserves the national and regional parties under the party-list system to those
who "lack well-defined political constituencies," giving them the opportunity to have members in the
House of Representatives.

To recall, Ang Bagong Bayani expressly declared, in its second guideline for the accreditation of parties
under the party-list system, that "while even major political parties are expressly allowed by RA 7941
and the Constitution to participate in the party-list system, they must comply with the declared statutory
policy of enabling ‘Filipino citizens belonging to marginalized and underrepresented sectors xxx to be
elected to the House of Representatives.’ "However, the requirement in Ang Bagong Bayani, in its second
guideline, that "the political party xxx must represent the marginalized and underrepresented,"
automatically disqualified major political parties from participating in the party-list system. This inherent
inconsistency in Ang Bagong Bayani has been compounded by the COMELEC’s refusal to register sectoral
wings officially organized by major political parties. BANAT merely formalized the prevailing practice
when it expressly prohibited major political parties from participating in the party-list system, even
through their sectoral wings.

Section 11 of R.A. No. 7941 expressly prohibited the "first five (5) major political parties on the basis of
party representation in the House of Representatives at the start of the Tenth Congress" from
participating in the May 1988 party-list elections.59 Thus, major political parties can participate in
subsequent party-list elections since the prohibition is expressly limited only to the 1988 party-list
elections. However, major political parties should participate in party-list elections only through their
sectoral wings. The participation of major political parties through their sectoral wings, a majority of
whose members are "marginalized and underrepresented" or lacking in "well-defined political
constituencies," will facilitate the entry of the "marginalized and underrepresented" and those who "lack
well-defined political constituencies" as members of the House of Representatives.
The 1987 Constitution and R.A. No. 7941 allow major political parties to participate in party-list elections
so as to encourage them to work assiduously in extending their constituencies to the "marginalized and
underrepresented" and to those who "lack well-defined political constituencies." The participation of
major political parties in party-list elections must be geared towards the entry, as members of the House
of Representatives, of the "marginalized and underrepresented" and those who "lack well-defined
political constituencies," giving them a voice in law-making. Thus,to participate in party-list elections, a
major political party that fields candidates in the legislative district elections must organize a sectoral
wing, like a labor, peasant, fisherfolk, urban poor, professional, women or youth wing, that can register
under the party-list system.

Such sectoral wing of a major political party must have its own constitution, by-laws, platform or
program of government, officers and members, a majority of whom must belong to the sector
represented. The sectoral wing is in itself an independent sectoral party, and is linked to a major political
party through a coalition. This linkage is allowed by Section 3 of R.A. No. 7941, which provides that
"component parties or organizations of a coalition may participate independently (in party-list elections)
provided the coalition of which they form part does not participate in the party-list system."

Section 9 of R.A. No. 7941 prescribes the qualifications of party-list nominees. This provision prescribes a
special qualification only for the nominee from the youth sector.

Section 9. Qualifications of Party-List Nominees. No person shall be nominated as party-list

representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the
Philippines for a period of not less than one (1) year immediately preceding the day of the election, able
to read and write, a bona fide member of the party or organization which he seeks to represent for at
least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on
the day of the election.

In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty
(30) years of age on the day of the election.

Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to
continue in office until the expiration of his term.1âwphi1

A party-list nominee must be a bona fide member of the party or organization which he or she seeks to
represent. In the case of sectoral parties, to be a bona fide party-list nominee one must either belong to
the sector represented, or have a track record of advocacy for such sector.
In disqualifying petitioners, the COMELEC used the criteria prescribed in Ang Bagong Bayani and BANAT.
Ang Bagong Bayani laid down the guidelines for qualifying those who desire to participate in the party-
list system:

First, the political party, sector, organization or coalition must represent the marginalized and
underrepresented groups identified in Section 5 of RA 7941. x x x

Second, while even major political parties are expressly allowed by RA 7941 and the Constitution to
participate in the party-list system, they must comply with the declared statutory policy of enabling
"Filipino citizens belonging to marginalized and underrepresented sectors x x x to be elected to the
House of Representatives." x x x.

xxxx

Third, x x x the religious sector may not be represented in the party-list system. x x x.

xxxx

Fourth, a party or an organization must not be disqualified under Section 6 of RA 7941, which
enumerates the grounds for disqualification as follows:

"(1) It is a religious sect or denomination, organization or association, organized for religious purposes;

(2) It advocates violence or unlawful means to seek its goal;

(3) It is a foreign party or organization;

(4) It is receiving support from any foreign government, foreign political party, foundation, organization,
whether directly or through any of its officers or members or indirectly through third parties for partisan
election purposes;
(5) It violates or fails to comply with laws, rules or regulations relating to elections;

(6) It declares untruthful statements in its petition;

(7) It has ceased to exist for at least one (1) year; or

(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum
(2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency
in which it has registered."

Fifth, the party or organization must not be an adjunct of, or a project organized or an entity funded or
assisted by, the government. x x x.

xxxx

Sixth, the party must not only comply with the requirements of the law; its nominees must likewise do
so. Section 9 of RA 7941 reads as follows:

"SEC 9. Qualifications of Party-List Nominees. - No person shall be nominated as party-list representative

unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a
period of not less than one (1)year immediately preceding the day of the election, able to read and
write, a bona fide member of the party or organization which he seeks to represent for at least ninety
(90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the
election.

In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty
(30) years of age on the day of the election. Any youth sectoral representative who attains the age of
thirty (30) during his term shall be allowed to continue in office until the expiration of his term."

Seventh, not only the candidate party or organization must represent marginalized and
underrepresented sectors; so also must its nominees. x x x.
Eighth, x x x the nominee must likewise be able to contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a whole. (Emphasis supplied)

In 2009, by a vote of 8-7 in BANAT, this Court stretched the Ang Bagong Bayani ruling further. In BANAT,
the majority officially excluded major political parties from participating in party-list elections,60
abandoning even the lip-service that Ang Bagong Bayani accorded to the 1987 Constitution and R.A.No.
7941 that major political parties can participate in party-list elections.

The minority in BANAT, however, believed that major political parties can participate in the party-list
system through their sectoral wings. The minority expressed that "[e]xcluding the major political parties
in party-list elections is manifestly against the Constitution, the intent of the Constitutional Commission,
and R.A. No. 7941. This Court cannot engage in socio-political engineering and judicially legislate the
exclusion of major political parties from the party-list elections in patent violation of the Constitution
and the law."61 The experimentations in socio-political engineering have only resulted in confusion and
absurdity in the party-list system. Such experimentations, in clear contravention of the 1987 Constitution
and R.A. No. 7941, must now come to an end.

We cannot, however, fault the COMELEC for following prevailing jurisprudence in disqualifying
petitioners. In following prevailing jurisprudence, the COMELEC could not have committed grave abuse
of discretion. However, for the coming 13 May 2013 party-list elections, we must now impose and
mandate the party-list system actually envisioned and authorized under the 1987 Constitution and R.A.
No. 7941. In BANAT, this Court devised a new formula in the allocation of party-list seats, reversing the
COMELEC's allocation which followed the then prevailing formula in Ang Bagong Bayani. In BANAT,
however, the Court did not declare that the COMELEC committed grave abuse of discretion. Similarly,
even as we acknowledge here that the COMELEC did not commit grave abuse of discretion, we declare
that it would not be in accord with the 1987 Constitution and R.A. No. 7941 to apply the criteria in Ang
Bagong Bayani and BANAT in determining who are qualified to participate in the coming 13 May 2013
party-list elections. For this purpose, we suspend our rule62 that a party may appeal to this Court from
decisions or orders of the COMELEC only if the COMELEC committed grave abuse of discretion.

Thus, we remand all the present petitions to the COMELEC. In determining who may participate in the
coming 13 May 2013 and subsequent party-list elections, the COMELEC shall adhere to the following
parameters:

1. Three different groups may participate in the party-list system: (1) national parties or organizations, (2)
regional parties or organizations, and (3) sectoral parties or organizations.
2. National parties or organizations and regional parties or organizations do not need to organize along
sectoral lines and do not need to represent any "marginalized and underrepresented" sector.

3. Political parties can participate in party-list elections provided they register under the party-list system
and do not field candidates in legislative district elections. A political party, whether major or not, that
fields candidates in legislative district elections can participate in party-list elections only through its
sectoral wing that can separately register under the party-list system. The sectoral wing is by itself an
independent sectoral party, and is linked to a political party through a coalition.

4. Sectoral parties or organizations may either be "marginalized and underrepresented" or lacking in

"well-defined political constituencies." It is enough that their principal advocacy pertains to the special
interest and concerns of their sector. The sectors that are "marginalized and underrepresented" include
labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, and
overseas workers. The sectors that lack "well-defined political constituencies" include professionals, the
elderly, women, and the youth.

5. A majority of the members of sectoral parties or organizations that represent the "marginalized and
underrepresented" must belong to the "marginalized and underrepresented" sector they represent.
Similarly, a majority of the members of sectoral parties or organizations that lack "well-defined political
constituencies" must belong to the sector they represent. The nominees of sectoral parties or
organizations that represent the "marginalized and underrepresented," or that represent those who lack
"well-defined political constituencies," either must belong to their respective sectors, or must have a
track record of advocacy for their respective sectors. The nominees of national and regional parties or
organizations must be bona-fide members of such parties or organizations.

6. National, regional, and sectoral parties or organizations shall not be disqualified if some of their
nominees are disqualified, provided that they have at least one nominee who remains qualified.

The COMELEC excluded from participating in the 13 May 2013 party-list elections those that did not
satisfy these two criteria: (1) all national, regional, and sectoral groups or organizations must represent
the "marginalized and underrepresented" sectors, and (2) all nominees must belong to the "marginalized
and underrepresented" sector they represent. Petitioners may have been disqualified by the COMELEC
because as political or regional parties they are not organized along sectoral lines and do not represent
the "marginalized and underrepresented." Also, petitioners' nominees who do not belong to the sectors
they represent may have been disqualified, although they may have a track record of advocacy for their
sectors. Likewise, nominees of non-sectoral parties may have been disqualified because they do not
belong to any sector. Moreover, a party may have been disqualified because one or more of its nominees
failed to qualify, even if the party has at least one remaining qualified nominee. As discussed above, the
disqualification of petitioners, and their nominees, under such circumstances is contrary to the 1987
Constitution and R.A. No. 7941.

This Court is sworn to uphold the 1987 Constitution, apply its provisions faithfully, and desist from
engaging in socio-economic or political experimentations contrary to what the Constitution has
ordained. Judicial power does not include the power to re-write the Constitution. Thus, the present
petitions should be remanded to the COMELEC not because the COMELEC committed grave abuse of
discretion in disqualifying petitioners, but because petitioners may now possibly qualify to participate in
the coming 13 May 2013 party-list elections under the new parameters prescribed by this Court.

WHEREFORE, all the present 54 petitions are GRANTED. The 13 petitions, which have been granted
Status Quo Ante Orders but without mandatory injunction to include the names of petitioners in the
printing of ballots, are remanded to the Commission on Elections only for determination whether
petitioners are qualified to register under the party-list system under the parameters prescribed in this
Decision but they shall not participate in the 13 May 2013 part-list elections. The 41 petitions, which
have been granted mandatory injunctions to include the names of petitioners in the printing of ballots,
are remanded to the Commission on Elections for determination whether petitioners are qualified to
register under the party-list system and to participate in the 13 May 2013 party-list elections under the
parameters prescribed in this Decision. The Commission on Elections may conduct summary evidentiary
hearings for this purpose. This Decision is immediately executory.

SO ORDERED.

ANTONIO T. CARPIO

Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice

PRESBITERO J. VELASCO, JR.

Associate Justice TERESITA J. LEONARDO-DE CASTRO

Associate Justice
ARTURO D. BRION

Associate Justice DIOSDADO M. PERALTA

Associate Justice

LUCAS P. BERSAMIN

Associate Justice MARIANO C. DEL CASTILLO

Associate Justice

ROBERTO A. ABAD

Associate Justice MARTIN S. VILLARAMA, JR.

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice JOSE C. MENDOZA

Associate Justice

BIENVENIDO L. REYES

Associate Justice (on leave)

ESTELA M. PERLAS-BERNABE*

Associate Justice

MARVIC MARIO VICTOR F. LEONEN

Associate Justice

CERTIFICATION

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

MARIA LOURDES P. A. SERENO

Chief Justice
Footnotes

1 Under Rule 64 in relation to Rules 65 of the 1997 Rules of Civil Procedure.

2 Rollo (G.R. Nos. 203818-19), pp. 1079-1080.

3 Rollo (G.R. No. 204094), pp. 176-177.

4 Rollo (G.R. No. 204141), pp. 145-148.

5 Rollo (G.R. No. 203766), unpaginated.

6 Id.

7 Id.

8 Rollo (G.R. No. 204379), pp. 26-35. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Armando C. Velasco, Christian Robert S. Lim, and Maria Gracia Cielo M. Padaca, with
Commissioners Lucenito N. Tagle and Elias R. Yusoph dissenting.

9 Rollo (G.R. No. 204455), pp. 38-55; rollo (G.R. No. 204426), pp. 127-144. Signed by Chairman Sixto S.
Brillantes, Jr. and Commissioners Rene V. Sarmiento, Christian Robert S. Lim, and Maria Gracia Cielo M.
Padaca, with Commissioners Lucenito N. Tagle and Elias R. Yusoph dissenting; Commissioner Armando C.
Velasco also concurred except for Ala-Eh.

10 Rollo (G.R. No. 204435), pp. 47-55. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Armando C. Velasco, Christian Robert S. Lim, and Maria Gracia Cielo M. Padaca, with
Commissioners Lucenito N. Tagle and Elias R. Yusoph dissenting.

11 Rollo (G.R. No. 204367), pp. 30-35. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Armando C. Velasco, Christian Robert S. Lim, and Maria Gracia Cielo M. Padaca, with
Commissioners Lucenito N. Tagle and Elias R. Yusoph dissenting.
12 Rollo (G.R. No. 204370), pp. 37-50. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Armando C. Velasco, Christian Robert S. Lim, and Maria Gracia Cielo M. Padaca, with
Commissioners Lucenito N. Tagle and Elias R. Yusoph dissenting.

13 Rollo (G.R. No. 204436), pp. 45-57. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Armando C. Velasco, Christian Robert S. Lim, and Maria Gracia Cielo M. Padaca, with
Commissioners Lucenito N. Tagle and Elias R. Yusoph dissenting.

14 Rollo (G.R. No. 204485), pp. 42-49. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Armando C. Velasco, and Christian Robert S. Lim with Commissioners Lucenito N. Tagle and
Elias R. Yusoph dissenting. Commissioner Maria Gracia Cielo M. Padaca took no part.

15 Rollo (G.R. No. 204139), pp. 505-512. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners
Rene V. Sarmiento, Lucenito N. Tagle, and Armando C. Velasco. Commissioners Elias R. Yusoph and
Christian Robert S. Lim also voted in favor. Commissioner Maria Gracia Cielo M. Padaca took no part.

16 Rollo (G.R. No. 204402), pp. 22-33. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Lucenito N. Tagle, Elias R. Yusoph, and Christian Robert S. Lim. Commissioners Armando C.
Velasco and Maria Gracia Cielo M. Padaca on official business.

17 Rollo (G.R. No. 204394), pp. 59-62. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Lucenito N. Tagle, Armando C. Velasco, Elias R. Yusoph, and Christian Robert S. Lim.
Commissioner Maria Gracia Cielo M. Padaca took no part.

18 Rollo, (G.R. No. 204490), pp. 71-78. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners
Armando C. Velasco, Elias R. Yusoph, and Christian Robert S. Lim. Commissioners Lucenito N. Tagle and
Rene V. Sarmiento concurred but took no part in Ang Ating Damayan. Commissioner Maria Gracia Cielo
M. Padaca took no part.

19 Rollo, (G.R. No. 204484), pp. 42-45. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners
Rene V. Sarmiento, Lucenito N. Tagle, Armando C. Velasco, Elias R. Yusoph, Christian Robert S. Lim, and
Maria Gracia Cielo M. Padaca.
20 PBB’s petition is docketed as G.R. No. 204484 before this Court, and as SPP No. 11-002 before the
COMELEC.

21 In the Matter of Clarifying the Inclusion in the Party-List Raffle of New Groups Denied Accreditation
but were Able to Obtain a Status Quo Ante Order from the Supreme Court.

22 (2) To set for summary evidentiary hearings by the Commission En Banc, for purposes of determining
their continuing compliance with the requirements of R.A. No. 7941 and the guidelines in the Ang
Bagong Bayani case, and, if non-compliant, cancel the registration of the following:

(a) Party-list groups or organizations which are already registered and accredited and will participate in
the May 13, 2013 Elections, provided that the Commission En Banc has not passed upon the grant of
their respective Petitions for Registration; and

(b) Party-list groups or organizations which are existing and retained in the list of Registered Party-List
Parties per Resolution No. 9412, promulgated on 27 April 2012, and which have filed their respective
Manifestations of Intent to Participate in the Party-List System of Representation in the May 13, 2013
Elections. (Boldface and italics in the original)

23 412 Phil. 308 (2001).

24 Rollo (G.R. Nos. 203818-19), pp. 83-87. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners
Rene V. Sarmiento, Lucenito N. Tagle, Armando C. Velasco, Elias R. Yusoph, and Christian Robert S. Lim.
Commissioner Maria Gracia Cielo M. Padaca took no part.

25 Rollo (G.R. No. 203766), pp. 75-99; rollo (G.R. No. 203981), pp. 47-70; rollo (G.R. No. 204002), pp. 53-
76; (G.R. No. 204318), pp. 23-46. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Lucenito
N. Tagle, Armando C. Velasco, Elias R. Yusoph, and Christian Robert S. Lim. Commissioner Rene V.
Sarmiento also voted in favor. Commissioner Maria Gracia Cielo M. Padaca took no part.

26 Rollo, (G.R. No. 204100), pp. 52-67; rollo (G.R. No. 204122), pp. 36-51; rollo (G.R. No. 204263), pp. 28-
43. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene V. Sarmiento, Lucenito N. Tagle,
Armando C. Velasco. Elias R. Yusoph, and Christian Robert S. Lim. Commissioner Maria Gracia Cielo M.
Padaca took no part.
27 Rollo (G.R. No. 203960), pp. 61-68. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners
Lucenito N. Tagle, Armando C. Velasco, and Elias R. Yusoph. Commissioner Christian Robert S. Lim also
concurred but did not sign. Commissioners Rene V. Sarmiento and Maria Gracia Cielo M. Padaca took no
part.

28 Rollo (G.R. No. 203922), pp. 92-101. Signed by Commissioners Rene V. Sarmiento, Lucenito N. Tagle,
Armando C. Velasco, Elias R. Yusoph, and Christian Robert S. Lim. Chairman Sixto S. Brillantes, Jr. penned
a Separate Concurring Opinion. Commissioner Maria Gracia Cielo M. Padaca took no part.

29 Rollo (G.R. No. 204174), pp. 158-164. Signed by Commissioners Rene V. Sarmiento, Lucenito N. Tagle,
Armando C. Velasco, and Elias R. Yusoph. Commissioner Christian Robert S. Lim also concurred but did
not sign. Chairman Sixto S. Brillantes, Jr. penned an extended opinion.

Commissioner Maria Gracia Cielo M. Padaca took no part.

30 Rollo (G.R. No. 203976), pp. 21-37. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Lucenito N. Tagle, Armando C. Velasco, Christian Robert S. Lim. Commissioner Elias R.
Yusoph also voted in favor. Commissioner Maria Gracia Cielo M. Padaca took no part.

31 Rollo (G.R. No. 204240), pp. 47-69; rollo (G.R. No. 203936), pp. 128-150; rollo (G.R. No. 204126), pp.
51-73; rollo (G.R. No. 204364), pp. 34-56; rollo (G.R. No. 204141), pp. 31-53; rollo (G.R. No. 204408), pp.
46-68; rollo (G.R. No. 204153), pp. 24-46; rollo (G.R. No. 203958), pp. 26-48. Signed by Chairman Sixto S.
Brillantes, Jr. and Commissioners Rene V. Sarmiento, Lucenito N. Tagle. Armando C. Velasco.
Commissioner Elias R. Yusoph also voted in favor. Commissioner Christian Robert S. Lim also concurred
but inhibited in KAKUSA. Commissioner Maria Gracia Cielo M. Padaca took no part.

32 Rollo (G.R. No. 204428), pp. 35-40. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Lucenito N. Tagle, and Armando C. Velasco. Commissioner Christian Robert S. Lim also
concurred but did not sign. Commissioner Elias R. Yusoph also voted in favor but was on official business
at the time of signing. Commissioner Maria Gracia Cielo M. Padaca took no part.

33 Rollo (G.R. No. 204094), pp. 30-40. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Lucenito N. Tagle, Elias R. Yusoph, and Christian Robert S. Lim. Commissioners Armando C.
Velasco and Maria Gracia Cielo M. Padaca were on official business.
34 Rollo, (G.R. No. 204239), pp. 25-42; rollo (G.R. No. 204236), pp. 57-74; rollo (G.R. No. 204341), pp. 29-
46. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene V. Sarmiento, Lucenito N. Tagle,
Elias R. Yusoph, and Christian Robert S. Lim. Commissioner Armando C. Velasco was on official business.
Commissioner Maria Gracia Cielo M. Padaca took no part.

35 Rollo (G.R. No. 204358), pp. 140-148. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners
Rene V. Sarmiento, Lucenito N. Tagle, Elias R. Yusoph, Christian Robert S. Lim, and Maria Gracia Cielo M.
Padaca. Commissioner Armando C. Velasco was on official business.

36 Rollo (G.R. No. 204359), pp. 42-50. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Lucenito N. Tagle, Armando C. Velasco, and Elias R. Yusoph. Commissioner Christian Robert
S. Lim also concurred but was on official business at the time of signing. Commissioner Maria Gracia
Cielo M. Padaca took no part.

37 Rollo (G.R. No. 204238), pp. 54-58. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Lucenito N. Tagle, Elias R. Yusoph, and Christian Robert S. Lim. Commissioners Armando C.
Velasco and Maria Gracia Cielo M. Padaca were on official business.

38 Rollo (G.R. No. 204323), pp. 44-48. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Lucenito N. Tagle, Elias R. Yusoph, Christian Robert S. Lim, and Maria Gracia Cielo M.
Padaca. Commissioner Armando C. Velasco was on official business.

39 Rollo (G.R. No. 204321), pp. 43-51. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Lucenito N. Tagle, Elias R. Yusoph, Christian Robert S. Lim, and Maria Gracia Cielo M.
Padaca. Commissioner Armando C. Velasco was on official business.

40 Rollo (G.R. No. 204125), pp. 44-48. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Lucenito N. Tagle, Elias R. Yusoph, and Christian Robert S. Lim. Commissioner Armando C.
Velasco was on official business. Commissioner Maria Gracia Cielo M. Padaca took no part.

41 Rollo (G.R. No. 204216), pp. 23-28. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Lucenito N. Tagle, Elias R. Yusoph, and Maria Gracia Cielo M. Padaca. Commissioner
Christian Robert S. Lim penned a separate Concurring Opinion. Commissioner Armando C. Velasco was
on official business.
42 Rollo (G.R. No. 204220), pp. 39-44. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Lucenito N. Tagle, Elias R. Yusoph, and Christian Robert S. Lim. Commissioners Armando C.
Velasco and Maria Gracia Cielo M. Padaca were on official business.

43 Rollo (G.R. No. 204158), pp. 59-64. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Lucenito N. Tagle, Armando C. Velasco, Elias R. Yusoph, and Christian Robert S. Lim.
Commissioner Maria Gracia Cielo M. Padaca took no part.

44 Rollo (G.R. No. 204374), pp. 36-41. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Lucenito N. Tagle, Armando C. Velasco, Elias R. Yusoph, and Christian Robert S. Lim.
Commissioner Maria Gracia Cielo M. Padaca took no part.

45 Rollo (G.R. No. 204356), pp. 56-64. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Lucenito N. Tagle, Armando C. Velasco, Elias R. Yusoph, and Christian Robert S. Lim.
Commissioner Maria Gracia Cielo M. Padaca took no part.

46 Rollo (G.R. No. 204486), pp. 42-47. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Armando C. Velasco, Elias R. Yusoph and Christian Robert S. Lim. Commissioners Lucenito
N. Tagle and Maria Gracia Cielo M. Padaca took no part.

47 Rollo (G.R. No. 204410), pp. 63-67. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Armando C. Velasco, and Christian Robert S. Lim. Commissioner Lucenito N. Tagle penned a
Dissenting Opinion and joined by Commissioner Elias R. Yusoph. Maria Gracia Cielo M. Padaca took no
part.

48 Rollo (G.R. No. 204421), pp. 43-50; rollo (G.R. No. 204425), pp. 21-28. Signed by Chairman Sixto S.
Brillantes, Jr. and Commissioners Rene V. Sarmiento, Christian Robert S. Lim, and Maria Gracia Cielo M.
Padaca with Commissioners Lucenito N. Tagle, Armando C. Velasco, and Elias R. Yusoph, dissenting.

49 G.R. Nos. 179271 and 179295, 21 April 2009, 586 SCRA 210.

50 II Record, CONSTITUTIONAL COMMISSION 566-567 (1 August 1986).

51 II Record, CONSTITUTIONAL COMMISSION 85-86 (22 July 1986).

52 II RECORD, CONSTITUTIONAL COMMISSION 85-86 (22 July 1986), 256-257 (25 July 1986).

53 II RECORD, CONSTITUTIONAL COMMISSION 257 (25 July 1986).

54 412 Phil. 347, 350 (2001).

55 Party-List System: The Philippine Experience, Fritzie Palma Tangkia and Ma. Araceli Basco Habaradas,
Ateneo School of Government and Friedrich Ebert Stiftung (FES), Philippine Office, April 2001,
http://library.fes.de/pdf-files/bueros/philippinen/50076.pdf (accessed 30 March 2013).

56 Section 5. Registration. – Any organized group of persons may register as a party, organization or
coalition for purposes of the party-list system by filing with the COMELEC not later than ninety (90) days
before the election a petition verified by its president or secretary stating its desire to participate in the
party-list system as a national, regional or sectoral party or organization or a coalition of such parties or
organizations, attaching thereto its constitution, by-laws, platform or program of government, list of
officers, coalition agreement and other relevant information as the COMELEC may require: Provided,
That the sectors shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities,
elderly, handicapped, women, youth, veterans, overseas workers, and professionals.

The COMELEC shall publish the petition in at least two (2) national newspapers of general circulation.

The COMELEC shall, after due notice and hearing, resolve the petition within fifteen (15) days from the
date it was submitted for decision but in no case not later than sixty (60) days before election.

57 Section 2. Declaration of Policy. — The State shall promote proportional representation in the election
of representatives to the House of Representatives through a party-list system of registered national,
regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens
belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-
defined political constituencies but who could contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a whole, to become members of the House of
Representatives. Towards this end, the State shall develop and guarantee a full, free and open party
system in order to attain the broadest possible representation of party, sectoral or group interests in the
House of Representatives by enhancing their chances to compete for and win seats in the legislature,
and shall provided the simplest scheme possible. (Emphasis supplied)
58 The National Statistical Coordination Board (NSDB) classifies the population into three income groups:
the high income, the middle income, and the low income group. See Table 2. Annual Family Income of
the Low, Middle, and High Income Classes: 1997,
http://www.nscb.gov.ph/ncs/10thNCS/papers/contributed%20papers/cps-12/cps12-01.pdf (accessed 30
March 2013).

59 Section 11 of R.A. No. 7941 provides in part:

x x x For purposes of the May 1988 elections, the first five (5) major political parties on the basis of party
representation in the House of Representatives at the start of the Tenth Congress of the Philippines shall
not be entitled to participate in the party-list system.

x x x.

60 G.R. Nos. 179271 and 179295, 21 April 2009, 586 SCRA 210, 258 citing CONSTITUTION, Art. XIII, Sec.
1.

61 Id. at 251.

62 Rule 64 in relation to Rule 65, 1997 Rules of Civil Procedure.

The Lawphil Project - Arellano Law Foundation

CONCURRING AND DISSENTING OPINION

SERENO, J.:

The party-list system is primarily a

Tool for social justice.

I believe that the ponencia may have further marginalized the already marginalized and
underrepresented of this country. In the guise of political plurality, it allows national and regional parties
or organizations to invade what is and should be constitutionally and statutorily protected space. What
the ponencia fails to appreciate is that the party-list system under the 1987 Constitution and the party-
list law or RA 7941 is not about mere political plurality, but plurality with a heart for the poor and
disadvantaged.

The creation of a party-list system under the 1987 Constitution and RA 7941 was not done in a vacuum.
It comprehends the reality of a Filipino nation that has been and still is struggling to come to terms with
much social injustice that has been perpetrated over centuries against a majority of its people by foreign
invaders and even by its own governments.

This injustice is the fertile ground for the seeds which, watered by the blood spilled during the Martial
Law years, ripened to the revolution of 1986. It is from this ferment that the 1987 Constitution was born.
Thus, any reading of the 1987 Constitution must be appropriately sensitive to the context from which it
arose. As stated in Civil Liberties Union v. Executive Secretary:

A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the
object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light of the history of the times, and the
condition and circumstances under which the Constitution was framed. The object is to ascertain the
reason which induced the frames of the Constitution to enact the particular provision and the purpose
sought to be accomplished thereby, in order to construe the whole as to make the words consonant to
that reason and calculated to effect that purpose.1 (Emphasis supplied)

The heart of the 1987 Constitution is the Article on Social Justice. This is apropos since it is a document
that not only recognizes but tries to heal the wounds of history. To harken to the words of Cecilia Muños-
Palma, President of the 1986 Constitutional Commission:

THE PRESIDENT: My distinguished colleagues in this Assembly:

xxx xxx xxx

My colleagues, in all humility, but with profound pride, I vote in favor of the Constitution drafted by this
Constitutional Commission because I believe that the document is a worthy and inspiring legacy we can
hand down to the Filipino people of today, tomorrow, and for posterity.

The reason I will give have been given by most of the Members of this Constitutional Commission this
evening. But permit me to restate them just to stress the reason why I am voting in favor.

For the first time in the history of constitution- making in our country, we set forth in clear and positive
terms in the Preamble which is the beacon light of the new Charter, the noble goal to establish a just and
humane society. This must be so because at present we have to admit that there are so few with so
much and so many with so little. We uphold the Rule of Law where no man is above the law, and we
adhere to the principles of truth, justice, freedom, equality, love and peace. Yes, for the first time and
possibly this is the first Constitution where "love" is enshrined. This is most significant at this period in
our national life when the nation is bleeding under the forces of hatred and violence, brothers fighting
against brothers, Filipinos torturing and killing their own countrymen. Without love, there can be no
peace.

The new Charter establishes a republican democratic form of government with three branches each
independent and coequal of each affording a check and balance of powers. Sovereignty resides in the
people.

xxx xxx xxx

For the first time, and possibly this is the first and only Constitution which provides for the creation of a
Commission on Human Rights entrusted with the grave responsibility of investigating violations of civil
and political right by any party or groups and recommending remedies therefor. The new Charter also
sets forth quite lengthily provisions on economic, social and cultural rights spread out in separate articles
such as the Articles on Social Justice, Education and Declaration of Principles. It is a document which in
clear and in unmistakable terms reaches out to the underprivileged, the paupers, the sick, the elderly,
disabled, veterans and other sectors of society. It is a document which opens an expanded improved way
of life for the farmers, the workers, fishermen, the rank and file of those in service in the government.
And that is why I say that the Article on Social Justice is the heart of the new Charter.2 (Emphasis
supplied)

That is why Section 1, Article XIII, provides that: "The Congress shall give highest priority to the
enactment of measures that protect and enhance the right of all the people to human dignity, reduce
social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth
and political power for the common good."3 As explained by this Court:
Further, the quest for a better and more "equal" world calls for the use of equal protection as a tool of
effective judicial intervention.

Equality is one ideal which cries out for bold attention and action in the Constitution. The Preamble
proclaims "equality" as an ideal precisely in protest against crushing inequities in Philippine society. The
command to promote social justice in Article II, Section 10, in "all phases of national development,"
further explicitated in Article XIII, are clear commands to the State to take affirmative action in the
direction of greater equality…. There is thus in the Philippine Constitution no lack of doctrinal support for
a more vigorous state effort towards achieving a reasonable measure of equality.

Cur present Constitution has gone further in guaranteeing vital social and economic rights to
marginalized groups of society, including labor. Under the policy of social justice, the law bends over
backward to accommodate the interests of the working class on the humane justification that those with
less privilege in life should have more in law. And the obligation to afford protection to labor is
incumbent not only on the legislative and executive branches but also on the judiciary to translate this
pledge into a living reality. Social justice calls for the humanization of laws and the equalization of social
and economic forces by the State so that justice in its rational and objectively secular conception may at
least be approximated.4 (Emphasis supplied)

This is also why the 1987 Constitution is replace with other social justice provisions, including Sections 9,
10, 13, 14, 18 and 22 of Article II, Section 2 of Article V, Section 5 (1) (2) of Article VI, Sections 1, 2, 3, 5,
6, 10, 11, 12, 13 of Article XII, and Article XIII. As aptly pointed out by Commissioner Guingona in his
sponsorship speech for the approval of the entire draft of the 1987 Constitution, social justice was the
underlying philosophy of the drafters when crafting the provisions of the fundamental law. Thus:

MR. GUINGONA: Thank you, Mr. Presiding Officer.

This sponsorship speech is for the entire draft of the Constitution of the Republic of the Philippines.

Today, we have completed the task of drafting a Constitution which is reflective of the spirit of our time –
a spirit of nationalism, a spirit of liberation, a spirit of rising expectations.

On June 2, forty-eight men and women met in this hall-men and women from different walks of life with
diverse backgrounds and orientations, even with conflicting convictions, but all sharing the same earnest
desire to serve the people and to help draft a Constitution which will establish a government that the
people can trust and enthusiastically support, a Constitution that guarantees individual rights and serves
as a barrier against excesses of those in authority.

xxx xxx xxx

A Constitution of the people and for the people derives its authenticity and authority from the sovereign
will; the power of the people precedes it. As such, it should reflect the norms, the values, the modes of
thought of our society, preserve its heritage, promote its orderliness and security, protect its cherished
liberties and guard against the encroachments of would-be dictators. These objectives have served as
the framework in the work of drafting the 1986 Constitution.

xxx xxx xxx

A significant innovation, as far as the legislative department is concerned, refers to the composition of
the members of the House of Representatives. Representation in the Lower House has been broadened
to embrace various sectors of society; in effect, enlarging the democratic base. It will be constituted by
members who shall be elected in the traditional manner, representing political districts, as well as by
members who shall be elected through the party list system.

xxx xxx xxx

The institutions through which the sovereign people rule themselves are essential for the effective
operation of government. But these are not enough in order that the body politic may evolve and
progress. There is need for an underlying socio-economic philosophy which would direct these political
structures and serve as the mainspring for development. So it is that the draft Constitution contains
separate Articles on Social Justice and National Economy and Patrimony.

Talk of people’s freedom and legal equality would be empty rhetoric as long as they continue to live in
destitution and misery, without land, without employment, without hope. But in helping to bring about
transformation, in helping the common man break away from the bondage of traditional society, in
helping restore to him his dignity and worth, the right to individual initiative and to property shall be
respected.

The Social Justice Article, to which our Commission President, the Honorable Cecilia Muños Palma, refers
to as the "heart of the Constitution," provides that Congress shall give highest priority to the enactment
of measures that would reduce social, economic and political inequalities. The same article addresses
the problems of (1) labor – local and overseas, organized and unorganized – recognizing the rights of all
workers in the private as well as in the public sector, the rank and file and the supervisory, to self-
organization, collective bargaining and peaceful and concerted activities including the right to strike in
accordance with law; (2) the farmers, the farm workers, the subsistence fishermen and the fishworkers,
through agrarian and natural resources reform; (3) the underprivileged and homeless citizens in urban
centers and resettlement arcas, through urban land reform and housing; (4) the health of the people,
through an integrated and comprehensive approach to health development; (5) the women, by ensuring
the fundamental equality of women and men before the law, and (6) people’s organizations, by
facilitating the establishment of adequate consultation mechanisms.

xxx xxx xxx

These are some of the provisions which we have constitutionalized. These are some of the innovations
that we have introduced. These are the ideas, values and institutions which we have drawn and which
we trust would serve as the foundation of our society, the keystone of our national transformation and
development, the driving force for what we pray would be our irreversible march to progress. In brief,
this is what the men and women of the 1986 Constitutional Commission have drafted under the able,
firm and decided leadership of our President, the Honorable Cecilia Muñoz Palma.

The Constitution that we have drafted is a practical instrument suited to the circumstances of our time. It
is also a Constitution that does not limit its usefulness to present needs; one which, in the words of U.S.
Supreme Court Chief Justice John Marshall, and I quote, "is intended to endure for ages to come and
consequently to be adapted to the various crises of human affairs." As we present the proposed
fundamental law, we pray that our efforts would pave the way towards the establishment of a renewed
constitutional government which we were deprived of since 1972, that these efforts would ensure that
the triumph at EDSA so deserving won by the people shall continue to be enjoyed by us and our
posterity for all time, that these efforts would result in the drafting of a democratic Constitution – a
Constitution that enshrines people’s power and the rule of law; a Constitution which would seek to
establish in this fair land a community characterized by moral regeneration, social progress, political
stability, economic prosperity, peace, love and concern for one another; a Constitution that embodies
vital living principles that seek to secure for the people a better life founded on liberty and welfare for
all.

Mr. Presiding Officer, on behalf of this Commission’s Sponsorship Committee, I have the honor to move
for the approval of the draft Constitution of the Republic of the Philippines on Second Reading.5
It is within this historical and textual millieu that the party-list provisions in the 1987 Constitution should
be interpreted. Every provision should be read in the context of all the other provisions so that contours
of constitutional policy is made clear.6

The place of the party-list system in the constitutional scheme was that it provided for the realization of
the ideals on social justice in the political arena.7

The concept is not new, as discussed by political theorist Terry MacDonald:

First, an idea that has received much attention among democratic theorists is that representatives
should be selected to ‘mirror’ the characteristics of those being represented – in terms of gender,
ethnicity, and other such characteristics judged to be socially relevant. This idea has been advocated
most notably in some recent democratic debates focused on the need for special representation of
disadvantaged and under-represented social groups within democratic assemblies. The applicability of
this idea of ‘mirror’ representation is not confined to debates about representing marginalized
minorities within nation-states; Iris Young further applies this model of representation to global politics,
arguing the global representation should be based on representation of the various ‘peoples’ of the
world, each of which embodies its own distinctive identity and ‘perspective’. In practice, special
representation for certain social groups within a ‘mirror’ framework can be combined with election
mechanisms in various ways – such as by according quotas of elected representatives to designated
social groups. But since the selection of these ‘social groups’ for special representation would
nonetheless remain a distinct element of the process of selecting legitimate representatives, occurring
prior to the electoral process, such ‘mirror’ representation is still recognizable as a distinct mechanism
for selecting representative agents.8 (Emphasis supplied)

Two months after initial debates on the form and structure of government that would best promote
equality, the Commission broke ground on the promotion of political equality and provided for sectoral
representation in the party-list system of the legislature. Commissioner Villacorta opened the debates on
the party-list system.9

MR. VILLACORTA: … On this first day of August 1986, we shall, hopefully, usher in a new chapter in our
national history by giving genuine power to our people in the legislature…

Commissioner Jaime Tadeo explained the circumstances the party-list system sought to address:10

MR. TADEO: … Ang Cory government ay iniakyat ng people’s power. Kaya kami naririto sa Con-Com ay
dahil sa people’s power – nasa amin ang people, wala sa amin ang power. Ganito ito kahalaga.
The Legislature is supposed to implement or give flesh to the needs and aspirations of the Filipino
people.

Ganoon kahalaga and National Assembly kaya’t napakahalaga noong Section 5 and Section 31 ng ating
Constitution. Our experience, however, has shown that legislation has tended to benefit more the
propertied class who constitutioes a small minority in our society than the impoverished majority, 70
percent of whom live below the poverty line. This has come about because the rich have managed to
dominate and control the legislature, while the basic sectors have been left out of it. So, the critical
question is, how do we ensure ample representation of basic sectors in the legislature so that laws
reflect their needs and aspirations?

RA 7941 was enacted pursuant to the party-list provisions of the 1987 Constitution. Not only is it a
"social justice tool", as held in Ang Bagong,11 but it is primarily so. This is not mere semantics but a
matter of legal and historical accuracy with material consequences in the realm of statutory
interpretation.

The ponencia gives six (6) parameters that the COMELEC should adhere to in determining who may
participate in the coming 13 May 2013 and subsequent party-list elections. I shall discuss below my
position in relation to the second, fourth and sixth parameter enunciated in the ponencia.

"Marginalized and underrepresented" under Section 2 of RA 7941 qualifies national, regional and
sectoral parties or organizations.

Under the second parameter, "national parties or organizations and regional parties or organizations do
not need to organize along sectoral lines and do not need to represent any "marginalized and
underrepresented" in Section 2 of RA 7941 to qualify only sectoral parties or organizations, and not
national and regional parties or organizations.

I dessent for the following reasons.

First, since the party-list system is primarily a tool for social justice, the standard of "marginalized and
underrepresented" under Section 2 must be deemed to qualify national, regional and sectoral parties or
organizations. To argue otherwise is to divorce national and regional parties or organizations from the
primary objective of attaining social justice, which objective surrounds, permeates, imbues, and
underlies the entirety of both the 1987 Constitution and RA 7941.
Second, Second 2 of RA 7941 states that the party-list system seeks to "enable Filipino citizens belonging
to the marginalized and underrepresented sectors, organizations and parties . . . to become members of
the House of Representatives" On its face, it is apparent that "marginalized and underrepresented"
qualifies "sectors", "organizations" and "parties".

Third, even assuming that it is not so apparent, in terms of statutory construction, the import of "social
justice" that has developed in various decisions is that when the law can be interpreted in more ways
than one, an interpretation that favors the underprivileged must be favored.12

Lastly, deliberations of the Constitutional Commission show that the party-list system is a countervailing
means for the weaker segments of our society to overcome the preponderant advantages of the more
entrenched and well-established political parties. To quote:

MR. OPLE: So, Commissioner Monsod grants that the basic principle for a prty list system is that it is a
countervailing means for the weaker segments of our society, if they want to seek seats in the
legislature, to overcome the preponderant advantages of the more entrenched and well-established
political parties, but he is concerned that the mechanics might be inadequate at this time.

MR. MONSOD: Not only that; talking about labor, for example – I think Commissioner Tadeo said there
are 10 to 12 million laborers and I understand that organized labor is about 4.8 million or 4.5 million – if
the laborers get together, they can have seats. With 4 million votes, they would have 10 seats under the
party list system.

MR. OPLE: So, the Commissioner would favor a party list system that is open to all and would not agree
to a party list system which seeks to accommodate, in particular, the so-called sectoral groups that are
predominantly workers and peasants?

MR. MONSOD: If one puts a ceiling on the number that each party can put within the 50, and I am
assuming that maybe there are just two major parties or three at the most, then it is already a form of
operating it up for other groups to come in, All we are asking is that they produce 400,000 votes
nationwide. The whole purpose of the system is precisely to give room for those who have a national
constituency who may never be able to win a seat on a legislative district basis. But they must have a
constituency of at least 400,000 in order to claim a voice in the National Assembly.13 (emphasis
supplied)
However, the second parameter would allow the more entrenched and well-established political parties
and organizations to complete with the weaker segments of society, which is the very evil sought to be
guarded against.

The ponencia’s second parameter is premised on the following grounds, among others.

First, the ponencia explains that the text of the 1987 Constitution and RA 7941, and the proceedings of
the Constitutional Commission evince an indisputable intent to allow national, regional, and sectoral
parties and organizations to participate in the party-list system. To require national and regional parties
and organizations to represent the marginalized and underrepresented makes them effectively sectoral
parties and organizations and violates this intent.

The error here is to conclude that if the law treats national, regional and sectoral parties and
organizations the same by requiring that they represent the "marginalized and underrepresented," they
become the same. By analogy, people can be treated similarly but that does not make them identical.

Second, the ponencia rules that since under the Section 5 (2), Article VI of the 1987 Constitution, only
50% of the seats are allocated during the first three consecutive terms of Congress after the ratification
of the 1987 Constitution to representatives from the labor, peasant, urban poor, etc., it necessarily
follows that the other 50% would be allocated to representatives from sectors which are non-
marginalized and underrepresented.

The error here is to conclude that the latter statement necessarily follows if the former is true. This is not
so since the latter 50% can very well include representatives from other non-enumerated sectors, or
even national or regional parties and organizations, all of which can be "marginalized and
underrepresented."

Third, the ponencia adds that it would prevent ideology-based and cause-oriented parties, who cannot
win in legislative district elections, from participating in the party-list system.

The error here is to conclude that such ideology-based or cause-oriented parties are necessarily non
marginalized or underrepresented, which would in turn depend on how "marginalization and
underrepresentation" is defined. The ponencia appears to be operating under a preconceived notion
that "marginalized and underrepresented" refers only to those "economically" marginalized.
However, there is no need for this Court to define the phrase "marginalized and underrepresented,"
primarily because it already constitutes sufficient legislative standard to guide the COMELEC as an
administrative agency in the exercise of its discretion to determine the qualification of a party-list group.

As long as such discretion is not gravely abused, the determination of the COMELEC must be upheld. This
is consistent with our pronouncement in Ang Bagong Bayani that, "the role of the COMELEC is to see to it
that only those Filipinos that are ‘marginalized and underrepresented’ become members of the Congress
under the party-list system."

For as long as the agency concerned will be able to promulgate rules and regulations to implement a
given legislation and effectuate its policies, and that these regulations are germane to the objects and
purposes of the law and not in contradiction to but in conformity with the standards prescribed by the
law, then the standards may be deemed sufficient.14

We should also note that there is a time element to be considered here, for those who are marginalized
and underrepresented today may no longer be one later on. Marginalization and underrepresentation is
an ever evolving concept, created to address social disparities, to be able to give life to the "social
justice" policy of our Constitution.15 Confining its definition to the present context may unduly restrict
the COMELEC of its quasi-legislative powers which enables it to issue rules and regulations to implement
the election laws and to exercise such legislative functions as may expressly be delegated to it by
Congress.16

Flexibility of our laws is a key factor in reinforcing the stability of our Constitution, because the
legislature is certain to find it impracticable, if not impossible, to anticipate situations that may be met in
carrying laws into effect.17 The growing complexity of modern life, the multiplication of the subject of
governmental regulations, and the increased difficulty of administering the laws, the rigidity of the
theory of separation of governmental powers is largely responsible in empowering the COMELEC to not
only execute elections laws, but also promulgate certain rules and regulations calculated to promote
public interest.18 This is the principle of subordinate legislation discussed in People v. Rosenthal19 and
in Pangasinan Transportation vs. Public Service Commission.20

This is consistent with our pronouncement in Ang Bagong Bayani that, "the role of the COMELEC is to see
to it that only those Filipinos that are ‘marginalized and underrepresented’ become members of the
Congress under the party-list system."

Fourth, the ponencia holds that failure of national and regional parties to represent the marginalized and
underrepresented is not a ground for the COMELEC to refuse or cancel registration under Section 6 of RA
7941.
The error here is that under Section 6 (5), the COMELEC may refuse or cancel if the party "violates or
fails to comply with laws." Thus, before the premise can be correct, it must be first established that
"marginalization and underrepresentation" is not a requirement of the law, which is exactly what is at
issue here.

Fifth, the ponencia makes too much of the fact that the requirement of "marginalization and
underrepresentation" appears only once in RA 7941.

The error here is to conclude that the phrase has to appear more than once to carry sufficient legal
significance. "Marginalization and underrepresentation" is in the nature of a legislative standard to guide
the COMELEC in the exercise of its administrative powers. This Court has held that to avoid the taint of
unlawful delegation, there must be a standard, which implies at the very least that the legislature itself
determines matters of principle and lays down fundamental policy. Otherwise, the change of complete
abdication may be hard to repel. A standards thus defines legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to apply it. The standard does not even have to be spelled
out. It could be implied from the policy and purpose of the act considered as a whole.21 Consequently,
we have held that "public welfare"22 and "public interest"23 are examples of such sufficient standards.
Therefore, that it appears only once in RA 7941 is more than sufficient, since a standard could even be an
implied one.

National, regional and sectoral Parties or organizations must both Represent the "marginalized and
Underrepresented" and lack "well- Defined political constituencies". The fourth parameter in the
ponencia states:

4. Sectoral parties or organizations may either be "marginalized and underrepresented" or lacking in

"well-defined political constituencies." It is enough that their principal advocacy pertains to the special
interest and concerns of their sector. The sectors that are "marginalized and underrepresented" include
labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, and
overseas workers. The sectors that lack "well-defined political constituencies" include professionals, the
elderly, women, and the youth.

I dissent for the following reasons.

First, Section 2 of RA 7941 clearly makes the "lack of a "well-defined political constituency" as a
requirement along with "marginalization and underrepresentation." They are cumulative requirements,
not alternative. Thus, underrepresentation." They are cumulative requirements, not alternative. Thus,
sectoral parties and organizations intending to run in the party-list elections must meet both.

Second, the ponencia appears to be operating under preconceived notions of what it means to be
"marginalized and underrepresented" and to "lack a well-defined political constituency." For reasons
discussed above, the exact content of these legislative standards should be left to the COMELEC. They
are ever evolving concepts, created to address social disparities, to be able to give life to the "social
justice" policy of our Constitution.

The disqualification of a nominee should not disqualify the party-list group provided that: (1) it meets
Guideline Nos. 1-5 of Ang Bagong Bayani (alternately, on the basis of the new parameters set in the
ponencia, that they validly qualify as national, regional or sectoral party-list group); and (2) one of its top
three (3) nominees remains qualified.

I concur with the ponencia that an advocate may qualify as a nominee. However, I would like to explain
my position with regard to the sixth parameter set forth in the ponencia with respect to nominees.

To recall, the sixth parameter in the ponencia provides:

6. National, regional and sectoral parties or organizations shall not be disqualified if some of their
nominees are disqualified, provided that they have at least one nominee who remain qualified.

I propose the view that the disqualification of a party-list group due to the disqualification of its nominee
is only reasonable if based on material misrepresentations regarding the nominee’s qualifications.
Otherwise, the disqualification of a nominee should not disqualify the party-list group provided that: (1)
it meets Guideline Nos. 1-5 of Ang Bagong Bayani (alternately, on the basis of the new parameters set in
the ponencia, that they validly qualify as national, regional or sectoral party-list group); and (2) one of its
top three (3) nominees remains qualified, for reasons explained below.

The constitutional policy is to enable Filipinos belonging to the marginalized and underrepresented
sectors to contribute legislation that word benefit them. Consistent therewith, R.A. No. 7941 provides
that the State shall develop and guarantee a full, free and open party-list system that would achieve
proportional representation in the House of Representatives by enhancing party-list groups’ "chances to
complete for and win seats in the legislature."24 Because of this policy, I believe that the COMELEC
cannot interpret Section 6 (5) of R.A. No. 7941 as a grant of purely administrative, quasi-legislative or
quasi-judicial power to ipso facto disqualify party-list groups based on the disqualification of a single
nominee.
It should also be pointed out that the law itself considers a violation of election laws as a disqualifying
circumstance. However, for an act or omission to be considered a violation of election laws, it must be
demonstrative of gross and willful disregard of the laws or public policy. The standard cannot be less for
the rules and regulations issued by the COMELEC. Thus, any disqualification of a party-list group based
on the disqualification of its nominee must be based on a material misrepresentation regarding that
nominee’s qualifications. This also finds support in Section 6 (6) of R.A. No. 7941 which considers
declaring "untruthful statements in its petition" as a ground for disqualification.

As regards the second qualification mentioned above, party-list groups should have at least one qualified
nominee among its top three nominees for it to be allowed to participate in the elections. This is
because if all of its top three nominees are disqualified, even if its registration is not cancelled and is
thus allowed to participate in the elections, and should it obtain the required number of votes to win a
seat, it would still have no one to represent it, because the law does not allow the group to replace its
disqualified nominee through substitution. This is a necessary consequence of applying Sections 13 in
relation to Section 8 of R.A. No. 7941.

Section 13 provides that party-list representatives shall be proclaimed by the COMELEC based on "the
list of names submitted by the respective parties x x x according to their ranking in the said list." The
ranking of a party-list group’s nominees is determined by the applicability or the inapplicability of
Section 8, the last paragraph of which reads:

x x x No change of names or alteration of the order of nominees shall be allowed after the names shall
have been submitted to the COMELEC except in cases where the nominee dies, or withdraws in writing
his nomination, becomes incapacitated in which case them name of the substitute nominee shall be
placed last in the list.

Thus, only in case of death, incapacity, or withdrawal does the law allow a party-list group to change the
ranking of its nominees in the list it initially submitted. The ranking of the nominees is changed through
substitution, which according to Section 8 is done by placing the name of the substitute at the end of the
list. In this case, all the names that come after the now vacant slot will move up the list. After
substitution takes effect, the new list with the new ranking will be used by COMELEC to determine who
among the nominees of the party-list group shall be proclaimed, from the first to the last, in accordance
with Section 13.

If any/some of the nominees is/are disqualified, no substitution will be allowed. Thus, their ranking
remains the same and should therefore be respected by the COMELEC in determining the one/s that will
represent the winning party-list group in Congress. This means that if the first nominee is disqualified,
and the party-list group is able to join the elections and becomes entitled to one representative, the
second cannot take the first nominee’s place and represent the party-list group. If, however, the party-list
group gets enough votes to be entitled to two seats, then the second nominee can represent it.

Allowing a party-list group, which has successfully passed Guideline Nos. 1-5 of Ang Bagong Bayani25
(alternately, pursuant to the present holding of the ponencia, that it qualifies as a national, regional or
sectoral party or organization) and has established the qualification of at least one (1) of its top three (3)
nominees, to participate in the elections is a better interpretation of the law. It is fully consistent with
the policy of developing and guaranteering a full, free and open party-list system that would achieve
proportional representation in the House of Representatives by enhancing party-list groups’ "chances to
compete for and win seats in the legislature""26 while providing sufficient disincentives for party-list
groups to flood the COMELEC with nominees as Section 8 of R.A. No. 7941 only requires that they
submit not less than five (5).

It must be noted that this method, together with the seat-allocation system introduce in BANAT v.
COMELEC,27 will allow more party-list groups to be represented in Congress.

Let us use a hypothetical scenario to illustrate.

The table below uses the seat-allocation system introduced in BANAT. It assumes the following facts: (1)
35 party-list groups participated in the elections; (2) 20 million votes were cast for the party-list system;
and (3) there are 50 seats in Congress reserved for the party-list representatives.

The succeeding paragraphs will explain how the BANAT method will operate to distribute the 50 seats
reserved in the House of Representatives given the foregoing facts and the number of votes obtained by
each of the 35 party-list groups.

Rank Party-list group Votes

Garnered % 1st Round

(guaranteed

seats) 2nd Round

(guaranteed

seats) Total #

Of seats
1

AAA 1,466,000 7.33% 1 2 3

BBB 1,228,000 6.41% 1 2 3

CCC 1,040,000 4.74% 1 1 2

DDD 1,020,000 3.89% 1 1 2

EEE 998,000

3.88% 1 1 2

FFF 960,000 3.07% 1 1 2

GGG 942,000 2.92% 1 1 2

8

HHH 926,000 2.65% 1 1 2

III 910,000 2.57% 1 1 2

10

JJJ 796,000 2.57% 1 1 2

11

KKK 750,000 2.42% 1 1 2

12

LLL 738,000 2.35% 1 1 2

13

MMM 718,000 2.32% 1 1 2

14

NNN 698,000 2.13% 1 1 2

15

OOO 678,000 2.12% 1 1 2

16

PPP 658,000 2.06% 1 1 2

17

QQQ 598,000 2.02% 1 1 2

18

RRR 482,000 1.95% 1 2

19

SSS 378,000 1.89% 1 1

20

TTT 318,000 1.54% 1 1

21

UUU 294,000 1.47% 1 1

22
VVV 292,000 1.44% 1 1

23

WWW 290,000 1.43% 1 1

24

XXX 280,000 1.37% 1 1

25

YYY 274,000 1.37% 1 1

26

ZZZ 268,000 1.34% 1 1

27

I-A 256,000 1.24% 1 1

28

I-B 248,000 1.23% 1 1

29
I-C 238,000 1.18% 1 1

30

I-D 222,000 1.11% 1 1

31

I-E 214,000 1.07% 1 1

32

I-F 212,000 1.06%

33

I-G 210,000 1.05%

34

I-H 206,000 1.03%

35

I-I 194,000 1.02%

20,000,000 17 33 50

We explained in BANAT that the first clause of Section 11(b) of R.A. 7941 guarantees a seat to the party-
list groups "receiving at least two percent (2%) of the total votes cast for the party-list system." In our
hypothetical scenario, the party-list groups ranked 1st to 17th received at least 2% of the 20 million votes
cast for the party-list system. In effect, all 17 of them were given guaranteed seats. The distribution of
these so-called guaranteed seats to the "two percents" is what BANAT calls the "first round of seat
allocation."

From the first round of seat allocation, the total number of guaranteed seats allocated to the two
percenters will be subtracted from "20% of the members of the House of Representatives" reserved by
the Constitution for party-list representatives, which in this hypothetical scenario is 50 seats. Assuming
all 17 of the two percenters were able to establish the qualification of their first nominee, the remaining
33 will be distributed in what BANAT termed as the "second round of seat allocation."

These remaining 33 seats are called "additional seats." The rules followed in the distribution/allocation
of these seats are fairly simple. If a party-list group’s percentage is multiplied by the total number of
additional seats and the product is no less than 2, then that party-list will be entitled to 2 additional
seats. This is to keep in line with the 3-seat limit rule. In our hypothetical scenario as shown by the table
above, only the top two party-list groups, AAA and BBB are entitled to 2 additional seats. Assuming,
again, that the 2nd and 3rd nominees of both AAA and BBB are qualified, then only 29 will be left for
distribution.

In distributing the remaining 29 seats, it must be kept in mind that the number of votes cast in favor of
the remaining party-list groups becomes irrelevant. At this stage, the only thing that matters is the
group’s ranking. The party-list group that comes after BBB will be given 1 additional seat and the
distribution of one seat per party-list group, per rank, continues until all 50 seats are accounted for; the
second round of seat allocation stops at this point. In the table above, the 50th seat was awarded to I-E
the party-list group that ranked 31st in the election.

In the foregoing discussion, all the nominees of the party-list groups are qualified. What happens if one
or some of the nominees are disqualified? Following the proposed method, if one two of the party-list
groups with guaranteed seats have a disqualified first nominee, their second nominee, if qualified, can
still represent them in Congress based on the second round of seat allocation.

In the event that some of the nominees of party-list groups—whether or not entitled to guaranteed
seats—are disqualified, then those party-list groups, which without the disqualification of these
nominees would not be entitled to a seat, would now have a higher chance to have a representative
elected in Congress.

If, for example, the first nominee of BBB is disqualified, then it forfeits its guaranteed seat and the
additional seats for distribution in the second round will be increased by 1. With 34 seats to be allocated,
I-E will now qualify to obtain a seat in its favor, assuming that its first nominee is qualified. If I-E’s first
nominee is disqualified, then we will proceed to the party-list next-in-rank, which is I-G. This method is
followed down the line until all 50 seats are allocated.

If we follow the proposed method, this would yield a higher number of party-list groups represented in
Congress, but with fewer representatives per group.

This proposed method can be further illustrated through another example, this time using a "non-two
percenter" party-list group. In the table above, RRR failed to garner at least 2% of the total votes.
However, in the second round of seat allocation, it was granted 1 seat. To be able to send a
representative in Congress, RRR’s first nominee should be qualified to sit. Assuming that its first nominee
was disqualified, its second or third nominee cannot occupy said seat; instead, it will forfeit the seat and
such seat will now go to I-E. Again, this method is followed down the line until all 50 seats are allocated.

In conclusion, I submit that a party-list group should be allowed to participate in the elections despite
the disqualification of some of its nominees, provided that there remains a qualified nominee out of the
top three initially submitted. Not only is this the better policy, but this is also the interpretation
supported by law.

Only nine of the petitions should be Remanded.

Given the circumstances above-mentioned, I respectfully dissent on the remand of all petitions to the
COMELEC for reasons to be discussed below.

The ponencia justifies the remand of all petitions in this wise, viz:

x x x Thus, the present petitions should be remanded to the COMELEC not because COMELEC committed
grave abuse of discretion in disqualifying petitioners, but because petitioners may now possibly qualify
to participate in the coming 13 May 2013 party-list elections under the new parameters prescribed by
this Court. (Emphasis supplied)

The "new parameters" set forth in the ponencia’s guidelines focus mainly on two (2) grounds used by the
COMELEC to cancel registration: (1) the standard of marginalized and underrepresented as applied to
national, regional and sectoral parties and organizations; and (2) the qualification of nominees. From
such examination, we can conclude that, ir relation to the other grounds used by COMELEC to cancel
registration (other than those two grounds mentioned above), the doctrines remain unchanged. Thus, a
remand of those petitions is unnecessary, considering that the acts of the COMELEC pertaining to their
petitions are upheld. The ponencia even admits that COMELEC did not commit grave abuse of discretion
in following prevailing jurisprudence in disqualifying petitioners.

Consequently, the remand should only pertain to those party-list groups whose registration was
cancelled on the basis of applying the standard of "marginalized and underrepresented" and the
qualification of nominees wherein the "new parameters" apply. If other grounds were used by COMELEC
other than those with "new parameters,"—say, for example, failure to prove track record, a remand
would be uncalled for because the doctrine pertaining to the other grounds remain unchanged.

Despite the new doctrine set forth in the ponencia, at the very least, only nine (9) petitions should be
ordered remanded to the COMELEC. In these nine (9) petitions, the COMELEC cancelled the registration
of the party-list groups solely on the ground that their nominees are disqualified. In making such a
pronouncement, the COMELEC merely used as yardstick whether they could qualify as advocates, and
for this reason, I recommend that the following cases be REMANDED to the COMELEC. These are:

Alliance for Rural and Agrarian Reonstruction, Inc. (ARARO)

Agapay ng Indigenous Peoples Rights Alliance, Inc. (A-IPRA)

Aangat Tayo (AT)

A Blessed Party-List (a.k.a. Blessed Federation of Farmers and Fishermen International, Inc.) (A BLESSED)

Action League of Indigenous Masses (ALIM)

Butil Farmers Party (BUTIL)

Adhikain at Kilusan ng Ordinaryong Tao Para sa Lupa, Pabahay, Hanapbuhay at Kaunlaran (AKO BAHAY)

Akbay Kalusugan, Inc. (AKIN)

1-UNITED TRANSPORT KOALISYON (1-UTAK)

Assuming for the sake of argument that we agree with the ponencia’s take that the phrase "marginalized
and underrepresented" qualifies only sectoral parties, still, a remand of all the petitions remain uncalled
for. Out of the 52 petitions, there are only 11 party-list groups which are classified as national or regional
parties.28 Thus, if we were to strictly apply the ponencia’s guidelines, only 20 petitions ought to be
remanded.

The COMELEC did not violate Section 3, Article IX-C of the Constitution.
It bears stressing that COMELEC Resolution No. 9513 does not violate Section 3, Article IX-C of the
Constitution which requires a prior motion for reconsideration before the COMELEC can decide election
cases en banc. To recall, the Resolution allows the COMELEC en banc, without a motion for
reconsideration, to conduct (1) an automatic review of a decision of a COMELEC division granting a
petition for registration of a party-list group or organization; and (2) a summary evidentiary hearing for
those already accredited and which have manifested their intent to participate in the 2013 national and
local elections for the purpose of determining their continuing compliance with the requirements of RA
No. 7941 and the Ang Bagong Bayani29 guidelines.

Section 3 only applies when the COMELEC is exercising its quasi-judicial powers which can be found in
Section 2 (2) of the same article. However, since the conduct of automatic review and summary
evidentiary hearing is an exercise of COMELEC’s administrative powers under Section 2 (5), the prior
motion for reconsideration in Section 3 is not required.

It is in this light that I would like to further elucidate why the power under Section 2 (5) is not quasi-
judicial but administrative in nature in order to help clarify the true distinction between the two. In a
number of cases, this Court has had the opportunity to distinguish quasi-judicial from administrative
power. Thus, in Limkaichong v COMELEC,30 we held that:

The term "administrative" connotes or pertains to "administration, especially management, as by

managing or conducting, directing or superintending, the execution, application, or conduct of persons
of things." It does not entail an opportunity to be heard, the production and weighing of evidence, and a
decision or resolution thereon. This is to be distinguish from "quasi-judicial function", a term which
applies, among others, to the action or discretion of public administrative officers or bodies, who are
required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions
from them, as a basis for their official action and to exercise discretion of a judicial nature. (emphasis
supplied)

However, there are administrative proceedings, such as a preliminary investigation before the public
prosecutor, that also entail the "opportunity to be heard, the production and weighing of evidence, and
a decision or resolution thereon," but are not considered quasi-judicial in the proper sense of the term.
As held in Bautista v CA:31

Petitioner submits that a prosecutor conducting a preliminary investigation performs a quasi-judicial

function, citing Cojuangco v. PCGG, Koh v. Court of Appeals, Andaya v. Provincial Fiscal of Surigao del
Norte and Crespo v. Mogul. In these cases this Court held that the power to conduct preliminary
investigation is quasi-judicial in nature. But this statement holds true only in the sense that, like quasi-
judicial bodies, the prosecutor is an office in the executive department exercising powers akin to those of
a court. Here is where the similarity ends.
A closer security will show that preliminary investigation is very different from other quasi-judicial
proceedings. A quasi-judicial body has been defined as "an organ of government other than a court and
other than a legislature which affects the rights of private parties through either adjudication or rule-
making."

xxxx

On the other hand, the prosecutor in a preliminary investigation does not determine the guilt or
innocence of the accused. He does not exercise adjudication nor rule-making functions. Preliminary
investigation is merely inquisitorial, and is often the only means of discovering the persons who may be
reasonably charged with a crime and to enable the fiscal to prepare his complaint or information. It is
not a trial of the case on the merits and has so purpose except that of determining whether a crime has
been committed and whether there is probable cause to believe that the accused is guilty thereof. While
the fiscal makes that determination, he cannot be said to be acting as a quasi-court, for it is the courts,
ultimately, that pass judgement on the accused, not the fiscal.

Hence, the Office of the Prosecutor is not a quasi-judicial body; necessarily, its decisions approving the
filing of a criminal complaint are not appealable to the Court of Appeals under Rule 43. Since the ORSP
has the power to resolve appeals with finally only where the penalty prescribed for the offense does not
exceed prision correccional, regardless of the imposable fine, the only remedy of petitioner, in the
absence of grave abuse of discretion, is to present her defense in the trial of the case. (emphasis
supplied)

While the exercise of quasi-judicial and administrative power may both involve an opportunity to be
heard, the production and weighing of evidence, and a decision or resolution thereon, the distinction I
believe is that the exercise of the former has for its purpose the adjudication of rights with fianlity.32
This makes it akin to judicial power which has for its purpose, among others, the settlement of actual
controversies involving rights which are legally demandable and enforceable.33

Another way to dispose of the issue of the necessity of a prior motion for reconsideration is to look at it
through the lens of an election case. The phrase "all such election cases" in Section 3 has been read in
relation to Section 2 (2) of Article IX-C, viz:

What is included in the phrase "all such election cases" may be seen in Section 2(2) of Article IX(C) of the
Constitution which states:
Section 2. The Commission on Elections shall exercise the following powers and functions:

xxxx

(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and
qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all
contests involving elective municipal of officials decided by trial courts of general jurisdiction, or
involving elective barangay officials decided by trial courts of limited jurisdiction.34

As to the nature of "contests," the Court has already defined it under the penumbra of election as
follows:

Ordinary usage would characterize a "contest" in reference to a post-election scenario. Election contests
consists of either an election protest or a quo warranto which, although two distinct remedies, would
have one objective in view, i.e., to dislodge the winning candidate from office.

xxxx

The rules categorically speak of the jurisdiction of the tribunal over contests relating to the election,
returns and qualifications of the "President" or "Vice-President", of the Philippines, and not of
"candidates" for President or Vice-President. A quo warranto proceeding is generally defined as being an
action against a person who usurps, intrudes into, or unlawfully holds or exercises a public office. In such
context, the election contest can only contemplate a post-election scenario. In Rule 14, only a registered
candidate who would have received either the second or third the second or third highest number of
votes could file an election protest. This rule again presupposes a post-election scenario.

It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4, paragraph 7, of the
1987 Constitution, would not include cases directly brought before it, questioning the qualifications of a
candidate for the presidency or vice-presidency before the elections are held. (Emphasis supplied)35

In Panlilio v Commission on Elections,36 it was also held that the primary purpose of an election case is
the ascertainment of the real candidate elected by the electorate. Thus, there must first be an election
before there can be an election before there can be an election case. Since the national and local
elections are still to be held on 13 May 2013, the conduct of automatic review and summary evidentiary
hearing under the Resolution No. 9513 cannot be an election case. For this reason, a prior motion for
reconsideration under Section 3 is not required.

In view of the foregoing, I vote to REMAND only the following cases: ARARO, A-IPRA, AT, A BLESSED,
ALIM, BUTIL, AKO BAHAY, AKIN, and 1-UTAK. The Petitioners of all the other Petitioners should be
dismissed.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

1 G.R. No. 83896, 83815, 22 February 1991.

2 Vol. V, R.C.C. No. 106, 12 October 1986.

3 Emphasis supplied.

4 Central Bank Employees Association v. Bangko Sentral ng Pilipinas, G.R. No. 148208, 15 December
2004.

5 VOL V, R.C.C. 106, 12 October 1986.

6 See Chavez v. JBC, G.R. No. 202242, 17 July 2012.

7 CHIEF JUSTICE REYNATO PUNO, EQUAL DIGNITY & RESPECT: THE SUBSTANCE OF EQUAL PROTECTION
AND SOCIAL JUSTICE (2012), 265 [hereinafter, PUNO].

8 TERRY MACDONALD, GLOBAL STAKEHOLDER DEMOCRACY: POWER AND REPRESENTATION BEYOND

LIBERAL STATES (2008), at 166-167.
9 Puno, 265.

10 Id.

11 G.R. No. 147589, 26 June 2001.

12 See Perez-Rosario v. CA, G.R. No. 140796, 30 Jun 2006; BERNAS, PRIMER ON THE 1987 CONSTITUTION
(2006), 488.

13 Volume II, R.C.C., 258-259, 25 July 1986.

14 Eastern Shipping Lines v. POEA, G.R. No. 76633, 18 October 1988.

15 Gandara Mill Supply v. NLRC, G.R. No. 126703, 29 December 1998.

16 Bedol v. COMELEC, G.R. No. 179830, 3 December 2009.

17 Conference of Maritime Manning Agencies v. POEA, G.R. No. 114714, 21 April 1995.

18 Id.

19 G.R. No. 46076, 46077, 12 June 1939.

20 G.R. No. 47065, 26 June 1940.

21 Trade Unions of the Philippines v. Ople, G.R. L-67573, 19 June 1985.

22 Calalang v. Williams, 70 Phil 726 (1940).

23 People v Rosenthal, 68 Phil 328 (1939).

24 Section 2, Republic Act No. 7941.

25 Supra.

26 Section 2, Republic Act No. 7941

27 G.R. Nos. 179271 and 179295, 21 April 2009.

28 The national parties are Alliance for Nationalism and Democracy (ANAD), Bantay Party-List (BANTAY),
and Alliance of Bicolnon Party (ABP). On the other hand, the regional parties are Ako Bicol Political Party
(AKB), Akyson Magsasaka – Partido Tining ng Masa (AKMA-PTM), Ako an Bisaya (AAB), Kalikasan Party-
List (KALIKASAN), 1 Alliance Advocating Autonomy Party (1AAAP), Abyan Ilonggo Party (AI), Partido ng
Bayan and Bida (PBB), and Pilipinas Para sa Pinoy (PPP).

29 G.R. No. 147589, 25 June 2001.

30 G.R. Nos. 178831-32, 179120, 179132-33, 179240-41, 1 April 2009.

31 G.R. No. 143375, 6 July 2001.

32 Dole Philippines v. Esteva, G.R. No. 161115, 30 November 2006.

33 1987 CONSTITUTION, ARTICLE VIII, SECTION 1.

34 Mendoza v. Commission on Elections, G.R. No. 191084, 25 March 2010.

35 Tecson v. Commission on Elections, G.R. No. 161434, 3 March 2004.

36 G.R. No. 181478, 15 July 2009.

The Lawphil Project - Arellano Law Foundation

SEPARATE CONCURRING OPINION

BRION, J.:

I submit this SEPARATE OPINION to reflect my views on the various questions submitted to the Court
through consolidated petitions before us.

For ease of presentation and understanding, this Separate Opinion is laid out under the following
structure:

I. The Case and the Issues

II. Summary of Positions: Substantive Aspect of the Petitions

A. On reliance on Ang Bagong Bayani and its Guidelines.

1. Points of Disagreement with Ang Bagong Bayani

2. Effects on the Components of the Party-list System

B. Nominees

C. On the observation of the Chief Justice

D. Grave abuse of discretion and Conclusion

III. Preliminary Matters

A. The suspension of Rule 64; the existence of jurisdictional error that warrants reviewing COMELEC’s
action

B. COMELEC’s power to register and to cancel registration of a party-list group is an exercise of its
administrative powers

IV. Discussion: Merits of the Consolidated Petitions

A. The Constitutional Provisions on the Party-list System

a. The Constitutional Text.

b. Constitutional text summarized

c. Purpose Behind the Party-list Innovation

B. RA No. 7941, the Party-List System Act

C. Jurisprudential Developments

a. Ang Bagong Bayani

b. Banat
D. The Party-list System of elections under the constitution and RA 7941: Revisiting Ang Bagong Bayani
and its errors

a. The Aim or Objective of the Party-List System

a.1. From the Constitutional Perspective.

a.2. From the statutory perspective

b. Party participation under the party-list system

b.1. Impact on political parties

c. The parties and their nominees

c.1. Refusal or cancellation of registration due to nominee problems

c.2. party nominee relationship

E. Chief Justice Sereno’s Reflections

F. The Eleven-Point Parameters for COMELEC Action

I.A The Cases

The Court resolves fifty-three (53) consolidated petitions for certiorari/prohibition filed under Rule 64 of
the Rules of Court by various party-list groups and organizations. They commonly assail the COMELEC’s
resolutions, either cancelling their existing registrations and accreditations, or denying their new
petitions for party-list registration.
Of the 53 petitions, thirteen (13) were instituted by new party-list applicants under Republic Act (RA) No.
7941 and COMELEC Resolution No. 9366 (dated February 21, 2012). These petitions were denied by the
COMELEC En Banc upon its review of the COMELEC Division’s resolutions.

The other forty (40) petitions were similarly brought by previously registered and accredited party-list
organizations whose registrations/accreditations have been cancelled. These petitioners participated in
previous elections and cannot participate in the May 2013 election if the cancellation of their
registration/accreditation would stand.

The consolidated petitions, uniformly citing grave abuse of discretion on the part of the COMELEC and
the disregard of the relevant provisions of the Constitution and RA No. 7941, variously questioned –

a. the COMELEC En Banc’s authority under COMELEC Resolution No. 9513 to conduct an automatic
review of its Division’s rulings despite the absence of motions for reconsideration, in disregard of Rule 19
of the COMELEC Rules of Procedure;

b. with respect to the cancellation of previous registration/accreditation of party-list groups or

organizations, the denial of due process and the violation of the principle of res adjudicata; further, the
COMELEC’s cancellation of their existing registration/accreditation is claimed to be an exercise of its
quasi-judicial powers that the COMELEC Division, not the COMELEC En Banc, can exercise at the first
instance;

c. the COMELEC En Banc’s appreciation of facts and its application of the guidelines of Ang Bagong
Bayani, which either addressed defects or deficiencies on the part of the parties or of their nominees
and which resulted in the refusal or cancellation of registration/accreditation.

I.B. The Issues

Based on these cited grounds, the issues for the Court’s consideration may be condensed as follows:

1. Whether the COMELEC En Banc may automatically review the decision of the COMELEC Division
without the requisite filing of a motion for reconsideration under the COMELEC Rules of Procedure; and
2. Whether the COMELEC gravely abused its discretion in denying or cancelling the
registration/accreditation of the petitioners, mainly relying on the eight point guidelines laid down by
the Court in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections.

II. SUMMARY OF POSITIONS

THE SUBSTANTIVE ASPECT OF THE PETITIONS

II.A. On reliance on Ang Bagong Bayani and its Guidelines.

Ang Bagong Bayani-OFW Labor Party v. COMELEC’s1 intrinsically flawed interpretation of the relevant
constitutional and statutory provisions is the main source of the present controversy. Its constricted
interpretation of the statutory phrase "marginalized and underrepresented" has invited more questions
than answers that the framers of the 1987 Constitution in fact sought to avoid.

II.A.1. Points of Disagreement with Ang Bagong Bayani.

I take the position that it is time to re-visit this oft-cited ruling before the party-list system is further led
astray.

First, the party-list system came into being, principally driven by the constitutional framers’ intent to
reform the then prevailing electoral system by giving marginal and underrepresented parties (i.e. those
who cannot win in the legislative district elections and in this sense are marginalized and may lack the
constituency to elect themselves there, but who – nationally – may generate votes equivalent to what a
winner in the legislative district election would garner) the chance to participate in the electoral exercise
and to elect themselves to the House of Representatives through a system other than the legislative
district elections.

Ang Bagong Bayani glossed over the constitutional text and made a slanted reading of the intent of the
framers of the Constitution. By these means, it erroneously concluded that the party-list system is
primarily intended as a social justice tool, and was not principally driven by intent to reform electoral
system. Thus, under its First Guideline, Ang Bagong Bayani solely viewed the party-list system from the
prism of social justice, and not from the prism of electoral reform as the framers of the Constitution
originally intended.
Second. In the constitutional deliberations, the proponents of the electoral reform concept were
opposed by those who wanted a party-list system open only to sectoral representation, particularly to
sectoral groups with social justice orientation.

The oppositors were defeated, but the proponents nevertheless opened the system to sectoral
representation and in fact gave the social justice groups a head-start by providing for their
representation through selection in the first three elections.

In the resulting approved wording, the Constitution made a textual commitment to open the party-list
system to registered national, regional and sectoral parties or organizations. The Article on the
Commission on Election also pointedly provided that there shall be a "free and open party system," and
votes for parties, organizations or coalitions shall only be recognized in the party-list system.

II.A.2. Effects on the Components of the Party-list System

Ang Bagong Bayani admits that even political parties may run in the party-list elections but maintains
under its Second Guideline that they must qualify as marginal and underrepresented as this phrase is
understood in the social justice context. This is totally incorrect.

Based on the reasons discussed above and further expounded below, even major political parties can
participate in party-list elections because the party-list system is open to all registered political, national,
regional, sectoral organizations and parties, subject only to the limitations imposed by the Constitution
and by law. Further, both political and sectoral parties have equal roles and participation in the party-list
system; again, they are subject to the same limitations imposed by law (the Constitution and RA No.
7941) and are separately burdened only by the limitations intrinsic to their respective natures. To
summarize:

a) For political parties (whether national or regional): to be classified as political parties, they must
advocate an ideology or platform, principles and policies, for the general conduct of government. The
application of the further requirement under RA No. 7941 (that as the most immediate means of
securing the adoption of their principles of governance, they must regularly nominate and support their
leaders and members as candidates for public office) shall depend on the particular circumstances of the
party.

The marginal and under-representation in the electoral sense (i.e., in the legislative district elections)
and lack of constituency requirements fully apply, but there is no reason not to presume compliance
with these requirements if political parties are not participants in any legislative district elections.
Major political parties, if they participate in the legislative district elections, cannot participate in the
party-list elections, nor can they form a coalition with party-list parties and run as a coalition in the
party-list elections.

A coalition is a formal party participant in the party-list system; what the party-list system forbids directly
(i.e., participation in both electoral arenas), the major political parties cannot do indirectly through a
coalition. No prohibition, however, exists against informal alliances that they can form with party-list
parties, organizations or groups running for the party-list elections. The party-list component of these
informal alliances is not prohibited from running in the party-list elections.

b) For sectoral parties and organizations, they must belong to the sectors enumerated in Section 5(2),
Article VI of the 1987 Constitution and Section 5 of RA No. 7941 that are mainly based on social justice
characteristics; or must have interests, concerns or characteristics specific to their sectors although they
do not require or need to identify with any social justice characteristic. In either case, they are subject to
the "marginalized and under-represented" and the "constituency" requirements of the law through a
showing, supported by evidence, that they belong to a sector that is actually characterized as marginal
and under-represented.

These parties and organizations are additionally subject to the general overriding requirement of
electoral marginalization and under-representation and the constituency requirements of the law, but
there is no reason why compliance with these requirements cannot be presumed if they are not
participants in any legislative district elections.

c) Compliance with COMELEC Rules. To justify their existence, all party-list groups must comply with the
requirements of law, their own internal rules on membership, and with the COMELEC’s Rules of
Procedure. They must submit to the Commission on Elections (COMELEC) their constitution, by-laws,
platform or program of government, list of officers, coalition agreement and other relevant information
as the COMELEC may require.2

To sum up these Ang Bagong Bayani objections, the party-list system – as principally espoused by
Commissioner Christian Monsod and duly approved by the Commission’s vote – maintained its electoral
reform objectives while significantly contributing to the social justice thrust of the Constitution.

It is not correct to say, as the Chief Justice did in her Reflections, that this Separate Opinion is not
"appropriately sensitive to the context from which it [the 1987 Constitution] arose." I recognize the
social justice content of the party-list provisions in the Constitution and the law; I simply cannot give
these provisions the primacy that both the framers of the Constitution and Congress did not see fit to
accord.

B. On Nominees

Third. Considering the Constitution’s solicitous concern for the marginalized and under-represented
sectors as understood in the social justice context, and RA 7941’s requirement of mere bona fide
membership of a nominee in the party-list group, a nominee who does not actually possess the
marginalized and underrepresented status represented by the party-list group but proves to be a
genuine advocate of the interest and concern of the marginalized and underrepresented sector
represented is still qualified to be a nominee.

This classification of nominees, however, is relevant only to sectoral parties and organizations which are
marginalized and underrepresented in the social justice sense or in terms of their special interests,
concerns or characteristics. To be consistent with the sectoral representation envisioned by the framers,
a majority of the members of the party must actually belong to the sector represented, while nominees
must be a member of the sectoral party or organization.

Since political parties are identified by their ideology or platform of government, bona fide membership,
in accordance with the political party’s constitution and by-laws, would suffice.

In both political or sectoral party or group, party membership is the most tangible link of the nominees
to their respective parties and to the party-list system.

Subject to the above, the disqualification of the nominee does not necessarily mean the disqualification
of the party since all the grounds for cancellation or refusal of registration pertain to the party itself.

I make the qualification that the law’s3 requirement of the submission of a list containing at least five
(qualified) nominees is mandatory, and a party’s inexcusable failure to comply with this requirement
warrants the refusal or cancellation of its registration under Section 6 of RA 7941.

C. On the Observations of the Chief Justice

As my fourth and final point, the "textualist" approach that the Chief Justice objects to, has been driven,
and is fully justified, by the above reading of the Constitution and the law.

As a basic constitutional point, the business and principal function of this Court (and of the whole
Judiciary) is not to create policy or to supplant what the Constitution and the law expressly provide. The
framers of the Constitution and Congress (through RA No. 7941 in this case) provided the policy
expressed through the words of the Constitution and the law, and through the intents the framers; both
were considered and cited to ensure that the constitutional policy is properly read and understood. The
whole Judiciary, including this Court, can only apply these policies in the course of their assigned task of
adjudication without adding anything of our own; we can interpret the words only in case of ambiguity.

This Court and its Members cannot likewise act as advocates, even for social justice or for any ideology
for that matter, as advocacy is not the task assigned to us by the Constitution. To play the role of
advocates, or to formulate policies that fall within the role of the Legislative Branch of government,
would be a violation of our sworn duty.

D. Grave Abuse of Discretion and Conclusion

As agreed upon by the Majority during the deliberations of this case, the Court suspended the Rules of
Court in considering the Rule 64 petitions before us in light of the clear and patent violation of the
Constitution that the Majority unanimously found.

Thus, without an explicit ruling on the grave abuse of discretion in this case, I vote to VACATE the ruling
of the COMELEC pursuant to the suspended rules in light of our finding of patent violation of the
Constitution after revisiting and overturning the Ang Bagong Bayani ruling.

Having said these, however, I reflect for the record my view that a grave abuse of discretion exists.

Undeniably, all the parties to these consolidated cases – namely, the petitioners and the COMELEC –
relied upon and were all guided by the Ang Bagong Bayani ruling. However, my re-examination of Ang
Bagong Bayani and its standards, in light of what the text and intents of the Constitution and RA No.
7491 provide, yield a result different from what Ang Bagong Bayani reached.

As will be discussed extensively in this Separate Opinion, wrong considerations were used in ruling on
the consolidated petitions, resulting in gross misinterpretation and misapplication of the Constitution.
This is grave abuse of discretion that taints a decision maker’s action,4 infinitely made worse in this case
because the Constitution itself is involved.

An added basis for a finding of grave abuse of discretion pertains specifically to the COMELEC’s refusal or
cancellation of registration of the party-list group based, solely or partly, on the disqualification of the
nominee. As discussed below, this action and any refusal or cancellation of registration is completely
devoid of basis in fact and in law and in this sense constitutes grave abuse of discretion.

In these lights, I vote for the REMAND of ALL the petitions to the COMELEC in accordance with the terms
of this Separate Opinion.

III. PRELIMINARY MATTERS

A. The existence of jurisdictional error that warrants reviewing COMELEC’s action

Whether acting in the exercise of its purely administrative power, on one hand, or quasi-judicial powers,
on the other hand, the judicial remedy available to an aggrieved party is the remedy of certiorari under
Rule 64, in relation with Rule 65. Court action under this rule is rendered necessary by the reality that,
by law, the COMELEC en banc decision is final and executory and should stand unless nullified by this
Court through a writ of certiorari.

For the writ of certiorari to issue, the Rules of Court expressly require that the tribunal must have acted
without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction. The requisite grave abuse of discretion is in keeping with the office of the writ of certiorari;
its function is to keep the tribunal within the bounds of its jurisdiction under the Constitution and law.

The term grave abuse of discretion, while it defies exact definition, generally refers to capricious or
whimsical exercise of judgment that is equivalent to lack of jurisdiction; the abuse of discretion must be
patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary
and despotic manner by reason of passion and hostility.5

Arguably under the above standards, it may be claimed that since the COMELEC merely complied with
the prevailing jurisprudence (in particular. with the Court’s pronouncement in Ang Bagong Bayani v.
COMELEC and Banat v. COMELEC), then it could not have acted without or in excess of its jurisdiction,
much less with grave abuse of discretion. Besides, the writ of certiorari only lies when the respondent is
exercising judicial or quasi-judicial functions, which is not so in the present case.

This rationalization, however, is only superficially sound as the gross misinterpretation and
misapplication of the Constitution cannot be allowed by this Court in its role and duty as guardian of the
Constitution. Where a misinterpretation or misapplication of the Constitution occurs, the result is a
constitutional violation that this Court cannot be prevented from addressing through the exercise of its
powers through the available medium of review under the Rules of Court. To hold otherwise is to
countenance a violation of the Constitution – a lapse that cannot and should not happen under our legal
system.

Otherwise stated, if the Court were to sustain the view that the mere application of a prevailing rule or
doctrine negates a finding of grave abuse of discretion, in spite of a glaring error in the doctrine’s
interpretation of the Constitution, then the Court would have no chance to correct the error, except by
laying down a new doctrine that would operate prospectively but at the same time dismissing the
petition for failure to show grave abuse of discretion. To be sure, this is a course of action the Court
cannot take if it were to faithfully discharge its solemn duty to hold the Constitution inviolate. For the
Court, action under these circumstances is a must; no ifs or buts can be allowed to be heard about its
right and duty to act.

It should be considered, too, that in the adjudication of a case with constitutional dimensions, it is the
letter and the spirit of the Constitution itself that reign supreme. The Court’s previous ruling on a matter
serves as a guide in the resolution of a similar matter in the future, but this prior ruling cannot inflexibly
bind the Court in its future actions. As the highest Court in our judicial hierarchy, the Court cannot tie its
hands through its past actions, particularly when the Constitution is involved; it is invested with the
innate authority to rule according to what it sees best in its role as guardian of the Constitution.6

Additionally, be it remembered that the rulings of this Court are not written in stone and do not remain
un-erased and applicable for all times under all circumstances. The Supreme Court's review of its rulings
is in a sense a continuing one as these are made and refined in the cases before the Court, taking into
account what it has said on the similar points in the past. This is the principle of stare decisis that fosters
the stability of rulings and decisions. This principle, however, is not an absolute one that applies even if
an incisive examination shows that a past ruling is inaccurate and is far from a faithful interpretation of
the Constitution, or in fact involves a constitutional violation. In this excluded circumstance, both the
rule of reason and the commands of the Constitution itself require that the past ruling be modified and,
if need be, overturned.7 Indeed, if the act done is contrary to the Constitution, then the existence of
grave abuse of discretion cannot be doubted.8
As will be discussed extensively in this Separate Opinion, the Ang Bagong Bayani ruling does not rest on
firm constitutional and legal grounds; its slanted reading of the text of the constitution and its myopic
view of constitutional intent led it to a grave error never envisioned by the framers of our constitution.

By ordering the remand of all the petitions to the COMELEC and for the latter to act in accordance with
the new ruling laid down by the Court – i.e., allowing political parties to participate in the party-list
elections without need of proving that they are "marginalized and under-represented" (as this term is
understood in Ang Bagong Bayani), and in recognizing that a genuine advocate of a sectoral party or
organization may be validly included in the list of nominees – the Court would not be violating the
principle of prospectivity.9

The rationale behind the principle of prospectivity – both in the application of law and of judicial
decisions enunciating new doctrines – is the protection of vested rights and the obligation of contracts.
When a new ruling overrules a prior ruling, the prospective application of the new ruling is made in favor
of parties who have relied in good faith on the prior ruling under the familiar rule of lex prospicit, non
respicit.

Obviously, the force of this rationale finds no application in this case, for, a ruling overturning Ang
Bagong Bayani broadens the base of participation in the party-list system of election based on the text
and intent of the Constitution. Thus, no one can claim that the application of this ruling in the upcoming
2013 election would operate to the prejudice of parties who relied on the Ang Bagong Bayani ruling; the
marginalized and under-represented sectors (as the term in understood in Ang Bagong Bayani) continue
to be eligible to participate in the party-list elections, subject to the determination of parties’ individual
circumstances by the COMELEC.

B. COMELEC power to register and to cancel registration of a party-list group is an exercise of its
administrative powers

The COMELEC En Banc’s authority under COMELEC Resolution No. 9513 – i.e., to conduct summary
hearings for the purpose of determining the registered parties’ continuing compliance with the law and
the regulations and to review the COMELEC Division’s ruling granting a petition for registration – is
appropriately an exercise of the COMELEC’s administrative power rather than its quasi-judicial power. In
the exercise of this authority, the COMELEC may automatically review the decision of its Divisions,
without need for a motion to reconsider the grant of a petition for registration; it may also conduct
summary hearings when previously registered party-list groups file their manifestation of intent to
participate in the coming elections.
The case of Santiago, Jr., etc. v. Bautista, et al.10 already provides us ample guidance and insights into
what distinguishes administrative and quasi-judicial powers from one another. On the issue of whether
the remedy of certiorari (which can only be invoked when the respondent exercises judicial or quasi-
judicial functions) would lie against a public school committee whose function was to determine the
ranking of selected honor students for its graduating class, the Court gave a negative answer and said:

From the foregoing, it will be gleaned that before a tribunal, board, or officer may exercise judicial or
quasi judicial acts, it is necessary that there be a law that gives rise to some specific rights of persons or
property under which adverse claims to such rights are made, and the controversy ensuing therefrom is
brought, in turn, before the tribunal, board or officer clothed with power and authority to determine
what that law is and thereupon adjudicate the respective rights of the contending parties. As pointed out
by appellees, however, there is nothing on record about any rule of law that provides that when teachers
sit down to assess the individual merits of their pupils for purposes of rating them for honors, such
function involves the determination of what the law is and that they are therefore automatically vested
with judicial or quasi judicial functions.11 (citation omitted; emphases ours)

In the present case, no pretense at all is claimed or made that a petition for registration or the
determination of a registered party’s continuing compliance with existing laws, rules and jurisprudence
entails the assertion of a right or the presence of a conflict of rights. In a registration or compliance
proceeding, an applicant simply attempts to prove its possession or continued possession of the
requisite qualifications for the purpose of availing the privilege of participating in an electoral exercise.
Thus, no real adjudication entailing the exercise of quasi-judicial powers actually takes place.

Additionally, the inapplicability of the principle of res judicata in these registration proceedings
necessarily weakens any claim that adjudication, done in the exercise of quasi-judicial functions, is
involved. Each election period is sui generis - a class in itself, and any registration or accreditation by a
party-list group is only for the purpose of the coming election; it does not grant any registered party-list
group any mantle of immunity from the COMELEC’s power of review as an incident of its power to
register. To hold otherwise would emasculate the COMELEC as an independent constitutional
commission, and weaken the crucial role it plays in our republican democracy.

IV. DISCUSSION: MERITS OF THE PETITIONS

I take the firm position that this Court should now revisit its ruling in Ang Bagong Bayani before our
party-list system drifts any farther from the text and spirit of the constitutional and statutory commands.

These Discussions shall dwell on the reasons supporting this approach and my conclusions.
A. The Constitutional Provisions on the Party-list System

a. The Constitutional Text.

The only constitutional provisions directly dealing with the party-list system of election are Section 5(1)
and (2) of Article VI, and Sections 2, 6 and 7, Article IX-C of the 1987 Constitution. The cited Article VI
section reads:

Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty
members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their
respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided
by law, shall be elected through a party-list system of registered national, regional, and sectoral parties
or organizations.

(2) The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party list. For three consecutive terms after the ratification of
this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided
by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities,
women, youth, and such other sectors as may be provided by law, except the religious sector. [emphasis,
underscores and italics ours]

Article IX-C of the 1987 Constitution, on the other hand, is the article on the COMELEC, and the cited
sections quoted below are its provisions related to the party-list system.

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

xxxx

(5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to
other requirements, must present their platform or program of government; and accredit citizens' arms
of the Commission on Elections. x x x
xxxx

Section 6. A free and open party system shall be allowed to evolve according to the free choice of the
people, subject to the provisions of this Article.

Section 7. No votes cast in favor of a political party, organization, or coalition shall be valid, except for
those registered under the party-list system as provided in this Constitution. [emphases and italics ours]

These provisions are specifically mentioned and shall be cited throughout this Separate Opinion as they
are the essential take-off points in considering, appreciating and implementing the party-list system.

b. The Constitutional Text Summarized

Paraphrased and summarized, the terms of the Constitution relating to the party-list system essentially
provide that:

1. The House of Representatives shall be composed of members elected from legislative districts, and
those who are elected through a party-list system.

2. The members of the House of Representatives under the party-list system are those who are elected,
as provided by law, thus, plainly leaving the mechanics of the system to future legislation.

3. The members under the system shall be elected through registered national, regional, sectoral parties
and organizations, thus, textually identifying the recognized component groupings in the party-list
system; they must all register with the COMELEC to be able to participate.

4. To be voted under the party-list system are the component political parties, organizations and
coalitions, in contrast with the individual candidates voted upon in legislative district elections.

5. The party-list representatives shall constitute twenty per centum of the total number of
representatives, including those in the party-list.
6. For three consecutive terms after the ratification of the Constitution, one-half of the seats allocated to
party-list representatives shall be filled as provided by law, by selection or election from the labor,
peasant, urban poor, indigenous cultural minorities, women, youth, and such other sectors as may be
provided by law, except the religious sector.

7. The Constitution allows a free and open party system that shall evolve according to the free choice of
the people, within the limits of the Constitution.

c. Purpose Behind the Party-list Innovation

Unmistakably, the quoted constitutional texts are both terse and general in their terms. However, they
are not, in fact, as bare as they would seem, as the words used carry meanings and intents12 expressed
during the deliberations and the voting that took place to determine what the Constitution would
exactly provide.13

Basic in understanding the constitutional text is the intent that led to the modification of the system of
legislative district elections that the country has used even before the 1935 Constitution.

The traditional system, incidentally, is the legislative district system that remains described in the
Constitution as election by district "apportioned among the provinces, cities and the Metropolitan
Manila area in accordance with the number of their respective inhabitants and on the basis of a uniform
and progressive ratio."14

The proponent, Commissioner Christian Monsod, described the new party-list system in terms of its
purpose, as follows:15

The purpose of this is to open the system. In the past elections, we found out that there were certain
groups or parties that, if we count their votes nationwide, have about 1,000,000 or 1,500,000 votes. But
they were always third place or fourth place in each of the districts. So, they have no voice in the
Assembly. But this way, they would have five or six representatives in the Assembly even if they would
not win individually in legislative districts. So, that is essentially the mechanics, the purpose and
objectives of the party list system. [italics, emphases and underscores ours]

These same purpose and objective were reiterated in the Commissioner’s subsequent statement when
he said – The whole purpose of the system is precisely to give room for those who have a national
constituency who may never be able to win a seat on a legislative district basis. But they must have a
constituency of at least 400,000 in order to claim a voice in the National Assembly.16 thus, leaving no
doubt on what the party-list system conceptually is and why it was established.

B. RA No. 7941, the Party-List System Act

Following the ratification of the 1987 Constitution, President Corazon Aquino appointed representatives
of the sectors mentioned in the Constitution, namely: labor, peasant, urban poor, indigenous cultural
minorities, women, and youth, who acted as the party-list representatives for the first three (3) elections
under this Constitution.

In March 1995, Congress enacted RA No. 7941, the Party-List System Act, as the law that would
implement the party-list election scheduled for May 1998. The law at the same time fleshed out the
mechanics for party-list elections, in accordance with the terms of the Constitution. The law specifically
provided for:

a. a declaration of the policy behind the law;

b. a definition of terms, specifically defining the terms national, political, regional, and sectoral parties,
and their coalitions;

c. the requisites and terms for registration; the grounds for refusal and cancellation of registration; and
the certified list of registered parties;

d. the nomination and qualification for party-list representatives;

e. the manner of voting;

f. the number and procedure for the allocation of party-list representatives; and

g. the proclamation of the winning party-list representatives, their term of office; the limitation on their
change of affiliation; their rights; and the provisions in case of vacancy.
Reflecting the constitutional intents, the law defined the party-list system as:

a mechanism of proportional representation in the election of representatives to the House of

Representatives from national, regional and sectoral parties or organizations or coalitions thereof
registered with the Commission on Elections (COMELEC). Component parties or organizations of a
coalition may participate independently provided the coalition of which they form part does not
participate in the party-list system.17 (emphases and italics ours) and clarified the State’s policy,
objectives and means, as follows:

a. the promotion of proportional representation in the election of representatives to the House of

Representatives through a party-list system of registered national, regional and sectoral parties or
organizations or coalitions thereof;

b. with the aim of enabling Filipino citizens belonging to marginalized and underrepresented sectors,
organizations and parties, and who lack well-defined political constituencies but who could contribute to
the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to
become members of the House of Representatives; and

c. for the development and guarantee of a full, free and open party system in order to attain the
broadest possible representation of party, sectoral or group interests in the House of Representatives by
enhancing their chances to compete for and win seats in the legislature under the simplest scheme
possible.18

RA No. 7941 likewise succinctly defined the component groupings recognized by law in the party-list
system, as follows:

(b) A party means either a political party or a sectoral party or a coalition of parties.

(c) A political party refers to an organized group of citizens advocating an ideology or platform, principles
and policies for the general conduct of government and which, as the most immediate means of
securing their adoption, regularly nominates and supports certain of its leaders and members as
candidates for public office.
It is a national party when its constituency is spread over the geographical territory of at least a majority
of the regions. It is a regional party when its constituency is spread over the geographical territory of at
least a majority of the cities and provinces comprising the region.

(d) A sectoral party refers to an organized group of citizens belonging to any of the sectors enumerated
labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women,
youth, veterans, overseas workers, and professionals whose principal advocacy pertains to the special
interest and concerns of their sector.

(e) A sectoral organization refers to a group of citizens or a coalition of groups of citizens who share
similar physical attributes or characteristics, employment, interests or concerns.

(f) A coalition refers to an aggrupation of duly registered national, regional, sectoral parties or
organizations for political and/or election purposes.19 (emphases and italics ours)

Notably, the definitions carried no significant qualifications, preferences, exclusions or limitations by law
on what the recognized party-list groupings should be, although Section 6 of RA No. 7941 specified and
defined the grounds for disqualification.

C. Jurisprudential Developments

a. The Ang Bagong Bayani Case

In 2001, the first judicial test in the implementation of the party-list system came through the Ang
Bagong Bayani case where the petitioners sought the disqualification of the private respondents, among
whom were major political parties. The Court resolved, among others, the following issues:

1. whether political parties may participate in party-list elections; and

2. whether the party-list system is exclusive to "marginalized and underrepresented" sectors and
organizations.
The majority ruling held that political parties may participate in party-list elections, provided that the
requisite character of these parties or organizations must be consistent with the Constitution and RA No.
7941. The party-list organization or party must factually and truly represent the marginalized and
underrepresented constituencies, identifying them, non-exclusively, as the labor, peasant, fisherfolk,
urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas
workers, and professionals. The party-list nominees, as well, must be Filipino citizens belonging to
marginalized and underrepresented sectors, organizations and parties.

Based on its conclusions, the majority provided the guidelines for the party-list system, summarized
below:

First, the political party, sector, organization or coalition must represent the marginalized and
underrepresented groups identified in Section 5 of RA 7941. In other words, it must show – through its
constitution, articles of incorporation, bylaws, history, platform of government and track record – that it
represents and seeks to uplift marginalized and underrepresented sectors. Verily, majority of its
membership should belong to the marginalized and underrepresented. And it must demonstrate that in
a conflict of interests, it has chosen or is likely to choose the interest of such sectors.

Second, while even major political parties are expressly allowed by RA 7941 and the Constitution to
participate in the party-list system, they must comply with the declared statutory policy of enabling
"Filipino citizens belonging to marginalized and underrepresented sectors x x x to be elected to the
House of Representatives." In other words, while they are not disqualified merely on the ground that
they are political parties, they must show, however, that they represent the interests of the marginalized
and underrepresented. x x x

xxxx

Third, by an express constitutional provision, the religious sector may not be represented in the party-list
system. x x x

xxxx

Fourth, a party or an organization must not be disqualified under Section 6 of RA 7941, which
enumerates the grounds for disqualification.
xxxx

Fifth, the party or organization must not be an adjunct of, or a project organized or an entity funded or
assisted by, the government. By the very nature of the party-list system, the party or organization must
be a group of citizens, organized by citizens and operated by citizens. It must be independent of the
government. x x x

Sixth, the party must not only comply with the requirements of the law; its nominees must likewise do
so. Section 9 of RA 7941 contains the qualifications of party-list nominees, with special age-related terms
for youth sector candidates.

Seventh, not only the candidate party or organization must represent marginalized and
underrepresented sectors; so also must its nominees. x x x Under Section 2 of RA 7941, the nominees
must be Filipino citizens "who belong to marginalized and underrepresented sectors, organizations and
parties." x x x

Eighth, x x x the nominee must likewise be able to contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a whole.20 (italics and emphases ours)

b. BANAT Case

Barangay Association for National Advancement and Transparency (BANAT) v. Commission on

Elections21 is essentially a case on the computation of the allocation of seats based on the party-list
votes. Despite the Ang Bagong Bayani ruling, the question of whether the Constitution prohibits political
parties from participating in the party-list elections remained a live issue in this case.

By a vote of 8-7, the Court decided to disallow major political parties from participating in the party-list
elections, directly or indirectly; thus, effectively reversing the ruling in Ang Bagong Bayani that major
political parties may participate in the party-list system, provided they represent the marginalized and
underrepresented sectors. Chief Justice Reynato S. Puno cited two reasons for disallowing the
participation of major political parties:

1. Limiting the party-list system to the marginalized and excluding the major political parties from
participating in the election of their representatives are aligned with the constitutional mandate to
reduce social, economic and political inequalities and remove cultural inequalities by equitably diffusing
wealth and political power for the common good.

2. Allowing major political parties to participate in the party-list system electoral process will suffocate
the voice of the marginalized, frustrate their sovereignty, and betray the democratic spirit of the
Constitution.

The minority view22 took the position that neither the Constitution nor RA No. 7941 prohibits major
political parties from participating in the party-list system. It maintained that, on the contrary, the
framers of the Constitution clearly intended the major political parties to participate in party-list
elections through their sectoral wings, and this Court cannot engage in socio-political engineering and
judicially legislate the exclusion of major political parties from party-list elections, in patent violation of
the Constitution and the law.

Moreover, the minority maintained that the Party-List System Act and the deliberations of the
Constitutional Commission state that major political parties are allowed to coalesce with sectoral
organizations for electoral or political purposes. The other major political parties can thus organize or
affiliate with their chosen sector or sectors, provided that their nominees belong to their respective
sectors. Nor is it necessary that the party-list organization’s nominee "wallow in poverty, destitution, and
infirmity," as there is no financial status or educational requirement in the law. It is enough that the
nominee of the sectoral party belongs to the marginalized and underrepresented sectors; that is, if the
nominee represents the fisherfolk, he must be a fisherfolk, if the nominee represents the senior citizens,
he must be a senior citizen.

D. The Party-list System of elections under the constitution and RA 7941: Revisiting Ang Bagong Bayani
and its errors

I opened these Discussions by quoting the plain terms of the Constitution and of the law to stress these
terms for later comparison with Ang Bagong Bayani. In this manner, Ang Bagong Bayani’s slanted reading
of the Constitution and the laws can be seen in bold relief. Its main mistake is its erroneous reading of
the constitutional intent, based on the statements of a constitutional commissioner that were quoted
out of context, to justify its reading of the constitutional intent.23 Specifically, it relied on the statements
of Commissioner Villacorta, an advocate of sectoral representation, and glossed over those of
Commissioner Monsod and the results of the deliberations, as reflected in the resulting words of the
Constitution.24 Thus, its conclusion is not truly reflective of the intent of the framers of the Constitution.
This error is fatal as its conclusion was then used to justify his interpretation of the statute, leading to a
bias for the social justice view.
a. The Aim or Objective of the Party-List System

a.1. From the Constitutional Perspective.

The aim of the party-list provision, Section 5, Article VI of the Constitution, is principally to reform the
then existing electoral system by adding a new system of electing the members of the House of
Representatives. The innovation is a party-list system that would expand opportunities for electoral
participation to allow those who could not win in the legislative district elections a fair chance to enter
the House of Representatives other than through the district election system.

Otherwise stated, the aim is primarily electoral reform - not to provide a social justice mechanism that
would guarantee that sectors (described in social justice context by its constitutional deliberation
proponents as "marginalized") would exclusively occupy, or have reserved, seats in the House of
Representatives under the party-list system. This is one glaring error that is evident right from the
opening statement of Ang Bagong Bayani when it described the party-list system as "a social justice
tool." While the party-list system can indeed serve the ends of social justice by providing the opportunity
– through an open, multi-party system – for the social justice sector groups that have no chance to win in
legislative district elections, the party-list system was not established primarily for this purpose.

The best proof of this characteristic comes from the words of the Constitution itself which do not
provide for exclusive or guaranteed representation for sectoral groups in the party-list system. If at all,
the constitutional text only provided a guarantee of 50% participation for specified sectoral groups, but
the guarantee was only for the first three (3) elections after the ratification of the Constitution.25

The deliberations where the words of the Constitution were framed and adopted confirm the primacy of
electoral reform as against social justice objectives. The electoral reform view was espoused by the
author of the provision, Commissioner Monsod, and his proposed amendment26 met vigorous
objections from Commissioner Eulogio Lerum and Commissioner Jaime Tadeo, who then sought to have
guaranteed or reserved seats for the "marginalized" sectors in order to prevent their "political massacre"
should the Monsod amendment be allowed.27

When voting took place, those against reserved seats for the marginalized sector won. Eventually, what
was conceded to the latter was what the Constitution, as worded now, provides - i.e., "For three
consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list
representatives shall be filled, as provided by law, by selection or election from" the enumerated sectors.
Indeed, if the concept of "marginalized" would be applied to the party-list system, the term should apply
to the national, regional, and sectoral parties or organizations that cannot win in the traditional
legislative district elections (following the explanation of Commissioner Monsod), not necessarily to
those claiming marginalization in the social justice context or because of their special interests or
characteristics. The term, of course, can very well be applicable to the latter if they indeed cannot win on
their own in the traditional legislative district elections. These aspects of the case are further discussed
and explained below.

a.2. From the Statutory Perspective.

Even from the perspective of RA No. 7941, the policy behind the party-list system innovation does not
vary or depart from the basic constitutional intents. The objective continues to be electoral reform,
expressed as the promotion of proportional representation in the election of representatives to the
House of Representatives through a party-list system of registered national, regional and sectoral parties
or organizations or coalitions, under a full, free and open party system in order to attain the broadest
possible representation of party, sectoral or group interests in the House of Representatives.28

It should be noted that it was under RA No. 7941 that the words "marginalized and underrepresented"
made their formal appearance in the party-list system. It was used in the context of defining one of the
aims of the system, i.e., to enable Filipino citizens belonging to marginalized and underrepresented
sectors, organizations and parties, and who lack well-defined political constituencies but who could
contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a
whole, to become members of the House of Representatives.

This entry and use of the term is admittedly an effective and formal statutory recognition that
accommodates the sectoral (in the special interest or concern or social justice senses) character into the
party-list system (i.e., in addition to the primary electoral reform purpose contemplated in the
Constitution), but nevertheless does not render sectoral groups the exclusive participants in party-list
elections. As already mentioned, this conclusion is not justified by the wording, aims and intents of the
party-list system as established by the Constitution and under RA No. 9741.

Nor does the use of the term "marginalized and underrepresented" (understood in the narrow sectoral
context) render it an absolute requirement to qualify a party, group or organization for participation in
the party-list election, except for those in the sectoral groups or parties who by the nature of their
parties or organizations necessarily are subject to this requirement. For all parties, sectors, organizations
or coalition, however, the absolute overriding requirement – as justified by the principal aim of the
system – remains to be a party, group or organization’s inability to participate in the legislative district
elections with a fair chance of winning. To clearly express the logical implication of this statement, a
party, group or organization already participating in the legislative district elections is presumed to have
assessed for itself a fair chance of winning and should no longer qualify to be a participant in the party-
list elections.

b. Party Participation under the Party-list System

The members of the House of Representatives under the party-list system are those who would be
elected, as provided by law, thus, plainly leaving the mechanics of the system to future legislation. They
are likewise constitutionally identified as the registered national, regional, sectoral parties and
organizations, and are the party-list groupings to be voted under the party-list system under a free and
open party system that should be allowed to evolve according to the free choice of the people within the
limits of the Constitution.29

From the perspective of the law, this party structure and system would hopefully foster proportional
representation that would lead to the election to the House of Representatives of Filipino citizens: (1)
who belong to marginalized and underrepresented sectors, organizations and parties; and (2) who lack
well-defined constituencies; but (3) who could contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a whole. The key words in this policy are
"proportional representation," "marginalized and underrepresented," and "lack of well-defined
constituencies."

The term "marginalized and underrepresented" has been partly discussed above and would merit
further discussion below. Ang Bagong Bayani-OFW Labor Party v. COMELEC,30 on the other hand,
defined the term "proportional representation" in this manner:

It refers to the representation of the "marginalized and underrepresented" as exemplified by the

enumeration in Section 5 of the law; namely, "labor, peasant, fisherfolk, urban poor, indigenous cultural,
communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals.31

As well, the case defined the phrase "who lack well-defined political constituency" to mean:refers to the
absence of a traditionally identifiable electoral group, like voters of a congressional district or territorial
unit of government. Rather, it points again to those with disparate interests identified with the
"marginalized or underrepresented.32

Thus, in both instances, Ang Bagong Bayani harked back to the term "marginalized and
underrepresented," clearly showing how, in its view, the party-list system is bound to this descriptive
term. As discussed above, Ang Bagong Bayani’s use of the term is not exactly correct on the basis of the
primary aim of the party-list system. This error becomes more glaring as the case applies it to the
phrases "proportional representation" and "lack of political constituency."

For clarity, Section 2 – the only provision where the term "marginalized and underrepresented" appears
– reads in full:

Section 2. Declaration of Policy. – The State shall promote proportional representation in the election of
representatives to the House of Representatives through a party-list system of registered national,
regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens
belonging to the marginalized and under-represented sectors, organizations and parties, and who lack
well-defined political constituencies but who could contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a whole, to become members of the House of
Representatives. Towards this end, the State shall develop and guarantee a full, free and open party
system in order to attain the broadest possible representation of party, sectoral or group interests in the
House of Representatives by enhancing their chances to compete for and win seats in the legislature,
and shall provide the simplest scheme possible.

As defined in the law, a party refers to any of the three: a political party, a sectoral party, or a coalition of
parties (Section 3[b] of RA No. 7941). As distinguished from sectoral parties or organizations – which
generally advocate "interests or concerns" – a political party is one which advocates "an ideology or
platform, principles and policies" of the government. In short, its identification is with or through its
program of governance.

Under the verba legis or plain terms rule of statutory interpretation33 and the maxim ut magis valeat
quam pereat,34 a combined reading of Section 2 and Section 3 shows that the status of being
"marginalized and underrepresented" is not limited merely to sectors, particularly to those enumerated
in Section 5 of the law. The law itself recognizes that the same status can apply as well to "political
parties."

Again, the explanation of Commissioner Monsod on the principal objective of the party-list system
comes to mind as it provides a ready and very useful answer dealing with the relationship and inter-
action between sectoral representation and the party-list system as a whole:

We sought to avoid these problems by presenting a party list system. Under the party list system, there
are no reserved seats for sectors. Let us say, laborers and farmers can form a sectoral party or a sectoral
organization that will then register and present candidates of their party. How do the mechanics go?
Essentially, under the party list system, every voter has two votes, so there is no discrimination. First, he
will vote for the representative of his legislative district. That is one vote. In that same ballot, he will be
asked: What party or organization or coalition do you wish to be represented in the Assembly? And here
will be attached a list of the parties, organizations or coalitions that have been registered with the
COMELEC and are entitled to be put in that list. This can be a regional party, a sectoral party, a national
party, UNIDO, Magsasaka or a regional party in Mindanao. One need not be a farmer to say that he
wants the farmers' party to be represented in the Assembly. Any citizen can vote for any party. At the
end of the day, the COMELEC will then tabulate the votes that had been garnered by each party or each
organization — one does not have to be a political party and register in order to participate as a party —
and count the votes and from there derive the percentage of the votes that had been cast in favor of a
party, organization or coalition.

xxxx

It means that any group or party who has a constituency of, say, 500,000 nationwide gets a seat in the
National Assembly. What is the justification for that? When we allocate legislative districts, we are saying
that any district that has 200,000 votes gets a seat. There is no reason why a group that has a national
constituency, even if it is a sectoral or special interest group, should not have a voice in the National
Assembly. It also means that, let us say, there are three or four labor groups, they all register as a party
or as a group. If each of them gets only one percent or five of them get one percent, they are not
entitled to any representative. So, they will begin to think that if they really have a common interest,
they should band together, form a coalition and get five percent of the vote and, therefore, have two
seats in the Assembly. Those are the dynamics of a party list system.

We feel that this approach gets around the mechanics of sectoral representation while at the same time
making sure that those who really have a national constituency or sectoral constituency will get a chance
to have a seat in the National Assembly. These sectors or these groups may not have the constituency to
win a seat on a legislative district basis. They may not be able to win a seat on a district basis but surely,
they will have votes on a nationwide basis.

xxxx

BISHOP BACANI: Madam President, am I right in interpreting that when we speak now of party list
system though we refer to sectors, we would be referring to sectoral party list rather than sectors and
party list?

MR. MONSOD: As a matter of fact, if this body accepts the party list system, we do not even have to
mention sectors because the sectors would be included in the party list system. They can be sectoral
parties within the party list system.
BISHOP BACANI: Thank you very much.35 (emphases and underscores supplied)

These exchanges took place on July 22, 1986. When the discussion on the party-list system of election
resumed on July 25, 1986, Commissioner Monsod proposed an amendment36 (that substantially
became Section 5[1], Article VI of 1987 Constitution) that further clarified what this innovative system is.

Thus, the words "marginalized" and "underrepresented" should be understood in the electoral sense,37
i.e., those who cannot win in the traditional district elections and who, while they may have a national
presence, lacked "well-defined political constituency" within a district sufficient for them to win. For
emphasis, sectoral representation of those perceived in the narrow sectoral (including social justice)
sense as "marginalized" in society is encapsulated within the broader multiparty (party-list system)
envisioned by the framers.

This broader multiparty (party-list system) seeks to address not only the concerns of the marginalized
sector (in the narrow sectoral sense) but also the concerns of those "underrepresented" (in the
legislative district) as a result of the winner-take-all system prevailing in district elections – a system that
ineluctably "disenfranchises" those groups or mass of people who voted for the second, third or fourth
placer in the district elections and even those who are passive holders of Filipino citizenship.

RA No. 7941 itself amply supports this idea of "underrepresented" when it used a broad qualitative
requirement in defining "political parties" as ideology or policy-based groups and, "sectoral parties" as
those whose principal advocacy pertains to the special interest and concerns of identified sectors.

Based on these considerations, it becomes vividly clear that – contrary once again to what Ang Bagong
Bayani holds – proportional representation refers to the representation of different political parties,
sectoral parties and organizations in the House of Representatives in proportion to the number of their
national constituency or voters, consistent with the constitutional policy to allow an "open and free
party system" to evolve.

In this regard, the second sentence of Section 2 of RA No. 7941 is itself notably anchored on the "open
and free party system" mandated by Article IX-C of the Constitution. For some reason, Ang Bagong
Bayani never noted this part of Section 2 and its significance, and is utterly silent as well on the
constitutional anchor provided by Section 6, Article IX-C of the Constitution. It appears to have simply
and conveniently focused on the first sentence of the Section and its constricted view of the term
"marginalized and underrepresented," while wholly fixated on a social justice orientation. Thus, it
opened its ruling, as follows:
The party-list system is a social justice tool designed not only to give more law to the great masses of our
people who have less in life, but also to enable them to become veritable lawmakers themselves,
empowered to participate directly in the enactment of laws designed to benefit them. It intends to make
the marginalized and the underrepresented not merely passive recipients of the State's benevolence,
but active participants in the mainstream of representative democracy.38 (emphasis supplied)

Reliance on the concept of social justice, to be sure, involves a motherhood statement that offers little
opportunity for error, yet relying on the concept solely and exclusively can be misleading. To begin with,
the creation of an avenue by which "sectoral parties or organizations" can meaningfully join an electoral
exercise is, in and by itself, a social justice mechanism but it served other purposes that the framers of
the Constitution were addressing. Looking back, the appeal to the social justice concept to make the
party-list elections an exclusive affair of the "marginalized and underrepresented sector" (as defined in
Ang Bagong Bayani) proceeds from the premise that a multiparty-system is antithetical to sectoral
representation. This was effectively the argument of the proponents of the exclusive sectoral
representation view in the constitutional party-list debates; to allow political parties to join a multiparty
election is a pre-determination of the sectors’ political massacre. This issue, however, has been laid to
rest in the constitutional debates and should not now be revived and resurrected by coursing it through
the Judiciary.

As the constitutional debates and voting show, what the framers envisioned was a multiparty system
that already includes sectoral representation. Both sectoral representation and multiparty-system under
our party-list system are concepts that comfortably fall within this vision of a Filipino-style party-list
system. Thus, both the text and spirit of the Constitution do not support an interpretation of exclusive
sectoral representation under the party-list system; what was provided was an avenue for the
marginalized and underrepresented sectors to participate in the electoral system – it is an invitation for
these sectors to join and take a chance on what democracy and republicanism can offer.

Indeed, our democracy becomes more vibrant when we allow the interaction and exchange of ideas,
philosophies and interests within a broader context. By allowing the marginalized and underrepresented
sectors who have the numbers, to participate together with other political parties and interest groups
that we have characterized, under the simple and relatively inexpensive mechanism of party-list we have
today, the framers clearly aimed to enrich principled discourse among the greater portion of the society
and hoped to create a better citizenry and nation.

b.1. Impact on Political Parties

To summarize the above discussions and to put them in operation, political parties are not only "not
excluded" from the party-list system; they are, in fact, expressly allowed by law to participate. This
participation is not impaired by any "marginalized and underrepresented" limitation understood in the
Ang Bagong Bayani sense.

As applied to political parties, this limitation must be understood in the electoral sense, i.e., they are
parties espousing their unique and "marginalized" principles of governance and who must operate in the
party-list system because they only have a "marginal" chance of winning in the legislative district
elections. This definition assumes that the political party is not also a participant in the legislative district
elections as the basic concept and purpose of the party-list innovation negate the possibility of playing in
both legislative district and party-list arenas.

Thus, parties – whether national, regional or sectoral – with legislative district election presence
anywhere in the country can no longer participate as the party-list system is national in scope and no
overlap between the two electoral systems can be allowed anywhere.

c. The Parties and Their Nominees

c.1. Refusal and/or Cancellation of Party Registration Due to Nominee Problems

The COMELEC’s refusal and cancellation of registration or accreditation of parties based on Section 6 of
RA No. 7941 is a sore point when applied to parties based on the defects or deficiencies attributable to
the nominees. On this point, I maintain the view that essential distinctions exist between the parties and
their nominees that cannot be disregarded. As quoted in the Summary of Positions, however, the need
to make a distinction between the two types of nominees is relevant only to sectoral parties and
organizations.

The cancellation of registration or the refusal to register some of the petitioners on the ground that their
nominees are not qualified implies that the COMELEC viewed the nominees and their party-list groups as
one and the same entity; hence, the disqualification of the nominee necessarily results in the
disqualification of his/her party.

Sadly, this interpretation ignores the factual and legal reality that the party-list group, not the nominee,
is the candidate in the party-list election, and at the same time blurs the distinction between a party-list
representative and a district representative.
c.2. The Party-Nominee Relationship

That the party-list group, rather than the nominee, is voted for in the elections is not a disputed point.
Our essential holding, however, is that a party-list group, in order to be entitled to participate in the
elections, must satisfy the following express statutory requirements:

1. must be composed of Filipino citizens belonging to marginalized and underrepresented sectors,

organizations and parties;

2. has no well-defined political constituencies; and

3. must be capable of contributing to the formulation and enactment of appropriate legislation that will
benefit the nation as a whole.

The Constitution requires, too, that the members of the House of Representatives are those who are
elected from legislative districts, and those who are elected through a party-list system (Section 5(1),
Article VI) where the votes are in favor of a political party, organization or coalition (Section 6, Article IX-
C).

These requirements embody the concept behind the party-list system and demonstrate that it is a
system completely different from the legislative district representation. From the point of view of the
nominee, he or she is not the candidate, the party is the entity voted for. This is in far contrast from the
legislative district system where the candidate is directly voted for in a personal electoral struggle among
candidates in a district. Thus, the nominee in the party-list system is effectively merely an agent of the
party.39 It is the party-list group for whom the right of suffrage40 is exercised by the national electorate
with the divined intent of casting a vote for a party-list group in order that the particular ideology,
advocacy and concern represented by the group may be heard and given attention in the halls of the
legislature.

This concept and its purpose negate the idea that the infirmities of the nominee that do not go into the
qualifications of the party itself should prejudice the party. In fact, the law does not expressly provide
that the disqualification of the nominee results in the disqualification of a party-list group from
participating in the elections. In this regard, Section 6 of RA No. 7941 reads:
Section 6. Removal and/or Cancellation of Registration. The COMELEC may motu proprio or upon verified
complaint of any interested party, remove or cancel, after due notice and hearing, the registration of any
national, regional or sectoral party, organization or coalition on any of the following grounds:

(1) It is a religious sect or denomination, organization or association organized for religious purposes;

(2) It advocates violence or unlawful means to seek its goal;

(3) It is a foreign party or organization;

(4) It is receiving support from any foreign government, foreign political party, foundation, organization,
whether directly or through any of its officers or members or indirectly through third parties for partisan
election purposes;

(5) It violates or fails to comply with laws, rules or regulations relating to elections;

(6) It declares untruthful statements in its petition;

(7) It has ceased to exist for at least one (1) year; or

(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two percentum
(2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency
in which it has registered. [italics supplied]

Notably, all these grounds pertain to the party itself. Thus, if the law were to be correctly applied, the
law, rules and regulations that the party violated under Section 6(5) of RA No. 7941 must affect the party
itself to warrant refusal or cancellation of registration.

To take one of the presented issues as an example, it is only after a party’s failure to submit its list of five
qualified candidates, after being notified of its nominees’ disqualification, that refusal or cancellation of
registration may be warranted. Indeed, if the party-list group inexcusably fails to comply with this simple
requirement of the law (Section 8 of RA No. 7941), then its registration deserves to be denied or an
existing one cancelled as this omission, by itself, demonstrates that it cannot then be expected to
"contribute to the formulation and enactment of appropriate legislation."41

The nominee is supposed to carry out the ideals and concerns of the party-list group to which he/she
belongs; to the electorate, he/she embodies the causes and ideals of the party-list group. However,
unlike the political parties’ official candidates - who can, for whatever reason, disaffiliate from his party
and run as an independent candidate - the linkage between a nominee and his party-list group is actually
a one-way mirror relationship. The nominee can only see (and therefore run) through the party-list
group42 but the party-list group can see beyond the nominee-member.

While the nominee is the entity "elected" to Congress, a companion idea that cannot be glossed over is
that he only carried this out because of the nomination made by the party to which he belongs and only
through the unique party-list system. Note in this regard that the registration with the COMELEC confers
personality (for purposes of election) on the party-list group itself – and to no other. Note, too, that what
the Constitution and the law envision is proportional representation through the group and the latter,
not the nominee, is the one voted for in the elections. Even the manner of his nomination and the duties
his official relation to his party entails are matters that are primarily determined by the party’s governing
constitution and by-laws. To be sure, political dynamics take place within the party itself prior to or after
the period of registration that transcend the nominee’s status as a representative. These realities render
indisputable that a party has the right (in fact, the duty) to replace a nominee who fails to keep his bona
fide membership in the party – i.e., keeping true to the causes of the party - even while the nominee is
serving in Congress.

The preceding discussions show that the COMELEC’s action of apparently treating the nominee and his
party as one and the same is clearly and plainly unwarranted and could only proceed from its
commission of grave abuse of discretion, correctible under Rule 65.

These distinctions do not discount at all the position or the role of the party-list nominee; it is from the
list of nominees submitted by the party that party-list representatives are chosen should the party obtain
the required number of votes. In fact, once the party-list group submits the list of its nominees, the law
provides specific grounds for the change of nominees or for the alteration of their order of nomination.
While the nominee may withdraw his nomination, we ruled it invalid to allow the party to withdraw the
nomination it made43 in order "to save the nominee from falling under the whim of the party-list
organization once his name has been submitted to the COMELEC, and to spare the electorate from the
capriciousness of the party-list organizations."44

We also recognize the importance of informing the public who the nominees of the party-list groups are
as these nominees may eventually be in Congress.45 For the nominees themselves, the law requires
that:
1. he has given his written consent to be a nominee;

2. he must be a natural-born citizen of the Philippines;

3. he must be a registered voter, a resident of the Philippines for a period of not less than one (1) year
immediately preceding the day of the election;

4. he must be able to read and to write;

5. he must be a bona fide member of the party or organization which he seeks to represent for at least
ninety (90) days preceding the day of the election; and

6. he must be at least twenty-five (25) years of age on the day of the election.

From this list, what clearly serves as the legal link between the party and its nominee is only the latter’s
bona fide membership in the party that wishes to participate in the party-list system of election. Because
of this relationship, membership is a fact that the COMELEC must be able to confirm as it is the link
between the party the electorate votes for and the representation that the nominee subsequently
undertakes in the House of Representatives. To illustrate, if a sectoral party’s nominee, who does not
"actually share the attribute or characteristic" of the sector he seeks to represent, fails to prove that he is
a genuine advocate of this sector, then the presence of bona fide membership cannot be maintained.

To automatically disqualify a party without affording it opportunity to meet the challenge on the
eligibility of its nominee or to undertake rectifications deprives the party itself of the legal recognition of
its own personality that registration actually seeks.

The qualifications of a nominee at the same time that it determines whether registration shall be
granted.46 When under the COMELEC’s lights, the shadow cast by the party-list nominee is not truly
reflective of the group he/she is supposed to represent, what the COMELEC must do is to give the party
the opportunity to field in the five qualified candidates. The COMELEC acts with grave abuse of
discretion when it immediately cancels or refuses the registration of a party without affording it the
opportunity to comply.
In line with the idea of proportional and sectoral representation, the law provides that a nominee-
representative who changes his affiliation during his term forfeits his seat. Likewise, in providing for the
rule in case of vacancy for seats reserved for party-list representatives, the reason for the vacancy is
broad enough to include not only the valid causes provided for in the party’s constitution and by-laws
(such as the non-possession of the necessary qualifications), but likewise includes the situation where
the

House of Representatives Electoral Tribunal finds that the nominee-representative unqualified for failure
to measure up to the necessary statutory and other legal requirements.47 If these can be remedied
without affecting the status of the party itself, no reason exists why the registration of a party-list group
should automatically be cancelled or refused by reason of individual failures imputable and affecting
only the nominee.

Based on these considerations and premises, the party-list group and its nominees cannot be wholly
considered as one identifiable entity, with the fault attributable and affecting only the nominee,
producing disastrous effects on the otherwise qualified collective merit of the party. If their identification
with one another can be considered at all, it is in the ideal constitutional sense that one ought to be a
reflection of the other – i.e., the party-list group acts in Congress through its nominee/s and the
nominee in so acting represents the causes of the party in whose behalf it is there for.

E. Observations on Chief Justice Sereno’s Reflections.

Essentially, the Reflections defend the Ang Bagong Bayani ruling and do not need to be further discussed
at this point lest this Opinion be unduly repetitious. One point, however, that needs to be answered
squarely is the statement that this Separate Opinion is not "appropriately sensitive to the context from
which it the 1987 Constitution arose." The Reflections asserted that the heart of the 1987 Constitution is
the Article on Social Justice," citing, in justification, the statements endorsing the approval of the 1987
Constitution, particularly those of Commissioner Cecilia Munoz Palma, the President of the 1986
Constitutional Commission; President Munoz Palma described the Constitution as reaching out to the
social justice sectors.

These cited statements, however, were endorsements of the Constitution as a whole and did not focus
solely on the electoral reform provisions. As must be evident in the discussions above, I have no problem
in accepting the social justice thrust of the 1987 Constitution as it indeed, on the whole, shows special
concern for social justice compared with the 1935 and the 1973 Constitution. The Reflections, however,
apparently misunderstood the thrust of my Separate Opinion as already fully explained above.
This Separate Opinion simply explains that the provisions under consideration in the present case are the
Constitution’s electoral provisions, specifically the elections for the House of Representatives and the
nation’s basic electoral policies (expressed in the Article on the Commission on Elections) that the
constitutional framers wanted to reform.

What the 1987 constitutional framers simply wanted, by way of electoral reform, was to "open up" the
electoral system by giving more participation to those who could not otherwise participate under the
then existing system – those who were marginalized in the legislative district elections because they
could not be elected in the past for lack of the required votes and specific constituency in the winner-
take-all legislative district contest, and who, by the number of votes they garnered as 3rd or 4th placer in
the district elections, showed that nationally, they had the equivalent of what the winner in the
legislative district would garner. This was the concept of "marginalized and underrepresented" and the
"lack of political constituency" that came out in the constitutional deliberations and led to the present
wordings of the Constitution. RA No. 7941 subsequently faithfully reflected these intents.

Despite this overriding intent, the framers recognized as well that those belonging to specifically-named
sectors (i.e., the marginalized and underrepresented in the social justice sense) should be given a head-
start – a "push" so to speak – in the first three (3) elections so that their representatives were simply to
be selected as party-list representatives in these initial elections.

Read in this manner, the party-list system as defined in the Constitution cannot but be one that is
"primarily" grounded on electoral reform and one that was principally driven by electoral objectives. As
written, it admits of national and regional political parties (which may be based on ideology, e.g. the
Socialist Party of the Philippines), with or without social justice orientation. At the same time, the system
shows its open embrace of social justice through the preference it gave to the social justice sectors
(labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as
may be provided by law, except the religious sector) in the first three elections after ratification of the
Constitution, and to the labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and professionals, in the RA No. 7941
definition of sectoral party.

The objection regarding the "textualist" approach has been fully discussed in the Summary of Positions
and need not be repeated here.

F. The Eleven-Point Parameters for the COMELEC

I close this Opinion by outlining the eleven-point parameters that should guide the COMELEC in the
exercise of its power to register parties under the party-list system of elections. For ease of application,
these parameters refer back to the Ang Bagong Bayani guidelines, particularly on what points in these
guidelines should be discarded and what remains intact and effective.

In view of our prior ruling in BANAT v. Commission on Elections (disqualifying political parties from
participating in the party-list elections), the petitioners understandably attempted to demonstrate, in
one way or another, that they represent the marginalized and underrepresented sectors, as the term is
understood in Bagong Bayani. As discussed in this Separate Opinion, however, the requirement of being
marginalized and underrepresented should be understood, not only in the narrow sectoral sense, but
also in the broader electoral sense.

We likewise take note of the fact that this is the first time that the Court ever attempted to make a
categorical definition and characterization of the term "marginalized and under-represented," a phrase
that, correctly understood, must primarily be interpreted in the electoral sense and, in case of sectoral
parties and organizations, also partly in the special interests and social justice contexts. The COMELEC
understandably has not been given parameters under the present pronouncements either in evaluating
the petitions for registration filed before it, on one hand, or in determining whether existing party-list
groups should be allowed to participate in the party-list elections. Hence, the need for the following
parameters as we order a remand of all these consolidated petitions to the COMELEC.

1. Purpose and Objective of Party-list System. The primary objective and purpose of the party-list system
(established under the Constitution and RA 7941 is electoral reform by giving marginalized and under-
represented parties (i.e. those who cannot win in the legislative district elections and in this sense are
marginalized and may lack the constituency to elect themselves there, but who – nationally – may
generate the following and votes equivalent to what a winner in the legislative district election would
garner), the chance to participate in the electoral exercise and to elect themselves to the House of
Representatives through a system other than the legislative district elections.

At the same time, the party-list system recognizes sectoral representation through sectoral organizations
(that, as defined did not require or identify any social justice characteristic but were still subject to the
"marginalized and underrepresented" and the "constituency" requirements of the law), and through
sectors identified by their common "social justice" characteristics (but which must likewise comply with
the "marginalized and underrepresented" and "constituency" requirements of the law).

2. For political parties (whether national or regional): a) to be classified as political parties, they must
advocate an ideology or platform, principles and policies, for the general conduct of government. The
application of the further requirement under RA No. 7941 (that as the most immediate means of
securing the adoption of their principles of governance, they must regularly nominate and support their
leaders and members as candidates for public office) shall depend on the particular circumstances of the
party.
b) The marginal and under-representation in the electoral sense (i.e., in the legislative district elections)
and the lack of constituency requirements fully apply to political parties, but there is no reason not to
presume compliance with these requirements if political parties are not participants in any legislative
district elections.

c) Role of Major Political Parties in Party-list Elections. Major political parties, if they participate in the
legislative district elections, cannot participate in the party-list elections, nor can they form a coalition
with party-list parties and run as a coalition in the party-list elections.

A coalition is a formal party participant in the party-list system; what the party-list system forbids directly
(i.e., participation in both electoral arenas), the major political parties cannot do indirectly through a
coalition.

No prohibition, however, exists against informal alliances that they can form with party-list parties,
organizations or groups running for the party-list elections. The party-list component of these informal
alliances is not prohibited from running in the party-list elections.

The plain requirements intrinsic to the nature of the political party evidently render the first and second
Ang Bagong Bayani guideline invalid, and significantly affects the fourth guideline. To stress, political
parties are not only "not excluded" from the party-list system; they are, in fact, expressly allowed by law
to participate without being limited by the "marginalized and underrepresented" requirement, as
narrowly understood in Ang Bagong Bayani

3. Sectoral parties, groups and organizations must belong to the sectors enumerated in Section 5(2),
Article VI of the 1987 Constitution and Section 5 of RA No. 7941 that are mainly based on social justice
characteristics; or must have interests, concerns or characteristics specific to their sectors although they
do not require or need to identify with any social justice characteristic.

In either case, they are subject to the "marginalized and under-represented" and the "constituency"
requirements of the law through a showing, supported by evidence, that they belong to a sector that is
actually characterized as marginal and under-represented.

Sectoral parties, groups and organizations are additionally subject to the general overriding requirement
of electoral marginalization and under-representation and the constituency requirements of the law, but
there is no reason why compliance with these requirements cannot be presumed if they are not
participants in any legislative district elections.

4. Registration with the COMELEC.

Political parties (whether national or regional, already registered with the COMELEC as regular political
parties but not under the party-list system) must register under the party-list system to participate in the
party-list elections. For party-list registration purposes, they must submit to the COMELEC their
constitution, by-laws, platform or program of government, list of officers, coalition agreement and other
relevant information that the COMELEC may require.48

Similarly, sectoral parties, groups or organizations already registered under the general COMELEC rules
for registration of political parties (but not under the party-list system), must register under the party-list
system to be eligible to participate in the party-list elections, and must likewise submit relevant
documentation that the COMELEC shall require.

Political and sectoral parties, groups or organizations already previously registered and/or accredited
under the party-list system, shall maintain their previous registration and/or accreditation and shall be
allowed to participate in the party-list elections unless there are grounds for cancellation of their
registration and/or accreditation under Section 6, RA 7941.

5. Submission of Relevant Documents. The statutory requirement on the submission of relevant

documentary evidence to the COMELEC is not an empty and formal ceremony. The eighth (8th)

Ang Bagong Bayani guideline relating to the ability of the party-list group (not just the nominee but
directly through the nominee or indirectly through the group) to contribute to the formulation and
enactment of appropriate legislation that will benefit the nation remains wholly relevant and should be
complied with through the required submissions the COMELEC shall require.

The platform or program of government, among others, is very important considering the significant role
the party-list group itself, as a collective body, plays in the party-list system dynamics even as its nominee
or nominees is the one who is considered "Member" of the House of Representatives. The statutory
recognition of an "appropriate legislation" beneficial to the nation injects the meaningful democracy
that the party-list system seeks to add stimulus into.
6. Party Disqualification. Political parties and sectoral parties and organizations alike must not possess
any of the disqualifying grounds under Section 6, RA 7941 to be able to participate in the party-list
elections.

Insofar as the third Ang Bagong Bayani guideline merely reiterates the first ground for cancellation or
refusal of registration under Section 6, RA 7941 – that the party-list group is a religious sect or
denomination, organization or association, organized for religious purpose – and the same ground is
retained under these parameters.

7. Compliance with Substantive Requirements. To justify their existence, all party-list groups must
comply with the substantive requirements of the law specific to their own group, their own internal rules
on membership, and with the COMELEC’s Rules of Procedure.

8. Prohibited Assistance from Government. The party or organization must not be an adjunct of, or a
project organized or an entity funded or assisted by the government. It must be independent of the
government. This is the fifth Ang Bagong Bayani guideline. While this requirement only contemplated of
the marginalized and underrepresented sector in the narrow sense in Ang Bagong Bayani, no reason
exists not to extend this requirement even to political parties participating in the party-list elections.

To emphasize, the general overriding requirement in the party-list elections is inability to participate in
the legislative district elections with a fair chance of winning. If a political party at the very least obtains
the assistance of the government, whether financially or otherwise, then its participation in the party-list
system defeats the broad electoral sense in which the term "marginalized" and "underrepresented" is
understood as applied to political parties.

9. Qualification of Party-list Nominee. The sixth Ang Bagong Bayani guideline, being a mere faithful
reiteration of Section 9 of RA 7941 (qualification of a party-list nomine), should remain. In addition, the
party-list nominee must comply with the proviso in Section 15 of RA 7941.

10. Party and Nominee Membership. For sectoral parties and organizations, the seventh Ang Bagong
Bayani guideline – i.e., that the nominees must also represent the marginalized and underrepresented
sectors – refers not only to the actual possession of the marginalized and underrepresented status
represented by the sectoral party or organization but also to one who genuinely advocates the interest
or concern of the marginalized and underrepresented sector represented by the sectoral party or
organization.
To be consistent with the sectoral representation envisioned by the framers, majority of the members of
the sectoral party or organization must actually belong to the sector represented.

For political parties, it is enough that their nominees are bona fide member of the group they represent.

11. Effects of Disqualification of Nominee. The disqualification of a nominee (on the ground that he is
not a bona fide member of the political party; or that he does not possess the actual status or
characteristic or that he is not a genuine advocate of the sector represented) does not automatically
result in the disqualification of the party since all the grounds for cancellation or refusal of registration
pertain to the party itself.

The party-list group should be given opportunity either to refute the finding of disqualification of its
nominee or to fill in a qualified nominee before cancellation or refusal of registration is ordered.
Consistent with Section 6 (5) and Section 8 of RA 7941, the party-list group must submit a list containing
at least five nominees to the COMELEC. If a party-list group endeavors to participate in the party-list
elections on the theoretical assumption that it has a national constituency (as against district
constituency), then compliance with the clear requirement of the law on the number of nominees must
all the more be strictly complied with by the party-list group.

Considering that the thirteen petitioners, who are new applicants, only secured a Status Quo Ante Order
(instead of mandatory injunction that would secure their inclusion in the ballots now being printed by
the COMELEC), the remand of their petitions is only for the academic purpose of determining their
entitlement to registration under the party-list system but not anymore for the purpose of participating
in the 2013 elections.

Any of the remaining party-list groups involved in the remaining 40 petitions49 that obtain the number
of votes required to obtain a seat in the House of Representatives would still be subject to the
determination by the COMELEC of their qualifications based on the parameters and rationale expressed
in this Separate Opinion.

ARTURO D. BRION

Associate Justice

Footnotes
1 412 Phil. 308, 342 (2001).

2 RA No. 7941, Section 5.

3 RA No. 7941, Section 8.

4 Varias v. COMELEC, G.R. No. 189078, Feb. 11, 2010.

5 Mitra v. Commission on Elections, G.R. No. 191938, July 2, 2010.

6 See: De Castro v. Judicial and Bar Council, G.R. No. 191002, March 17, 2010.

7 See: Justice Arturo Brion’s Concurring and Dissenting Opinion in De Castro v. Judicial and Bar Council.
See also Justice Reynato Puno's Dissenting Opinion in Lambino v. Commission on Elections, G.R. No.
174153, October 25, 2006, where he stated:

"…Two strains of stare decisis have been isolated by legal scholars. The first, known as vertical stare
decisis deals with the duty of lower courts to apply the decisions of the higher courts to cases involving
the same facts. The second, known as horizontal stare decisis requires that high courts must follow its
own precedents. Prof. Consovoy correctly observes that vertical stare decisis has been viewed as an
obligation, while horizontal stare decisis, has been viewed as a policy, imposing choice but not a
command. Indeed, stare decisis is not one of the precepts set in stone in our Constitution."

It is also instructive to distinguish the two kinds of horizontal stare decisis — constitutional stare decisis
and statutory stare decisis. Constitutional stare decisis involves judicial interpretations of the
Constitution while statutory stare decisis involves interpretations of statutes. The distinction is important
for courts enjoy more flexibility in refusing to apply stare decisis in constitutional litigations. Justice
Brandeis' view on the binding effect of the doctrine in constitutional litigations still holds sway today. In
soothing prose, Brandeis stated: "Stare decisis is not . . . a universal and inexorable command. The rule of
stare decisis is not inflexible. Whether it shall be followed or departed from, is a question entirely within
the discretion of the court, which is again called upon to consider a question once decided." In the same
vein, the venerable Justice Frankfurter opined: "the ultimate touchstone of constitutionality is the
Constitution itself and not what we have said about it." In contrast, the application of stare decisis on
judicial interpretation of statutes is more inflexible. As Justice Stevens explains: "after a statute has been
construed, either by this Court or by a consistent course of decision by other federal judges and
agencies, it acquires a meaning that should be as clear as if the judicial gloss had been drafted by the
Congress itself." This stance reflects both respect for Congress' role and the need to preserve the courts'
limited resources.

8 Information Technology Foundation of the Philippines v. Commission on Elections, G.R. No. 159139,
January 13, 2004.

9 Articles 4 and 8 of the Civil Code reads:

Art. 4. Laws shall have no retroactive effect, unless the contrary is provided.

Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the
legal system of the Philippines.

10 143 Phil. 209 (1970).

11 Id. at 219.

12 In Francisco, Jr. v. The House of Representatives (460 Phil. 830, 885-886), the Court held: "where there
is ambiguity, ratio legis est anima. x x x

xxxx

x x x The ascertainment of that intent is but in keeping with the fundamental principle of constitutional
construction that the intent of the framers of the organic law and of the people adopting it should be
given effect. The primary task in constitutional construction is to ascertain and thereafter assure the
realization of the purpose of the framers and of the people in the adoption of the Constitution. It may
also be safely assumed that the people in ratifying the Constitution were guided mainly by the
explanation offered by the framers. [italics, emphasis and underscore supplied]
13 The deliberations, together with voting on the various issues raised and the wording of the
constitutional text of the party-list provision, took place on July 22, 1986, July 25, 1986 and August 1,
1986.

14 1987 CONSTITUTION, Article VI, Section 5(1).

15 II RECORD of the CONTITUTIONAL COMMISSION, p. 86.

16 Id. at 259.

17 RA No. 7941, Section 3(a).

18 RA No. 7941, Section 2.

19 RA No. 7941, Section 3(b) to (f).

20 Ang Bagong Bayani-OFW Labor Party v. COMELEC, supra note 4, at 342-345.

21 G.R. Nos. 179271 and 179295, April 21, 2009, 586 SCRA 210.

22 See ponencia of Justice Antonio T. Carpio.

23 II RECORD of the Constitutional Commission, p. 561. Stated by Commissioner Villacorta prior to the
approval of the amendment that became Section 5(1), Article VI of the 1987 Constitution:

Mr. Villacorta. I would like to report that the proponents of sectoral representation and of the party list
system met to thoroughly discuss the issues and have arrived at a compromise formula.

On this first day of August 1986, we shall, hopefully, usher in a new chapter in our national history by
giving genuine power to our people in the legislature. Commissioner Monsod will present to the
Committee on the Legislative the amendment to Section 5 which we have agreed upon. [emphasis and
underscore ours]

The underlined and boldfaced portion was lifted out of context in Ang Bagong Bayani.

24 See Dissent of J. Vicente V. Mendoza which discussed the Villacorta and Monsod positions, as well as
the statements of Commissioners Jaime Tadeo and Blas Ople, based on the record of the Constitutional
Commission.

25 1987 CONSTITUTION, Article VI, Section 5(2).

26 On July 25, 1986.

27 II RECORD of the Constitutional Commission, pp. 255, 561-562. See also the Dissents of Justice Jose C.
Vitug and Justice Vicente Mendoza in Ang Bagong Bayani-OFW Labor Party v. COMELEC, supra note 4.

28 See Section 2 of RA No. 7941.

29 Pages 19-23 of this Separate Opinion.

30 Supra note 4.

31 Id. at 333.

32 Ang Bagong Bayani-OFW Labor Party v. COMELEC, supra note 4, at 334.

33 Per Francisco, Jr. v. The House of Representatives (supra note7, at 884-885): verba legis signifiesthat
"wherever possible, the words used in the Constitution must be given their ordinary meaning
exceptwhere technical terms are employed. x x x We look to the language of the document itself in our
search for its meaning. We do not of course stop there, but that is where we begin. It is to be assumed
that the words in which constitutional provisions are couched express the objective sought to be
attained. They are to be given their ordinary meaning except where technical terms are employed in
which case the significance thus attached to them prevails. As the Constitution is not primarily a lawyer’s
document, it being essential for the rule of law to obtain that it should ever be present in the people’s
consciousness, its language as much as possible should be understood in the sense they have in common
use. What it says according to the text of the provision to be construed compels acceptance and negates
the power of the courts to alter it, based on the postulate that the framers and the people mean what
they say. Thus these are the cases where the need for construction is reduced to a minimum."
(emphasis, underscore and italics ours)

34 Id. at 887, "ut magis valeat quam pereat" - the Constitution is to be interpreted as a whole. "It is a
well-established rule in constitutional construction that no one provision of the Constitution is to be
separated from all the others, to be considered alone, but that all the provisions bearing upon a
particular subject are to be brought into view and to be so interpreted as to effectuate the great
purposes of the instrument. Sections bearing on a particular subject should be considered and
interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be
allowed to defeat another, if by any reasonable construction, the two can be made to stand together."
(Citing Civil Liberties Union v. Executive Secretary, G.R. Nos. 83896 & 83815, February 22, 1991, 194
SCRA 317.)

In other words, the Court must harmonize them, if practicable, and must lean in favor of a construction
which will render every word operative, rather than one which may make the words idle and nugatory.

If, however, the plain meaning of the word is not found to be clear, resort to other aids is available.

While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional
convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may
be had only when other guides fail as said proceedings are powerless to vary the terms of the
Constitution when the meaning is clear. Debates in the constitutional convention "are of value as
showing the views of the individual members, and as indicating the reasons for their votes, but they give
us no light as to the views of the large majority who did not talk, much less of the mass of our fellow
citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to
construe the constitution from what appears upon its face." The proper interpretation therefore
depends more on how it was understood by the people adopting it than in the framers' understanding
thereof. (Id.)

35 II RECORD of the Constitutional Commission, pp. 85-86.

36 Id. at 252.
37 See Justice Vicente Mendoza’s Dissent in Ang Bagong Bayani-OFW Labor Party v. COMELEC, supra
note 4, at 369-370.

38 412 Phil. 322 (2001).

39 Separate Dissenting Opinion of Justice Jose C. Vitug in Ang Bagong Bayani-OFW Labor Party v.
COMELEC, supra note 4, at 354.

40 1987 CONSTITUTION, Article V. In Akbayan-Youth v. COMELEC (407 Phil. 618, 636 [2001]), the Court
characterized the requirement of registration as an "indispensable precondition" to the exercise of the
right of suffrage. The Court said: "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 in different and so far removed from the pressing order of the day
and the prevalent circumstances of the times."

41 See Section 2 of RA No. 7941.

42 In fact, a nominee’s change of party affiliation during his term results in the forfeiture of his seat in
Congress (see Section 15 of RA No. 7941). If the party-list group fails to obtain a seat in Congress, the law
nevertheless requires a nominee to be a bona fide member of the party-list group.

43 Lokin, Jr. v. Commission on Elections, G.R. Nos. 179431-32 and 180443, June 22, 2010, 621 SCRA 385,
412.

44 Ibid.

45 Bantay Republic Act or BA-RA 7941 v. Commission on Elections, G.R. Nos. 177271 and 177314, May 4,
2007, 523 SCRA 1, 16-17.
46 For party-list groups already previously registered, the COMELEC can determine the qualifications of
their nominees once they file a Manifestation of Intent to participate.

47 See Abayon v. House of Representatives Electoral Tribunal, supra note 42; and Lokin, Jr. v. Commission
on Elections, supra note 45.

48 RA No. 7941, Section 5.

49 The petitioners in GR Nos. 204421 and 204425 refer to one and the same party-list group, only that
they are presented by different personalities, claiming to be the legitimate officers of the party.

The Lawphil Project - Arellano Law Foundation

CONCURRING AND DISSENTING OPINION

REYES, J.:

In its noblest sense, the party-list system truly empowers the masses and ushers a new hope for genuine
change. Verily, it invites those marginalized and underrepresented in the past — the farm hands, the
fisher folk, the urban poor, even those in the underground movement — to come out and participate, as
indeed many of them came out and participated during the last elections. The State cannot now
disappoint and frustrate them by disabling and desecrating this social justice vehicle.1

The Court is tasked to resolve the fifty-three (53) consolidated Petitions for Certiorari and Petitions for
Certiorari and Prohibition filed under Rule 64, in relation to Rule 65, of the Rules of Court by various
party-list groups and organizations. The petitions assail the resolutions issued by the respondent
Commission on Elections (COMELEC) that either cancelled their existing registration and accreditation, or
denied their new petitions for registration under the party-list system.2

Of the fifty-three (53) petitions, thirteen (13) are instituted by new applicants to the party-list system,
whose respective applications for registration and/or accreditation filed under Republic Act No. 79413
(RA 7941) and COMELEC Resolution No. 93664 dated February 21, 2012 were denied by the COMELEC En
Banc upon its review of the resolutions of a division of the Commission.
The forty (40) other petitions are instituted by party-list groups or organizations that have been
previously registered and accredited by the COMELEC, with most of them having been allowed to
participate under the party-list system in the past elections. These 40 petitions involve the COMELEC’s
recent cancellation of their groups’ registration and accreditation, which effectively denied them of the
chance to participate under the party-list system in the May 2013 National and Local Elections.

The Antecedents

All petitions stem from the petitioners’ desire and intent to participate as candidates in the party-list
system of representation, which takes its core from Section 5, Article VI of the 1987 Constitution which
reads:

Article VI

THE LEGISLATIVE DEPARTMENT

Section 5. 1. The House of Representatives shall be composed of not more than two hundred and fifty
members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their
respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided
by law, shall be elected through a party-list system of registered national, regional, and sectoral parties
or organizations.

2. The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party list. For three consecutive terms after the ratification of
this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided
by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities,
women, youth, and such other sectors as may be provided by law, except the religious sector.

x x x x (Emphasis ours)

In 1995, RA 7941 was enacted to provide for the matters that shall govern the party-list system, including
the registration of party-list groups, the qualifications of party-list nominees, and the election of party-
list representatives. In 1998, the country’s first party-list election was held. Since then, the Court has
been called upon on several instances to resolve controversies on the system, oftentimes on questions
involving the qualifications of party-list groups and their nominees. Among the landmark cases on these
issues is Ang Bagong Bayani-OFW Labor Party v. COMELEC5 decided by the Court in 2001, wherein the
Court laid down the eight-point guidelines6 in the determination of the qualifications of party-list
participants.

Pursuant to its specific mandate under Section 18 of RA 7941 to "promulgate the necessary rules and
regulations as may be necessary to carry out the purposes of the Act," the COMELEC issued on February
21, 2012 Resolution No. 9366. About 2807 groups, comprised of new applicants and previously-
registered party-list groups, formally signified their intent to join the party-list system in the May 13,
2013 elections.

As required in Rule 1, Resolution No. 9366 on the registration of organized groups that are not yet
registered under the party-list system, among the groups that filed with the COMELEC their respective
petitions for registration were: (1) Alab ng Mamamahayag (ALAM), petitioner in G.R. No. 204139; (2)
Akbay Kalusugan (AKIN), petitioner in G. R . N o . 204367; (3) Ako An Bisaya (AAB), petitioner in G.R.
204370; (4) Alagad ng Sining (ASIN), petitioner in G.R. No. 204379; (5) Association of Guard, Utility
Helper, Aider, Rider, Driver/Domestic Helper, Janitor, Agent and Nanny of the Philippines, Inc.
(GUARDJAN), petitioner in G.R. No. 204394; (6) Kalikasan Party-List (KALIKASAN), petitioner in G.R. No.
204402; (7) Association of Local Athletics Entrepreneurs and Hobbyists, Inc. (ALA-EH), petitioner in G.R.
No. 204426; (8) 1 Alliance Advocating Autonomy Party (1AAAP), herein petitioner in G.R. No. 204435; (9)
Manila Teachers Savings and Loan Association, Inc. (Manila Teachers), petitioner in G.R. No. 204455; (10)
Alliance of Organizations, Networks and Associations of the Philippines, Inc. (ALONA), petitioner in G.R.
No. 204485; and (11) Pilipinas Para sa Pinoy (PPP), petitioner in G.R. No. 204490. The political parties
Abyan Ilonggo Party (AI), petitioner in G.R . No. 204436, and Partido ng Bida (PBB), petitioner in G.R. No.
204484, also sought to participate for the first time in the party-list elections, although their petitions for
registration were not filed under Rule 1 of Resolution No. 9366.

Party-list groups that were previously registered and accredited merely filed their Manifestations of
Intent to Participate in the Party-List System of Representation in the May 13, 2013 Elections, as
provided in Rule 3 of Resolution No. 9366. Among these parties were: (1) Atong Paglaum, Inc. (Atong
Paglaum), petitioner in G.R. No. 203766; (2) AKO Bicol Political Party (AKB), petitioner in G.R. Nos.
203818-19; (3) Association of Philippine Electric Cooperatives (APEC), petitioner in G.R. No. 203922; (4)
Aksyon Magsasaka-Partido Tinig ng Masa (AKMA-PTM), petitioner in G.R. No. 203936; (5) Kapatiran ng
mga Nakulong na Walang Sala, Inc. (KAKUSA), petitioner in G.R. No. 203958; (6) 1st Consumers Alliance
for Rural Energy, Inc. (1-CARE), petitioner in G.R. No. 203960; (7) Alliance for Rural and Agrarian
Reconstruction, Inc. (ARARO), petitioner in G. R . No. 203976; (8) Association for Righteousness Advocacy
on Leadership (ARAL), petitioner in G.R. No. 203981; (9) Alliance for Rural Concerns (ARC), petitioner in
G.R. No. 204002; (10) Alliance for Nationalism and Democracy (ANAD), petitioner in G.R. No. 204094;
(11) 1-Bro Philippine Guardians Brotherhood, Inc. (1BRO-PGBI), petitioner in G.R. No. 204100; (12) 1
Guardians Nationalist Philippines, Inc. (1GANAP/GUARDIANS), petitioner in G.R. No. 204122; (13) Agapay
ng Indigenous Peoples Rights Alliance, Inc. (A-IPRA), petitioner in G.R. No. 204125; (14) Kaagapay ng
Nagkakaisang Agilang Pilipinong Magsasaka (KAP), petitioner in G. R. No. 204126; (15) The True Marcos
Loyalist (for God, Country, and People) Association of the Philippines, Inc. (BANTAY), petitioner in G.R.
No. 204141; (16) Pasang Masda Nationwide Party (PASANG MASDA), petitioner in G.R. No. 204153; (17)
Action Brotherhood for Active Dreamer, Inc. (ABROAD), petitioner in G.R. No. 204158; (18) Aangat Tayo
Party-List Party (AT), petitioner in G.R. No. 204174; (19) Philippine Coconut Producers Federation, Inc
(COCOFED), petitioner in G.R. No. 204216; (20) Abang Lingkod Party-List (ABANG LINGKOD), petitioner in
G. R . No. 204220; (21) Firm 24-K Association, Inc. (FIRM 24-K), petitioner in G.R. No. 204236; (22)
Alliance of Bicolnon Party (ABP), petitioner in G.R. No. 204238; (23) Green Force for the Environment
Sons and Daughters of Mother Earth (GREENFORCE), petitioner in G.R. No. 204239; (24) Agri-Agra na
Reporma Para sa Magsasaka ng Pilipinas Movement (AGRI), petitioner in G.R. No. 204240; (25) Blessed
Federation of Farmers and Fishermen International, Inc. (A BLESSED Party-List), petitioner in G. R . No.
204263; (26) United Movement Against Drugs Foundation (UNIMAD), petitioner in G.R. No. 204318; (27)
Ang Agrikultura Natin Isulong (AANI), petitioner in G.R. No. 204321; (28) Bayani Party List (BAYANI),
petitioner in G.R. No. 204323; (29) Action League of Indigenous Masses (ALIM), petitioner in G.R. No.
204341; (30) Butil Farmers Party (BUTIL), petitioner in G.R. No. 204356; (31) Alliance of Advocates in
Mining Advancement for National Progress (AAMA), petitioner in G.R. No. 204358; (32) Social Movement
for Active Reform and Transparency (SMART), petitioner in G.R. No. 204359; (33) Adhikain at Kilusan ng
Ordinaryong Tao Para sa Lupa, Pabahay, Hanapbuhay at Kaunlaran (AKO-BAHAY), petitioner in G.R. No.
204364; (34) Binhi – Partido ng mga Magsasaka Para sa mga Magsasaka (BINHI), petitioner in G.R. No.
204374; (35) Pilipino Association for Country – Urban Poor Youth Advancement and Welfare (PACYAW),
petitioner in G.R. No. 204408; (36) 1-United Transport Koalisyon (1-UTAK), petitioner in G.R. No. 204410;
(37) Coalition of Associations of Senior Citizens in the Philippines, Inc. (SENIOR CITIZENS), petitioner in
G.R. No. 204421 and G.R. No. 204425; (38) Ang Galing Pinoy (AG), petitioner in G.R. No. 204428; and
(39) 1st Kabalikat ng Bayan Ginhawang Sangkatauhan (1st KABAGIS), petitioner in G.R. No. 204486.

On August 2, 2012, the COMELEC issued Resolution No. 9513, which provides for additional rules on the
Commission’s disposition of the new petitions and manifestations of intent that were filed with it under
Resolution No. 9366. Resolution No. 9513, entitled In the Matter of: (1) The Automatic Review by the
Commission En Banc of Pending Petitions for Registration of Party-List Groups; and (2) Setting for
Hearing the Accredited Party-List Groups or Organizations which are Existing and which have Filed
Manifestations of Intent to Participate in the 2013 National Elections, reads in part:

WHEREAS, it is necessary and indispensable for the Commission En Banc to review and affirm the grant
of registration and accreditation to party-list groups and organizations in view of its role in ensuring that
only those parties, groups, or organizations with the requisite character consistent with the purpose of
the party-list system is registered and accredited to participate in the party-list system of representation;

WHEREAS, Section 4, Rule 1 of the Commission’s Rules of Procedure authorizes the suspension of the
Rules or any portion thereof in the interest of justice and in order to obtain the speedy disposition of all
matters pending before it; and
WHEREAS, Section 19 of the Commission’s Rules of Procedure on Motions for Reconsideration should be
suspended in order for the Commission En Banc to fulfill its role as stated in the Ang Bagong Bayani case.

NOW THEREFORE, in view of the foregoing, the Commission on Elections, by virtue of the powers vested
in it by the Constitution, the Omnibus Election Code, and Republic Act No. 7941 or the "Party List System
Act", hereby RESOLVES to promulgate the following:

1. In all pending cases where a Division grants the Petition for Registration of a party-list group or
organization, the records shall be forwarded to the Commission En Banc for automatic review within five
(5) days from the promulgation of the Resolution without need of a motion for reconsideration. It shall
be understood that a party-list group shall not be deemed accredited without affirmation from the
Commission En Banc of the Division’s ruling. For this purpose, the provisions of Rule 19 of the 1993
COMELEC Rules of Procedure shall be suspended.

2. To set for summary evidentiary hearings by the Commission En Banc, for purposes of determining
their continuing compliance with the requirements of R.A. No. 7941 and the guidelines in the Ang
Bagong Bayani case, and, if non-compliant, cancel the registration of the following:

(a) Party-list groups or organizations which are already registered and accredited and will participate in
the May 13, 2013 Elections, provided that the Commission En Banc has not passed upon the grant of
their respective Petitions for Registration; and

(b) Party-list groups or organizations which are existing and retained in the list of Registered Party-List
Parties per Resolution No. 9412, promulgated on 27 April 2012, and which have filed their respective
Manifestations of Intent to Participate in the Party-List System of Representation in the May 13, 2013
Elections.

With the provision in Resolution No. 9513 on the COMELEC’S determination of the continuing
compliance of registered/accredited parties that have filed their manifestations of intent, the
Commission En Banc scheduled summary hearings on various dates, and allowed the party-list groups to
present their witnesses and submit their evidence.8 After due proceedings, the COMELEC En Banc issued
the following resolutions:

1. Resolution9 dated October 10, 2012 in SPP No. 12-154 (PLM) and SPP No. 12-177 (PLM)
The COMELEC retained the registration and accreditation of AKB10 as a political party, but denied its
participation in the May 2013 party-list elections. The COMELEC’s ruling is founded on several grounds.
First, the party does not represent or seek to uplift any marginalized and underrepresented sector. From
its constitution and by-laws, the party seeks to represent and uplift the lives of Bicolanos, who, for the
COMELEC, cannot be considered or even associated with persons who are marginalized and
underrepresented. Second, the provinces in the Bicol Region already have their respective
representatives in Congress. To allow more representatives for the Bicolanos and the Bicol Region would
violate the rule on proportional representation of "provinces, cities and the Metropolitan Manila in
accordance with the number of their inhabitants, and on the basis of a uniform and progressive ratio."11
Third, AKB’s nominees, a businessman, three lawyers and an ophthalmologist, are not marginalized and
underrepresented; thus, they fail to satisfy the seventh guideline in Ang Bagong Bayani.

2. Omnibus Resolution12 dated October 11, 2012, which covers SPP No. 12-161 (PLM), SPP No. 12-187
(PLM), SPP No. 12-188 (PLM) and SPP No. 12-220 (PLM)

The COMELEC cancelled the registration and accreditation of Atong Paglaum, ARAL, ARC and UNIMAD.

The COMELEC held that Atong Paglaum’s13 nominees do not belong to the sectors which the party
represents, i.e., the urban poor, consumer, women and youth. While these include the women and
youth sectors, five of the party’s six nominees are all male, and all of its nominees are above 30 years14
of age. Further, the COMELEC ruled that the personal circumstances of the nominees belie the claim that
they belong to the urban poor sector: (1) its first nominee15 served as vice-president in a multinational
corporation; (2) its second nominee16 is the owner of a corporation engaged in the business of
pineapple contract growing with Del Monte Philippines; (3) its third nominee17 is the owner and
manager of two business establishments; and (4) its sixth nominee18 is an electrical engineer and three-
term member of the Sangguniang Panglungsod of Malaybalay City, Bukidnon. Finally, the COMELEC cited
the party’s failure to file its Statement of Contributions and Expenditures when it participated in the
2010 Elections, despite having been ordered to do so during the summary evidentiary hearing.

In ruling against ARAL,19 the COMELEC cited the party’s "failure to comply, and for violation of election
laws, rules and regulations pursuant to Section 6(5) of RA No. 7941, in connection with the fourth, sixth,
and seventh guidelines in Ang Bagong Bayani."20 The Commission explained that while the party seeks
to represent the women and youth sectors, only the first of its seven nominees is a woman, and only its
second nominee is below 30 years of age. The Commission further took note that: first, some of its
activities were jointly conducted with religious organizations, and second, its fifth nominee is a pastor.
"Although these circumstances are not sufficient proof that the organization is itself a religious sect,
denomination or association and/or is organized for religious purposes, one nevertheless cannot but
hold doubt."21
The registration of ARC22 was cancelled for the failure of its nominees to qualify. The party claims to
represent landless farmers, agrarian reform beneficiaries, fisherfolk, upland dwellers, indigenous people
and Bangsa Moro people.23 However, none of its nominees belongs to any of these sectors. In addition,
the party failed to prove that a majority of its members belong to the sectors that it seeks to represent.
The party’s advocacy for the "development of the rural sectors" is also not limited to the cited sectors, as
it may even include sectors that are not marginalized and underrepresented.

UNIMAD24 claims to represent "the marginalized and underrepresented sectors which include young
professionals like drug counsellors and lecturers, veterans and the youth, among others."25 For the
COMELEC, however, such sectors are not marginalized and underrepresented. The fight against illegal
drugs is an issue that interests the general public, and not just particular sectors of the society. There are
also existing laws, such as the Dangerous Drugs Act, and various specialized government agencies, such
as the Philippine Drug Enforcement Agency (PDEA) and the Dangerous Drugs Board (DDB), that already
address the problem of illegal drugs. In cancelling UNIMAD’s registration, the COMELEC also cited the
party’s failure to establish its track record as an organization. Furthermore, while the party claims to
represent the youth and young professionals, none of its nominees is aged below thirty years.

3. Omnibus Resolution26 dated October 16, 2012, which covers SPP No. 12-196 (PLM), SPP No. 12-223
(PLM) and SPP No. 12-257 (PLM)

The main reason for the cancellation of 1BRO-PGBI’s27 registration was its failure to define the sector
that it seeks to represent. An affidavit executed by its second nominee indicates that the party
represents professionals, while its Manifestation of Intent indicates that it is multi-sectoral. For the
COMELEC, such differing statements from the party reveal that 1BRO-PGBI does not really intend to
represent any marginalized and underrepresented sector. Instead, it only seeks to represent its
members, and that it is more of a "fraternity/brotherhood composed mostly of military men with
esoteric learnings."28 The party’s nominees also did not appear to belong to a marginalized and
underrepresented sector, being a barangay captain, consultant, guidance counselor, lawyer and retired
captain/security consultant.

The registration of 1GANAP/GUARDIANS29 was also cancelled, following the COMELEC’s finding that it is
a military fraternity. The Commission also cited the following grounds: first, there is a "glaring similarity
between 1GANAP/GUARDIANS and 1BRO-PGBI;"30 second, "it wishes to protect the interests of its
members; however, it failed to establish x x x the group’s service outside the walls of its
‘brotherhood’;"31 third, the "community volunteer workers" sector which it seeks to represent is too
broad to allow for meaningful representation; and fourth, its nominees do not appear to belong to the
said sector.
A BLESSED Party-List32 claims to represent farmers and fishermen in Region XI. The COMELEC resolved
to cancel its registration after finding that three of its seven nominees are "not themselves farmers and
fishermen, and none of its nominees are registered voters of Region XI, the particular region which they
seek to represent."33

4. Resolution34 dated October 16, 2012 in SPP No. 12-260

The COMELEC cancelled the registration of 1-CARE35 on the following grounds: (1) rural energy
consumers, the sector which 1-CARE intends to represent, is not marginalized and underrepresented; (2)
the party’s track record and activities are almost exclusively related to electric cooperatives and not to
rural energy consumers; and (3) its nominees, all of whom are/were high-level officials of various electric
cooperatives in the country, do not belong to the sector of rural energy consumers.

5. Resolution36 dated October 16, 2012 in SPP Case No. 12-201 (PLM)

The COMELEC cancelled the registration and accreditation of APEC37 on the following grounds: (1) a
review of its constitution and by-laws shows that it does not represent a marginalized and
underrepresented sector, as it is merely an economic lobby group for the electric power industry; and (2)
all of its nominees, being an employee, electrical engineer, sugar planter and retired government
employee, do not appear to belong to the sector that the party claims to represent.

6. Resolution38 dated October 23, 2012 in SPP No. 12-232 (PLM)

In cancelling AT’s39 registration and accreditation, the COMELEC ruled that: first, the party, which
represents the sectors of women, elderly, youth, labor and urban poor, does not appear to have a bona
fide intention to represent all these sectors, as it has, in fact, failed to uplift the welfare of all these
sectors through the authorship or sponsorship by its incumbent representative in Congress of house bills
that are beneficial to the elderly, youth and urban poor; and second, its nominees, being all
professionals, do not belong to any of the marginalized sectors that the party seeks to represent.

7. Omnibus Resolution40 dated October 24, 2012, which covers SPP Case No. 12-288 (PLM)

The COMELEC’s resolution to cancel ARARO’s41 registration and accreditation was founded on the
following: (1) the separate interests of the peasant and urban poor sectors, which the party both
represents, differ and even oftentimes conflict; (2) most of its nominees cannot be considered members
of any of these sectors, as they reside "in the gated subdivisions of Metro Manila"42; hence, such
nominees can be considered more as landowners, and not farmers as they claim themselves to be; (3)
the party failed to show that three of its nominees43 are among its bona fide members; (4) Its nominee
Quirino De La Torre (De La Torre) appeared to be a farmland owner, rather than an actual farmer; and (5)
It failed to present any document to show that its Board had resolved to participate in the May 2013
elections, and that De La Torre was authorized to sign and file with the COMELEC the documents that are
required for the said purpose.

8. Omnibus Resolution44 dated October 24, 2012, which covers SPP Case No. 12-279 (PLM), SPP No. 12-
248 (PLM), SPP No. 12-263 (PLM), SPP No. 12-180 (PLM), SPP No. 12-229 (PLM), SPP No. 12-217 (PLM),
SPP No. 12-277 (PLM) and SPP No. 12-015 (PLM)

The COMELEC cancelled the registration of AGRI, AKMA-PTM, KAP, AKO BAHAY, BANTAY, PACYAW,
PASANG MASDA and KAKUSA.

In AGRI’s45 case, the COMELEC ruled that: (1) for more than a year immediately after the May 2010
elections, AGRI stopped existing as an organization, and this constitutes as a ground to cancel
registration under Section 6 of RA 7941; (2) its nominees did not appear to actually belong to the
marginalized and underrepresented sectors of peasants and farmers, which the party seeks to represent;
(3) it submitted a list of only four nominees, instead of five as mandated by Section 8 of RA 7941; and (4)
there is no showing that it undertook meaningful activities for the upliftment of its constituency.

AKMA-PTM’s46 registration as a party to represent the farmers sector was cancelled for its failure to
show that majority of its members and officers belonged to the marginalized and underrepresented.
There was also no proof that its first to fourth nominees,47 who were an educator and persons engaged
in business, actually belonged to a marginalized and underrepresented sector. Its fifth to ninth nominees,
although all farmers, had not been shown to work on uplifting the lives of the members of their sector.

The COMELEC cancelled the registration of KAP48 (formerly Ako Agila ng Nagkakaisang Magsasaka, Inc. –
Ako Agila) on the following grounds: (1) its Manifestation of Intent and Certificate of Nomination were
not signed by an appropriate officer of the party, as required by Section 3, Rule 2 of Resolution No. 9366;
(2) it failed to show that it has continued to work for the betterment of the lives of the members of the
sectors it represents, i.e. farmers and peasants; and (3) it failed to show that its nominees actually
belong to the sectors which the party represents, or that they have undertaken meaningful activities
which address the concerns of said sectors.

The COMELEC cancelled the registration of AKO BAHAY49 for its failure to prove that its nominees
actually belong to the marginalized and underrepresented sector that the party seeks to represent, i.e.,
the urban poor, or to have engaged in meaningful activities that tend to uplift and enrich the lives of the
members of said sector.

BANTAY50 claims to represent the "peasants, urban poor, workers and nationalistic individuals who have
stakes in promoting security of the country against insurgency, criminality and their roots in economic
poverty."51 The COMELEC held that the party failed to prove that the majority of its members belonged
to the marginalized and underrepresented. In addition, there was no proof that its first and third
nominees, a dentist and private sector employee/businesswoman, respectively, actually belonged to the
marginalized and underrepresented sectors which BANTAY seeks to represent.

The registration of PACYAW52 was cancelled on the following grounds: first, since the party desired to
change the sector to represent, i.e., from the "urban poor youth" sector to the "urban poor" sector, it
needed to file a new application for registration; second, it failed to show a credible track record of
working for the interests of the marginalized and underrepresented; third, it failed to prove that majority
of its officers and members were from the urban poor sector; and fourth, its nominees are also not
members of the urban poor sector.

PASANG MASDA’s53 registration was cancelled on two grounds. First, it represents both drivers and
operators, who may have conflicting interests that may adversely affect the party’s mandate to represent
both sectors. Second, its nominees are all operators or former operators, making the COMELEC question
the party’s capacity to represent the interests of drivers.

The registration of KAKUSA,54 a party "organized to represent persons imprisoned without proof of guilt
beyond reasonable doubt,"55 was cancelled by the COMELEC for lack of proof that majority of its
officers and members belong to the marginalized and underrepresented. The Commission also took note
of its failure to show that its incumbent representative has been working on any legislation in Congress
to uplift the lives of those whom the group allegedly represents. The party showed no credible track
record, and its nominees, being persons engaged in business, did not appear to be marginalized and
underrepresented.

9. Resolution56 dated October 30, 2012 in SPP Case No. 12-256 (PLM)

The COMELEC cancelled AG’s57 registration and accreditation on three grounds. First, the party failed to
appear during the summary hearing scheduled by the COMELEC. For the Commission, such failure shows
the party’s "wanton disregard for the rules and regulations of the Commission"58 and constitutes a
sufficient ground to cancel its registration under Rule 2, Section 2 (f)59 of Resolution No. 9366. Second,
the party does not intend to represent any marginalized and underrepresented sector, as evidenced by
its lack of track record. In addition, nowhere in its constitution, by-laws and platform of government does
it state the marginalized and underrepresented sector that it seeks to represent. It is only in its
Memorandum later submitted to the COMELEC that it mentions aiding the marginalized sectors of
security guards, drivers, vendors, tanods, small-scale businesses and the jobless. Third, its nominees do
not belong to any of the mentioned sectors.

10. Resolution60 dated November 7, 2012 in SPP Case No. 12-185 (PLM)

ANAD’s61 registration and accreditation were cancelled by the COMELEC on several grounds. First, it
does not represent an identifiable marginalized and underrepresented sector, judging from the party’s
declared "advocacies to publicly oppose, denounce and counter, communism in all its form in the Filipino
society, in industries, in the academe and in the labor sector; to publicly oppose, denounce and counter
all acts of terrorism and insurgency; to preserve, protect and promote the democratic principles of good
government and governance by peaceful and democratic means under a regime of law and order; to
generate and provide avenues for the development of skills of its members as aide in providing income
opportunities; develop and implement livelihood programs for its members."62 Second, the party
submitted a list of only three nominees, in violation of Section 4, Rule 3 of Resolution No. 9366 that
requires the submission of a list of at least five nominees. Third, its nominees do not belong to the
marginalized and underrepresented. Fourth, it failed to submit its Statement of Contributions and
Expenditures for the 2007 National and Local Elections.

11. Omnibus Resolution63 dated November 7, 2012, which covers SPP No. 12-060 (PLM), SPP No. 12-254
(PLM) and SPP 12-269 (PLM)

The COMELEC cancelled the registration and accreditation of GREENFORCE, FIRM 24-K and ALIM.

The ruling against GREENFORCE64 was based on the following grounds: (1) the party is only an advocacy
group composed of environmental enthusiasts intending to take care of, protect and save Mother Earth
and the country’s natural reserves from destruction or degradation; (2) even if a liberal stance is adopted
on the meaning of sectoral representation, the accreditation of GREENFORCE still merits cancellation for
the party’s failure to prove its continuing compliance with the track record requirement; (3) based on
their certificates of acceptance, the personal circumstances of GREENFORCE’s nominees demonstrate
that they cannot be classified as marginalized citizens. The first and second nominees are businessmen,
the third and fourth nominees are lawyers, leaving only the fifth nominee, a fish farmer, as the only
marginalized citizen among the nominees.

The COMELEC cancelled the registration of FIRM 24-K65 after finding that its nominees do not belong to
the sectors which the party represents. It pointed out that while FIRM 24-K supposedly represents the
urban poor and peasants in the National Capital Region, only two of its nominees actually reside therein.
Also, the COMELEC held that FIRM 24-K failed to prove its track record as an organization; that the
photographs it submitted, showing its tree-planting activities, are self-serving and incapable of exhibiting
an organized program for the urban poor.

ALIM’s66 registration was cancelled for its failure to establish that its nominees, or at least a majority of
them, are members of the indigenous people sector which the party seeks to represent. Only its first
nominee submitted a certificate from the National Commission on Indigenous Peoples (NCIP), which
confirmed his membership with the Itawes Indigenous Cultural Communities. In addition, the COMELEC
explained that while ALIM’s president, Fatani Abdul Malik, testified that their party specifically
represents the indigenous masses from Mindanao and the Cordilleras, only two of the party’s five
nominees hailed from those areas. Finally, the party had nominees who did not appear to belong to a
"marginalized class," being a businessman, lawyer and real estate developer.

12. Resolution67 dated November 7, 2012 in SPP No. 12-204 (PLM)

In cancelling the registration of AAMA,68 the COMELEC held that the sectors it represents, namely,
employees, either skilled or ordinary labor, professionals directly engaged in mining activities or
occupation incidental thereto and non-government groups advocating advancement of responsible
mining for national progress, is a specifically defined group which may not be allowed registration under
the party-list system. In addition, AAMA failed to establish that its nominees actually represent and
belong to said sectors, that they have actively participated in the activities of AAMA, that they truly
adhere to its advocacies, and are bona fide members of the party.

13. Resolution69 dated November 7, 2012 in SPP No. 12-272 (PLM)

The COMELEC cancelled the registration of SMART70 after finding that its nominees are disqualified from
representing the sectors which the party represents, i.e., workers, peasants, youth, students, women,
professionals and those belonging to sectors such as domestic helpers, vendors, drivers and construction
workers, since: first, the party claims to represent the youth sector, yet four of its five nominees are
more than 30 years of age while its fifth nominee would be more than 30 years of age on May 13, 2013;
second, the party claims to represent the women sector, yet four out of its five nominees are male; and
third, its nominees are composed of businessmen, a doctor, an executive chef and a computer
programmer, who are thus not marginalized. Also, the COMELEC observed that the party’s activities do
not specifically cater to the interest and needs of the sectors which it represents. Lastly, the lack of
restrictions in the class of persons who may join SMART casts doubt as to whether a majority its
members are indeed marginalized and underrepresented.

14. Resolution71 dated November 7, 2012 in SPP No. 12-173 (PLM)

The COMELEC held that the registration and accreditation in 2010 of ABP72 as a party-list group was
defective. The party was initially accredited by the COMELEC in 2009 as a regional political party. In
November 2009, it only filed a Manifestation of Intent to participate in the May 2010 elections, instead
of a petition for registration under Section 5 of RA 7941. Acting on the recommendation of its Law
Department, the COMELEC accredited ABP as a party-list group on January 15, 2010. The COMELEC then
ruled that ABP could not be accredited for the May 2013 Elections as a party-list group sans the filing of
a petition for registration. Also, the COMELEC held that ABP does not represent any sector. While it
claimed during the summary evidentiary hearing that it represents construction workers and
professionals, its constitution and by-laws indicate that its membership is composed of men and women
in Region V. Lastly, none of ABP’s nominees are employed in the construction industry.

15. Resolution73 dated November 7, 2012 in SPP Case No. 12-210 (PLM)

BAYAN I74 claims to represent "the marginalized and underrepresented professional sector comprised of
millions of jobless and underemployed professionals such as the registered nurses, midwives, engineers,
lawyers, certified public accountants, among others."75 Its registration and accreditation were cancelled
by the COMELEC on the ground of its failure to prove a track record of trying to uplift the marginalized
and underrepresented sector of professionals. In addition, the party’s second nominee,76 being a
businessman, was declared unqualified to represent the sector of professionals.

16. Resolution77 dated November 7, 2012 in SPP Case No. 12-252 (PLM)

The registration and accreditation of AANI78 were cancelled on several grounds. First, the party has
failed to establish a track record of enhancing the lives of the marginalized and underrepresented
farmers which it claims to represent. Its activities that include relief operations and consultative
meetings did not appear to primarily benefit the said sector. Second, more than majority of the party’s
nominees are not farmers, contrary to the seventh guideline in Ang Bagong Bayani that a party’s
nominees must belong to the marginalized and underrepresented sector to be represented.

17. Resolution79 dated November 7, 2012 in SPP Case No. 12-292 (PLM)

The registration and accreditation of A-IPRA,80 which claims to represent and advance the interests of
indigenous peoples, were cancelled on the ground of its failure to prove that its five nominees are
"indeed indigenous people; have actively participated in the undertakings of A-IPRA; truly adhere to its
advocacies; and most of all, that the said nominees are its bona fide members."81
18. Resolution82 dated November 7, 2012 in SPP Case No. 12-202 (PLM)

The COMELEC cancelled the registration and accreditation of COCOFED83 on several grounds. First, the
party is already affiliated with a number of coconut agencies, both private and government. COCOFED
admits that it sits in the board of the United Coconut Association of the Philippines (UCAP), the
Philippine Coconut Research and Development Foundation (PCRDF), Coconut Investment Co. (CIC),
Cocofed Marketing Corporation (CMC) and the Quezon Coconut Planters Savings and Loan Bank
(QCPSLB). Such circumstance negates the claim that it is still marginalized. Second, a party-list group
must not be an adjunct of, or a project organized or an entity funded by the government. Contrary to this
guideline, COCOFED openly admits that it is assisted by the Philippine Coconut Authority (PCA) in various
farmer-oriented projects. Third, COCOFED’s nominees are not members of the marginalized sector of
coconut farmers and producers, which the party claims to represent.

19. Resolution84 dated November 7, 2012 in SPP No. 12-238 (PLM)

ABANG LINGKOD’s85 registration was cancelled for its failure to establish a track record of continuously
representing marginalized and underrepresented peasant farmers. Further, the party failed to show that
its members actually belong to the sector which it claims to represent. As regards the qualification of
ABANG LINGKOD’s nominees, there was a failure to show that they are themselves marginalized and
underrepresented, that they have actively participated in programs for the advancement of peasant
farmers, and that they truly adhere to the advocacies of ABANG LINGKOD.

20. Resolution86 dated November 14, 2012 in SPP Case No. 12-158 (PLM)

The registration and accreditation of ABROAD87 were cancelled on several grounds. First, the party was
accredited as a regional multi-sectoral party to represent the sectors of labor, overseas workers,
professionals, urban poor and peasants. However, the documents submitted by the party indicate that it
only advances the welfare of the labor, overseas workers and professionals sectors, and fails to champion
the causes of the urban poor and peasants sectors. In addition, while the party was registered way back
in September 2009, the documents presented to prove its track record only show its activities beginning
January 15, 2011. The COMELEC held, "(w)hat transpired from September 4, 2009 to December 2010 is a
puzzle to us. ABROAD could have already carried out its purposes and platform of government in this
period of time to promote the interests of its members, but it did not."88 Third, ABROAD’s nominees do
not fall under any of the sectors which the party seeks to represent.

21. Resolution89 dated November 28, 2012 in SPP Case No. 12-228 (PLM)
The COMELEC cancelled the registration and accreditation of BINHI90 on the following grounds: (1) the
party’s component organization, the Cabanatuan City Seed Growers Multi-Purpose Cooperative
(CCSGMPC), being a cooperative duly registered with the Cooperative Development Authority (CDA),
cannot be considered as a marginalized or underrepresented sectoral organization as it already receives
ample assistance, attention and protection from the State through the CDA; (2) being a cooperative, the
party receives assistance from the government through the Department of Agriculture, in violation of
the fifth guideline in Ang Bagong Bayani; and (3) while it may appear from the documents submitted
during the summary evidentiary hearing that BINHI/CCSGMPC indeed promotes the interests and
concerns of peasants, farmers and farm tillers, there is no proof, however, that the group, as a whole, is
marginalized and underrepresented.

22. Resolution91 dated November 28, 2012 in SPP Case No. 12-136 (PLM)

The registration and accreditation of BUTIL92 were cancelled on two grounds. First, in the Judicial
Affidavit submitted by its Secretary General to the Comelec, it is stated that the party represents
"members of the agriculture and cooperative sector." For the COMELEC, BUTIL failed to establish that the
"agricultural and cooperative sectors" are marginalized and underrepresented. Second, the party’s
nominees neither appear to belong to the sectors which they seek to represent, nor to have actively
participated in the undertakings of the party.

23. Resolution93 dated December 3, 2012 in SPP No. 12-194 (PLM)

1st KABAGIS94 was found by the COMELEC to have ceased to exist after the 2010 elections. The
documents which it submitted to prove its continued existence were substantially the same as those it
presented to support its petition for registration in 2009. Furthermore, 1st KABAGIS appeared to have
"recycled the documentation of its activities in 2009 to deliberately mislead the Commission to believe
that it has existed continuously."95 For the COMELEC, these circumstances constitute sufficient grounds
for the cancellation of the party’s registration, as provided in Section 6 (6) and (7) of RA 7941 on a party’s
declaration of untruthful statements in the petition and failure to exist for at least one year. Finally, the
COMELEC took note that while 1st KABAGIS intends to represent the labor, fisherfolks and the urban
poor indigenous cultural communities sectors, none of its five nominees belong to any of these sectors.

24. Resolution96 dated December 4, 2012 in SPP No. 12-198 (PLM)

The COMELEC cancelled 1-UTAK’s97 accreditation, holding that: First, the party does not factually and
truly represent a marginalized sector considering that drivers and operators, which 1-UTAK seeks to both
represent, have diametrically opposing interests. The advocacy of drivers pertains to wages and benefits
while operators are mainly concerned with their profits. Second, the party’s nominees do not belong to
any marginalized and underrepresented sector. The party did not even include among its nominees a
representative from the drivers’ sector.

25. Resolution98 dated December 4, 2012 in SPP No. 12-157 (PLM) and SPP No. 12-191 (PLM)

In cancelling the registration of SENIOR CITIZENS,99 the COMELEC explained that, first, its nominees
during the May 2010 elections had agreed on a term-sharing agreement, which circumvented Section 7,
Article VI of the 1987 Constitution that mandates a three-year term for members of the House of
Representatives. The term-sharing agreement was also declared contrary to public policy since a given
term of public office cannot be made subject to any agreement of the parties; it is not a commodity that
can be shared, apportioned or be made subject of any private agreement. The Commission further cited
Section 7, Rule 4 of COMELEC Resolution No. 9366, and emphasized that a violation or failure to comply
with laws, rules and regulations relating to elections is, pursuant to Section 6 (5) of RA 7941, a ground for
the cancellation of a party’s registration.

26. Resolution100 dated December 5, 2012 in SPP No. 11-002

The COMELEC En Banc affirmed the COMELEC Second Division’s resolution to grant the registration and
accreditation of PBB101 as an NCR Political Party, but prohibited it from participating in the 2013 party-
list elections based on the following grounds: (1) the party does not represent any marginalized and
underrepresented sector, as it is composed of businessmen, civil society groups, politicians and ordinary
citizens advocating genuine people empowerment, social justice, and environmental protection and
utilization for sustainable development; (2) it failed to apply for registration as a party-list group; and (3)
it failed to establish its track record as an organization that seeks to uplift the lives of the marginalized
and underrepresented.

The COMELEC En Banc’s authority under Resolution No. 9513 to conduct an automatic review of the
COMELEC divisions’ resolutions favoring new registrants also resulted in the COMELEC En Banc’s issuance
of several resolutions. It reversed the rulings of the Commission’s divisions through the issuance of the
following:

1. Resolution102 dated November 23, 2012 in SPP No. 12-099 (PLM)

ASIN’s103 petition for registration was denied by the COMELEC En Banc on the following grounds: first,
the "artists" sector, which is among the sectors which ASIN seeks to represent, is not considered
marginalized and underrepresented under RA 7941 and relevant jurisprudence; second, ASIN failed to
prove its track record as an organization, there being no sufficient evidence to show that it had
performed acts that tend to advance the interest of the sectors which it seeks to represent; and third,
ASIN failed to show that its nominees are qualified under the provisions of RA 7941 and the guidelines
laid down in Ang Bagong Bayani.

2. Omnibus Resolution104 dated November 27, 2012, which covers SPP No. 12-041 (PLM) and SPP No.
12-011 (PLM)

The COMELEC En Banc denied the registration of Manila Teachers and ALA-EH.

In denying Manila Teachers’105 petition, the COMELEC En Banc reasoned that a non-stock savings and
loan association cannot be considered a marginalized and underrepresented sector under the party-list
system of representation, for being neither a part of the "working class," "service class," "economically
deprived," social outcasts," "vulnerable" and "work impaired."106 Furthermore, the COMELEC held that
a non-stock savings and loan association is mandated to engage, exclusively, in the legitimate business of
a non-stock savings and loan association; thus, the very foundation of its organization would be forfeited
should it pursue its party-list campaign.107 Even granting that Manila Teachers may seek registration
under the party-list system as a group representing public school teachers, the fact that its first and
second nominees are not teachers by profession adversely affects the party’s application.

The denial of ALA-EH’s108 petition was based on its failure to show that its members, particularly
businessmen, sports enthusiasts, donors and hobbyists, belong to an identifiable group of persons which
the law considers as marginalized. Further, the COMELEC En Banc ruled that the group’s nominees did
not appear to be qualified, as they were individuals doing financially well in their respective businesses
that do not contribute to the welfare of Filipino athletes and sports enthusiasts.109

3. Resolution110 dated November 27, 2012 in SPP No. 12-057 (PLM)

The COMELEC En Banc denied 1AAAP’s111 petition on the ground of the failure of the party’s nominees
to qualify. While the group seeks registration as a regional political party under Region XI, its third and
fourth nominees112 are not residents of the said region. For the COMELEC En Banc, such circumstance
disqualifies them as nominees, for "it would be difficult for the said nominees to represent the interest
of 1AAAP’s supposed constituency who are residents and voters of Region XI."113 In addition, the group
failed to satisfy the second guideline in Ang Bagong Bayani, with the Comelec En Banc taking note that
four114 of its five nominees do not belong to any marginalized and underrepresented sector.

4. Resolution115 dated November 27, 2012 in SPP No. 12-104 (PL)

AKIN116 claims to be an organization of health workers and social workers from urban poor
communities. The denial of its petition is founded on the group’s failure to show that its nominees
belong to the urban poor sector. Its first and second nominees117 are lawyers, its second nominee118 is
a retired government employee, its fourth nominee119 is an accountant/social volunteer worker, and its
fifth nominee120 is a secretary.

5. Resolution121 dated November 29, 2012 in SPP No. 12-011 (PP)

AAB122 applied for registration as a regional political party in Region VIII, allegedly with "constituencies
composed of the men and women (registered voters) of Region VIII, its provinces, cities, municipalities
and all other Bisayans from the other parts of the Philippines whose roots can be traced to the Bisayan
Regions of Region VIII x x x."123 In denying AAB’s petition, the COMELEC En Banc cited the following
grounds: first, the records do not show that the group represents a marginalized sector of the society,
other than by its claim to have formed a sectoral wing, the Association of Bisayan Farmers-R8 (ABF-R8),
registered with the Securities and Exchange Commission (SEC) on May 4, 2012 and aiming to pursue
legislation and programs for the benefit of the Bisayan farmers in Region VIII; second, AAB’s alleged
constituencies in Region VIII are not underrepresented because they already have their district
representatives in Congress; third, granting that ABF-R8 is a legitimate sectoral group of AAB, it has been
in existence only since May 4, 2012, putting into question its track record of representing peasants and
farmers; and fourth, its nominees are neither farmers nor peasants – three are lawyers, and the two
others are company employees.

6. Resolution124 dated December 4, 2012 in SPP Case Nos. 12-009 (PP) and 12-165 (PLM)

Although the COMELEC En Banc affirmed AI’s125 registration as a regional political party in Region VI, it
denied the party’s registration under the party-list system on several grounds. First, the party failed to
show that it represents a marginalized and underrepresented sector, considering that the Province of
Iloilo already has "no less than five (5) incumbent district representatives in Congress."126 Second, the
party made untruthful statements in the

Memorandum it filed with the COMELEC, when it claimed that some of its nominees are members of its
sectoral wings Patlad-Cayos Farmers’ Association (Patlad-Cayos) and Alyansa ng Industriya ng Bigas
(ANIB), composed of farmers and NFA-accredited retailers, respectively. The COMELEC En Banc took note
that none of its nominees are farmers and food retailers, judging from their occupations or professions
as declared in the certificates of acceptance to their nominations. Third, AI’s fourth nominee127 has
withdrawn his acceptance to his nomination, while its first128 and fifth129 nominees have filed their
certificates of candidacy for local elective positions in Iloilo.
7. Resolution130 dated December 4, 2012 in SPP No. 12-175 (PL)

ALONA131 claims to be an aggrupation of citizen groups composed of homeowners’ associations, urban

poor, elderly organizations, young professionals, overseas Filipino workers, women, entrepreneurs,
cooperatives, fisherfolk, farmers, labor, transport, vendors and youth groups. In ruling against the party’s
petition, the COMELEC En Banc cited: first, the group’s failure to establish how it can represent all these
fourteen (14) sectors which have different, even conflicting, causes and needs; second, the sectors of
homeowners associations, entrepreneurs and cooperatives are not marginalized and underrepresented;
and third, three of the party’s nominees, a businessman and two lawyers, do not belong to any
marginalized and underrepresented sector.

Among the petitioners, only the petitions for registration of ALAM, KALIKASAN, PPP and GUARDJAN were
denied by a division of the COMELEC in the first instance. The divisions’ rulings were elevated to the
COMELEC En Banc by virtue of motions for reconsideration, which were resolved via the following
Resolutions:

1. Resolution132 dated November 7, 2012 in SPP 12-127 (PL)

The COMELEC En Banc affirmed the COMELEC Second Division’s finding that ALAM133 failed to
sufficiently prove its track record as an organization, and to show that it actually represents and seeks to
uplift the marginalized and the underrepresented. Further, the COMELEC En Banc ruled that the myriad
of sectors which ALAM seeks to represent, i.e., community print journalists, news dealers, news sellers,
newsboys, tribesmen who learned to love the liberty of the press, B’laan tribesmen who cry for ancestral
lands, urban poor or informal settlers, drivers and small-time operators of transport units, poor residents
in urban barangays, and labor and jury system advocates, is too broad and unrelated to one another.
Although there is no prohibition against multi-sectoral representation in the party-list system, a party,
organization or coalition which seeks registration must be capable of serving fully all the sectors which it
seeks to represent.

2. Resolution134 dated November 7, 2012 in SPP Case No. 12-061 (PP)

KALIKASAN,135 a group which claims to be a pro-environment political party representing the sectors of
workers, informal settlers, women, youth, elderly, fisherfolks, handicapped, overseas workers and
ordinary professionals who are most vulnerable to the effects of climate change and environmental
degradation,136 was denied registration, on the following grounds: (1) the principles and objectives
stated in its constitution and by-laws reflect an advocacy for the protection of the environment rather
than for the causes of the marginalized and underrepresented sectors it seeks to represent; (2) there is
no proof that majority of its membership belong to the marginalized and underrepresented; (3) it seeks
to represent sectors with conflicting interests; and (4) its nominees do not belong to any of the sectors
which the party claims to represent.

3. Resolution137 dated November 14, 2012 in SPP No. 12-145 (PL)

GUARDJAN’s138 petition for registration was denied on the ground of its failure to prove its membership
base and solid track record. The group failed to present the activities that sufficiently benefited its
intended constituency of guards, utility helpers, aiders, riders, drivers, domestic helpers, janitors, agents
and nannies. Its nominees were also found to be unqualified, as they do not belong to any of the sectors
which GUARDJAN seeks to represent; rather, they are the owner, consultant or manager of agencies
which employ security guards. For the COMELEC En Banc, such circumstance will only result in a conflict
of interest between the owners or managers of security agencies on one hand, and the security guards
on the other.

4. Resolution139 dated December 5, 2012 in SPP No. 12-073 (PLM)

The COMELEC En Banc affirmed the findings of the COMELEC First Division, which cited in its
Resolution140 the failure of PPP141 to show a constituency of marginalized and underrepresented
sectors. The group claims to represent the entire four provinces and five cities of Region XII, all already
belonging to eight congressional districts, and already represented by eight district congressmen.
Furthermore, the group has failed to show a track record of undertaking programs that are aimed at
promoting the welfare of the group or any sector that it claims to represent.

The issuance by the COMELEC En Banc of the foregoing resolutions prompted the filing of the present
petitions, which delve primarily on the following contentions:

First, the COMELEC En Banc committed grave abuse of discretion, amounting to lack or excess of
jurisdiction, in issuing Resolution No. 9513. The petitioners challenge the COMELEC En Banc’s authority
under the Resolution to conduct an automatic review of its division’s resolutions notwithstanding the
absence of a motion for reconsideration. For the petitioners, the COMELEC En Banc cannot dismiss with
the procedural requirement on the filing of motions for reconsideration under Rule 19 of the 1993
COMELEC Rules of Procedure before it can review a decision or resolution rendered by any of its
divisions in quasi-judicial proceedings.
As regards the COMELEC’s resolve to determine, after summary evidentiary hearings, the continuing
compliance of previously-registered and accredited party-list groups, the COMELEC En Banc denied the
parties of their right to due process and has violated the principle of res judicata that should have
otherwise worked in the petitioners’ favor. Further, the COMELEC’s exercise of its quasi-judicial powers,
which they claim to include the cancellation of existing registration and accreditation, could not have
been exercised at the first instance by the COMELEC En Banc, but should have been first decided by a
division of the Commission.

Second, the COMELEC En Banc committed grave abuse of discretion, amounting to lack or excess of
jurisdiction, in refusing or cancelling the petitioners’ registration and accreditation under the party-list
system. The petitioners assail the COMELEC En Banc’s appreciation of facts and application of pertinent
laws and jurisprudence, especially the eight-point guidelines in Ang Bagong Bayani, in determining their
sectors’, groups’ and nominees’ respective qualifications.

Given the common questions and the similarity in the issues that are raised in the 53 subject petitions,
the Court has resolved, through its Resolutions of November 13, 2012, November 20, 2012, November
27, 2012, December 4, 2012, December 11, 2012 and February 19, 2013 to consolidate the petitions,
and require the COMELEC to comment thereon.

With the petitioners’ inclusion in their respective petitions of prayers for the issuance of temporary
restraining order and/or writ of preliminary injunction, the Court also ordered, via the afore-mentioned
resolutions, the issuance of Status Quo Ante Orders (SQAOs) in all the petitions.

The Office of the Solicitor General (OSG), as counsel for the respondent COMELEC, filed its Consolidated
Comments on the petitions. In refuting the petitioners’ claim of grave abuse of discretion against the
COMELEC, the OSG submitted the following arguments:142

First, the COMELEC has the power to review existing party-list groups’ or organizations' compliance with
the requirements provided by law and the guidelines set by jurisprudence on the party-list system. The
OSG cites Section 2, Article IX-C of the 1987 Constitution which enumerates the powers and functions of
the COMELEC, giving emphasis on paragraph 1 thereof that gives the Commission the power to enforce
and administer all laws and regulations relative to the conduct of an election, and paragraph 5 that cites
the Commission’s power to register political parties, organizations or coalitions.

Second, the COMELEC’s review of the parties’ qualifications was a valid exercise by the COMELEC of its
administrative powers; hence, the COMELEC En Banc could have, even at the first instance, ruled on it.
Third, the requirements of due process were satisfied because the petitioners were given a fair and
reasonable opportunity to be heard. The COMELEC’s resolve to suspend its own rules was sanctioned by
law, as it was aimed for a speedy disposition of matters before the Commission.

Furthermore, no petitioner had previously questioned the procedure that was adopted by the COMELEC
on the review of the parties’ registration; instead, the groups voluntarily submitted to the Commission’s
jurisdiction and actively participated in its proceedings.

Fourth, the COMELEC faithfully applied the grounds for denial and cancellation of a group’s registration,
as provided by statute and prevailing jurisprudence. The OSG specifically cites Sections 5 to 9 of RA 7941
and the eight-point guidelines in Ang Bagong Bayani.

Fifth, the COMELEC’s findings of fact in each petitioner’s case are supported by substantial evidence;
thus, are final and non-reviewable as provided in Section 5, Rule 64 of the 1997 Rules of Civil Procedure.

In précis, the fifty-three (53) consolidated petitions concern two main issues: the procedural issue as to
the COMELEC En Banc’s power to automatically review a decision of its division without the requisite
filing of a motion for reconsideration, and the substantive issue as to the COMELEC’s alleged grave abuse
of discretion in denying or cancelling the registration and/or accreditation under the party-list system of
the petitioners.

I signify my assent to the ponencia’s rulings on the procedural issue; however, consistent with afore-
quoted pronouncement of the Court in Ang Bagong Bayani,143 I signify my strong dissent on major
points in the ponencia’s resolution of the substantive issue, including its discussions on the nature of the
party-list system and its disposition on the qualifications of political parties which seek to participate
under the party-list system of representation. Furthermore, notwithstanding the new standards that the
ponencia now provides for party-list groups, the remand of all 53 petitions to the COMELEC is
unnecessary.

Procedural Aspect

The Powers and Functions of the

COMELEC
Under the present Constitution, the COMELEC is recognized as the sole authority in the enforcement and
administration of election laws. This grant of power retraces its history in the 1935 Constitution. From
then, the powers and functions of the COMELEC had continuously been expounded to respond to the
call of contemporary times. In Mendoza v. Commission on Elections,144 the Court briefly noted:

Historically, the COMELEC has always been an administrative agency whose powers have been increased
from the 1935 Constitution to the present one, to reflect the country’s awareness of the need to provide
greater regulation and protection to our electoral processes to ensure their integrity. In the 1935
Constitution, the powers and functions of the COMEsLEC were defined as follows:

SECTION 2. The Commission on Elections shall have exclusive charge of the enforcement and
administration of all laws relative to the conduct of elections and shall exercise all other functions which
may be conferred upon it by law. It shall decide, save those involving the right to vote, all administrative
questions affecting elections, including the determination of the number and location of polling places,
and the appointment of election inspectors and of other election officials. All law enforcement agencies
and instrumentalities of the Government, when so required by the Commission, shall act as its deputies
for the purpose of insuring free, orderly, and honest election. The decisions, orders, and rulings of the
Commission shall be subject to review by the Supreme Court. x x x

These evolved into the following powers and functions under the 1973 Constitution:

(1) Enforce and administer all laws relative to the conduct of elections.

(2) Be the sole judge of all contests relating to the elections, returns, and qualifications of all members of
the National Assembly and elective provincial and city officials.

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

These powers have been enhanced in scope and details under the 1987 Constitution, x x x145

Under the 1987 Constitution, the intent to reinforce the authority of the COMELEC is evident in the grant
of several other powers upon the Commission, specifically under Section 2, Article IX-C thereof which
reads:
Section 2. The Commission on Elections shall exercise the following powers and functions:

1. Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall.

2. Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and
qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all
contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving
elective barangay officials decided by trial courts of limited jurisdiction.

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

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

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

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

Financial contributions from foreign governments and their agencies to political parties, organizations,
coalitions, or candidates related to elections, constitute interference in national affairs, and, when
accepted, shall be an additional ground for the cancellation of their registration with the Commission, in
addition to other penalties that may be prescribed by law.
6. File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of
voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts
or omissions constituting election frauds, offenses, and malpractices.

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

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

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

Essentially, the COMELEC has general and specific powers. Section 2(1) of Article IX-C partakes of the
general grant of the power to the COMELEC to "enforce and administer all laws and regulations relative
to the conduct of an election, plebiscite, initiative, referendum and recall." The authority given to the
COMELEC under this provision encapsulates all the other powers granted to it under the Constitution.
The intention in providing this general grant of power is to give the COMELEC a wide latitude in dealing
with matters under its jurisdiction so as not to unduly delimit the performance of its functions.
Undoubtedly, the text and intent of this constitutional provision is to give COMELEC all the necessary and
incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful and credible
elections.146 The rest of the enumeration in the mentioned provision constitutes the COMELEC’s
specific powers.

As to the nature of the power exercised, the COMELEC’s powers can further be classified into
administrative, quasi-legislative, quasi-judicial, and, in limited instances, judicial. The quasi-judicial
power of the Commission embraces the power to resolve controversies arising in the enforcement of
election laws and to be the sole judge of all pre-proclamation controversies and of all contests relating to
the elections, returns, and qualifications. Its quasi-legislative power refers to the issuance of rules and
regulations to implement the election laws and to exercise such legislative functions as may expressly be
delegated to it by Congress. Its administrative function refers to the enforcement and administration of
election laws.147

In Baytan v. COMELEC,148 the Court had the occasion to pass upon the classification of the powers being
exercised by the COMELEC, thus:
The COMELEC’s administrative powers are found in Section 2 (1), (3), (4), (5), (6), (7), (8), and (9) of
Article IX-C. The 1987 Constitution does not prescribe how the COMELEC should exercise its
administrative powers, whether en banc or in division. The Constitution merely vests the COMELEC’s
administrative powers in the "Commission on Elections," while providing that the COMELEC "may sit en
banc or in two divisions." Clearly, the COMELEC en banc can act directly on matters falling within its
administrative powers. Indeed, this has been the practice of the COMELEC both under the 1973 and
1987 Constitutions.

On the other hand, the COMELEC’s quasi-judicial powers are found in Section 2 (2) of Article IX-C, to wit:

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

xxxx

(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and
qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all
contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving
elective barangay officials decided by trial courts of limited jurisdiction.149 (Emphasis supplied)

The distinction on the nature of the power being exercised by the COMELEC is crucial to the procedure
which has to be observed so as to stamp an official action with validity. In the exercise of its adjudicatory
or quasi-judicial powers, the Constitution mandates the COMELEC to hear and decide cases first by
division and upon motion for reconsideration, by the COMELEC En Banc.150 Section 3 of Article IX-C
states:

Section 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its
rules of procedure in order to expedite disposition of election cases, including pre-proclamation
controversies. All such election cases shall be heard and decided in division, provided that motions for
reconsideration of decisions shall be decided by the Commission en banc.

On the other hand, matters within the administrative jurisdiction of the COMELEC may be acted upon
directly by the COMELEC En Banc without having to pass through any of its divisions.151
The Issuance of Resolution No. 9513 as an Implement of the Power to Register Political Parties,
Organizations and Coalitions

One of the specific powers granted to the COMELEC is the power to register political parties,
organizations and coalitions articulated in Section 2(5) of Article IX-C of the Constitution, thus:

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

xxxx

The essence of registration cannot be overemphasized. Registration and the formal recognition that
accompanies it are required because of the Constitution’s concern about the character of the
organizations officially participating in the elections.152 Specifically, the process of registration serves to
filter the applicants for electoral seats and segregate the qualified from the ineligible. The purity of this
exercise is crucial to the achievement of orderly, honest and peaceful elections which the Constitution
envisions.

The power to register political parties, however, is not a mere clerical exercise. The COMELEC does not
simply register every party, organization or coalition that comes to its office and manifests its intent to
participate in the elections. Registration entails the possession of qualifications. The party seeking
registration must first present its qualifications before registration will follow as a matter of course.

Similar with all the specific powers of the COMELEC, the power to register political parties, organizations
and coalitions must be understood as an implement by which its general power to enforce and
administer election laws is being realized. The exercise of this power must thus be construed in a manner
that will aid the COMELEC in fulfilling its duty of ensuring that the electoral exercise is held exclusive to
those who possess the qualifications set by the law.

It is pursuant to this duty that the COMELEC found it imperative to promulgate Resolution No. 9513. The
said Resolution seeks to manage the registration of party-list groups, organizations and coalitions that
are aspiring to participate in the 2013 National and Local Elections, with the objective of ensuring that
only those parties, groups or organizations with the requisite character consistent with the purpose of
the party-list system are registered and accredited to participate in the party-list system of
representation.

Plainly, the resolution authorized the COMELEC En Banc to automatically review all pending registration
of party-list groups, organizations and coalitions and to set for summary evidentiary hearings all those
that were previously registered to determine continuing compliance. To effectively carry out the purpose
of the Resolution, the COMELEC suspended Rule 19 of the 1993 COMELEC Rules of Procedure,
specifically the requirement for a motion for reconsideration.

In the implementation of Resolution No. 9513, a number of applicants for registration as party-list group,
organization or coalition were denied registration by the COMELEC En Banc, while several others that
were previously registered and/or accredited were stripped of their status as registered and/or
accredited party-list groups, organizations or coalitions.

Given the circumstances, I agree with the majority that the action of the COMELEC En Banc was well-
within its authority.

The arguments of the petitioners proceed from a feeble understanding of the nature of the powers being
exercised by the COMELEC in which the procedure to be observed depends. Indeed, in a quasi-judicial
proceeding, the COMELEC En Banc does not have the authority to assume jurisdiction without the filing
of a motion for reconsideration. The filing of a motion for reconsideration presupposes that the case had
been heard, passed upon and disposed by the COMELEC Division before the same is subjected to review
of the COMELEC En Banc.

In Dole Philippines Inc. v. Esteva,153 the Court defined quasi-judicial power, to wit:

Quasi-judicial or administrative adjudicatory power on the other hand is the power of the administrative
agency to adjudicate the rights of persons before it. It is the power to hear and determine questions of
fact to which the legislative policy is to apply and to decide in accordance with the standards laid down
by the law itself in enforcing and administering the same law. The administrative body exercises its quasi-
judicial power when it performs in a judicial manner an act which is essentially of an executive or
administrative nature, where the power to act in such manner is incidental to or reasonably necessary
for the performance of the executive or administrative duty entrusted to it. In carrying out their quasi-
judicial functions the administrative officers or bodies are required to investigate facts or ascertain the
existence of facts, hold hearings, weigh evidence, and draw conclusions from them as basis for their
official action and exercise of discretion in a judicial nature. Since rights of specific persons are affected,
it is elementary that in the proper exercise of quasi-judicial power due process must be observed in the
conduct of the proceedings.154
To be clear, the COMELEC exercises quasi-judicial powers in deciding election contests where, in the
course of the exercise of its jurisdiction, it holds hearings and exercises discretion of a judicial nature; it
receives evidence, ascertains the facts from the parties’ submissions, determines the law and the legal
rights of the parties, and on the basis of all these, decides on the merits of the case and renders
judgment.155

However, the registration of political parties, organizations and coalitions stated in Section 2(5) of Article
IX-C of the Constitution involves the exercise of administrative power. The Court has earlier declared in
Baytan that Sections 2 (1), (3), (4), (5), (6), (7), (8) and (9) of Article IX-C pertain to the administrative
powers of the COMELEC.156 It reiterated this pronouncement in Bautista v. COMELEC157 where it
further deliberated on the distinctions between the administrative and quasi-judicial powers of the
COMELEC. And recently, in Magdalo v. COMELEC,158 it made a categorical pronouncement that the
power of the COMELEC to register political parties and ascertain the eligibility of groups to participate in
the elections is purely administrative in character.159

Distinguishing the nature of the power being exercised by the COMELEC is relevant because of the
different set of rules that applies to each. For instance, in Canicosa v. COMELEC,160 the Court stressed
that matters falling under the administrative jurisdiction of the COMELEC may be acted upon directly by
the COMELEC En Banc. On the other hand, Section 3, Article IX-C of the Constitution underscores the
requirement for a motion for reconsideration before the COMELEC En Banc may take action in quasi-
judicial proceedings.

The COMELEC’s determination as to whether a party is a political party entitled to registration is an

exercise of its constitutional power of administering the laws relative to the conduct of elections.161 The
same principle applies in the registration of party-list groups, organizations and coalitions. In the process
of registration, the COMELEC determines whether the applicant possesses all the qualifications required
under the law. There are no contending parties or actual controversy. It is merely the applicant proving
his qualifications to participate in the elections.

The foregoing ratiocination, however, does not suggest that the COMELEC En Banc can forthwith act on
pending petitions for registration and subject previously-registered party list groups, organizations and
coalitions to summary evidentiary hearings to determine continuing compliance simply because it is
administrative in nature. Indeed, it may do so, but only with respect to the latter group.

I distinguish between (1) new or pending petitions for registration (referred to as the first group), and;
(2) previously registered and/or accredited party-list groups, organizations and coalitions (referred to as
the second group).
As regards the first group, the COMELEC En Banc cannot directly act on new petitions for registration as
there is a specific procedure governing the performance of this function. It bears noting that pursuant to
the authority vested in the COMELEC to promulgate rules of procedure in order to expedite the
disposition of cases,162 it drafted the 1993 COMELEC Rules of Procedure which will govern pleadings,
practice and procedure before the Commission. Under Section 32 of the said Rules, the registration of
political parties or organizations is classified under Special Proceedings, together with annulment of
permanent list of voters and accreditation of citizen’s arms of the Commission. In relation to this, Section
3 of Rule 3 states:

Section 3. The Commission Sitting in Divisions - The Commission shall sit in two (2) Divisions to hear and
decide protests or petitions in ordinary actions, special actions, special cases, provisional remedies,
contempt, and special proceedings except in accreditation of citizens’ arm of the Commission. (Emphasis
ours)

The same rule applies to the registration of party-list groups, organizations or coalitions. Thus, petitions
for registration of party-list groups, organizations and coalitions are first heard by the COMELEC Division
before they are elevated to the En Banc on motion for reconsideration. It is this requirement for a
motion for reconsideration of the resolutions of the COMELEC Division granting new petitions for
registration that the COMELEC suspended in Resolution No. 9513. In doing so, the COMELEC resorted to
Section 4, Rule 1 of the 1993 COMELEC Rules of Procedure which reads:

Section 4. Suspension of the Rules. - In the interest of justice and in order to obtain speedy disposition of
all matters pending before the Commission, these rules or any portion thereof may be suspended by the
Commission.

Surely, the suspension of the rule will serve the greater interest of justice and public good since the
objective is to purge the list of registrants of those who are not qualified to participate in the elections of
party-list representatives in Congress. Ultimately, it will help secure the electoral seats to the intended
beneficiaries of RA 7941 and, at the same time, guard against fly-by-night groups and organizations that
are seeking for the opportune time to snatch a chance. By virtue of the suspension of the requirement
for motion for reconsideration, the COMELEC En Banc may then automatically review pending petitions
for registration and determine if the qualifications under the law are truly met. It is a measure that was
pursued in order that the COMELEC may fulfill its duty to ensure the purity of elections. And, as the rules
of procedure are designed to facilitate the COMELEC’s performance of its duties, it must never be a
stumbling block in achieving the very purpose of its creation.
With respect to the second group, the COMELEC En Banc may directly order the conduct of summary
evidentiary hearings to determine continuing compliance considering that there is no specific procedure
on this matter. The petitioners cannot invoke Section 3, Rule 3 of the 1993 COMELEC Rules of Procedure
since this provision relates only to new petitions for registration. Absent a special rule or procedure, the
COMELEC En Banc may directly act or perform an otherwise administrative function, consistent with our
pronouncement in Canicosa.

The authority of the COMELEC En Banc to subject previously-registered and/or accredited party-list
groups, organizations and coalitions to summary evidentiary hearing emanates from its general power to
enforce and administer all laws and regulations relative to the conduct of an election163 and duty to
ensure "free, orderly, honest, peaceful and credible elections."164 Part and parcel of this duty is the
maintenance of a list of qualified candidates. Correlative to this duty of the COMELEC is the duty of the
candidate or, in this case, the registered party-list groups, organizations or coalitions to maintain their
qualifications.

Consistent with the principle that the right to hold public office is a privilege, it is incumbent upon
aspiring participants in the party-list system of representation to satisfactorily show that they have the
required qualifications stated in the law and prevailing jurisprudence. Specifically, a party-list group or
organization applying for registration in the first instance must present sufficient evidence to establish its
qualifications. It is only upon proof of possession of qualifications that registration follows.

The process, however, does not end with registration. Party-list groups and organizations that are
previously allowed registration and/or accreditation are duty-bound to maintain their qualifications.

In Amores v. House of Representatives Electoral Tribunal,165 the Court emphasized:

Qualifications for public office are continuing requirements and must be possessed not only at the time
of appointment or election or assumption of office but during the officer's entire tenure. Once any of the
required qualifications is lost, his title may be seasonably challenged.166

It can be gathered from the foregoing that the fact that a candidate who was allowed to participate in
the elections and hold office does not give him a vested right to retain his position notwithstanding loss
of qualification. The elective official must maintain his qualifications lest he loses the right to the office
he is holding.

Further, the fact that a candidate was previously allowed to run or hold public office does not exempt
him from establishing his qualifications once again in case he bids for reelection. He must maintain and
attest to his qualifications every time he is minded to join the electoral race. Thus, he is required to file a
certificate of candidacy even if he is an incumbent elective official or previously a candidate in the
immediately preceding elections.

Similar to individual candidates, registered party-list groups, organizations and coalitions must also
establish their continuing compliance with the requirements of the law which are specific to those
running under the party-list system of representation. Registration does not vest them the perpetual
right to participate in the election. The basis of the right to participate in the elections remains to be the
possession of qualifications. Resolution No. 9513 is a formal recognition of the COMELEC’s duty to
ensure that only those who are qualified must be allowed to run as party-list representative. It cannot be
defeated by a claim of previous registration.

Therefore, it is my view that the COMELEC cannot be estopped from cancelling existing registration
and/or accreditation in case the concerned party-list group or organization failed to maintain its
qualifications. Being the authority which permits registration and/or accreditation, it also has the power
to cancel the same in the event that the basis of the grant no longer exists.

Inapplicability of the Doctrine of Res Judicata

Similarly, the COMELEC cannot be precluded from reviewing pending registration and existing
registration and/or accreditation of party-list groups, organizations and coalitions on the ground of res
judicata. It has been repeatedly cited in a long line of jurisprudence that the doctrine of res judicata
applies only to judicial or quasi-judicial proceedings, not to the exercise of administrative powers.167

Moreover, the application of the doctrine of res judicata requires the concurrence of four (4) elements,
viz.: (1) the former judgment or order must be final; (2) it must be a judgment or order on the merits,
that is, it was rendered after a consideration of the evidence or stipulations submitted by the parties
during the trial of the case; (3) it must have been rendered by a court having jurisdiction over the subject
matter and the parties; and (4) there must be, between the first and second actions, identity of parties,
subject matter and causes of action.168

Here, the resolutions of the COMELEC Division, allowing the registration of the applicant party-list groups
and organizations do not partake of a final judgment or order. A final judgment or order is one that
finally disposes of a case, leaving nothing more to be done by the Court in respect thereto, e.g. an
adjudication on the merits which, on the basis of the evidence presented at the trial, declares
categorically what the rights and obligations of the parties are and which party is right. Once rendered,
the task of the Court is ended, as far as deciding the controversy or determining the rights and liabilities
of the litigants is concerned.169
The resolutions of the COMELEC Division cannot be considered an adjudication on the merits since they
do not involve a determination of the rights and liabilities of the parties based on the ultimate facts
disclosed in the pleadings or in the issues presented during the trial.170 They are simply recognition by
the COMELEC that the applicant party-list or organization possesses the qualifications for registration.
They do not involve the settlement of conflicting claims; it is merely an initiatory procedure for the
conduct of elections. On the other hand, previous registration and/or accreditation only attests to the
fact that the concerned party-list group, organization or coalition satisfactorily proved its qualifications to
run as party-list representative in the immediately preceding elections. It does not, however, create a
vested right in favor of the registered party-list group, organization or coalition to participate in the
succeeding elections.

The resolutions of the COMELEC Division cannot also become final as to exempt the party-list group or
organization from proving his qualifications in the succeeding elections. As in individual candidate, a
party-list group, organization or coalition desiring to participate in the elections must possess the
required qualifications every time it manifests its intent to participate in the elections. It must prove and
attest to its possession of the required qualifications every time it bids for election.

The inapplicability of the doctrine of res judicata is even made more apparent by the fact that the group,
organization or coalition which was denied registration may still apply for registration in succeeding
elections and even be allowed registration provided that the qualifications are met.

The same holds true with previously registered and/or accredited party-list group, organization or
coalition which was stripped of its registration and/or accreditation.

Procedural due process was properly

observed.

There is even no merit in the petitioners’ claim that their right to procedural due process was violated by
the COMELEC’s automatic review and conduct of summary evidentiary hearings under Resolution No.
9513.

As regards the first group, I have explained why I deem the COMELEC’s suspension of its own rules on
motions for reconsideration justified, given its duty to ensure that votes cast by the electorate in the
party-list elections will only count for qualified party-list groups, in the end that the system’s ideals will
be realized.

Equally important, the settled rule in administrative proceedings is that a fair and reasonable
opportunity to explain one’s side satisfies the requirements of due process. Its essence is embodied in
the basic requirements of notice and the real opportunity to be heard.171

Consistent with the foregoing, Section 6 of RA 7941 only commands the minimum requirements of due
notice and hearing to satisfy procedural due process in the refusal and/or cancellation of a party,
organization or coalition’s registration under the party-list system. It reads:

Section 6. Refusal and/or Cancellation of Registration. The COMELEC may, motu proprio or upon verified
complaint of any interested party, refuse or cancel, after due notice and hearing, the registration of any
national, regional or sectoral party, organization or coalition on any of the following grounds:

x x x x (Emphasis ours)

The petitioners then cannot validly claim that they were denied of their right to procedural process. We
shall not disregard the proceedings that ensued before the COMELEC’s divisions, before whom the
groups were given due notice and the ample opportunity to present and substantiate their plea for
registration. The COMELEC En Banc’s resolution to later review the resolutions of its divisions did not
render insignificant such due process already accorded to the groups, especially as we consider that the
En Banc decided on the basis of the evidence submitted by the groups before the divisions, only that it
arrived at factual findings and conclusions that differed from those of the latter.

The second group’s right to procedural process was also unimpaired, notwithstanding the COMELEC’s
conduct of the summary evidentiary hearings for the purpose of determining the parties’ continuing
compliance with rules on party-list groups. The notice requirement was satisfied by the COMELEC
through its issuance of the Order dated August 2, 2012172, which notified the party-list groups of the
Commission’s resolve to conduct summary evidentiary hearings, the dates thereof, and the purpose for
which the hearings shall be conducted. The specific matters that are expected from them by the
Commission are also identified in the Order, as it provides:

To simplify the proceedings, the party-list groups or organizations thru counsel/s shall submit the
following:
1. The names of witness/es who shall be the Chairperson, President or Secretary General of the party-list
groups, organization or coalition;

2. Judicial Affidavit/s of the witness/es to be submitted at prior to the scheduled hearing; and

3. Other documents to prove their continuing compliance with the requirements of R.A. No. 7941 and
the guidelines in the Ang Bagong Bayani case.173 (Emphasis supplied)

There is then no merit in most petitioners’ claim that they were not informed of the grounds for which
their existing registration and/or accreditation shall be tested, considering that the parameters by which
the parties’ qualifications were to be assessed by the COMELEC were explained in the Order.

That the parties were duly notified is further supported by their actual participation in the scheduled
hearings and their submission of evidence they deemed sufficient which, in turn, satisfied the
requirement on the opportunity to be heard.

Substantive Aspect

The common contention raised in the consolidated petitions is that the COMELEC erred in assessing their
qualifications which eventually led to the denial of their petitions for registration and cancellation of
their registration and/or accreditation.

A deliberation on the purpose and contemplation of the relevant laws and prevailing jurisprudence is
imperative.

The Party-List System of

Representation

Contrary to the view of the majority, it is my staunch position that the party-list system, being a
complement of the social justice provisions in the Constitution, is primarily intended to benefit the
marginalized and underrepresented; the ideals of social justice permeates every provision in the
Constitution, including Section 5(2), Article VI on the party-list system.
The party-list system is a social justice tool designed not only to give more law to the great masses of our
people who have less in life, but also to enable them to become veritable lawmakers themselves,
empowered to participate directly in the enactment of laws designed to benefit them.174 It is not simply
a mechanism for electoral reform. To simply regard it as a mere procedure for reforming the already
working and existing electoral system is a superficial reading of RA 7941 and the Constitution, from
which the law breathed life. The idea is that by promoting the advancement of the underprivileged and
allowing them an opportunity to grow, they can rise to become partners of the State in pursuing greater
causes.

The ideals of social justice cannot be more emphatically underscored in the 1987 Constitution. The
strong desire to incorporate and utilize social justice as one of the pillars of the present Constitution was
brought forth by the intent to perpetually safeguard democracy against social injustices, desecration of
human rights and disrespect of the laws which characterized the dark pages of our history. It is
reminiscent of the unified and selfless movement of the people in EDSA who, minuscule in power and
resources, braved the streets and reclaimed their freedom from the leash of dictatorship. The gallantry
and patriotism of the masses and their non-negotiable demand to reclaim democracy are the
inspirations in the drafting of our Constitution.

The ambition of the framers of the Constitution for a state which recognizes social justice at the forefront
of its policies brought them to propose a separate article on social justice and human rights. Initially, the
proposed provision defined social justice as follows:

SOCIAL JUSTICE

SECTION 1. Social Justice, as a social, economic, political, moral imperative, shall be the primary
consideration of the State in the pursuit of national development. To this end, Congress shall give the
highest priority to the formulation and implementation of measures designed to reduce economic and
political inequalities found among citizens, and to promote the material structural conditions which
promote and enhance human dignity, protect the inalienable rights of persons and sectors to health,
welfare and security, and put the material wealth and power of the community at the disposal of the
common good.

SECTION 2. Towards these ends, the State shall regulate the acquisition, ownership, use and disposition
of property and its fruits, promote the establishment of self-reliant, socio-political and economic
structures determined by the people themselves, protect labor, rationalize the use and disposition of
land, and ensure the satisfaction of the basic material needs of all.175 (Emphasis supplied)
In her sponsorship speech, Commissioner Nieva delved into the primacy of the promotion of social
justice in the ideals that the Constitution will carry. She explained:

Our Committee hopes that social justice will be the centerpiece of the 1986 Constitution. The rationale
for this is that social justice provides the material and social infrastructure for the realization of basic
human rights the enhancement of human dignity and effective participation in democratic processes.
Rights, dignity and participation remain illusory without social justice.

Our February 1986 Revolution was not merely against the dictatorship nor was it merely a fight for the
restoration of human rights; rather, this popular revolution was also a clamor for a more equitable share
of the nation's resources and power, a clamor which reverberated in the many public hearings which the
Constitutional Commission conducted throughout the country.

If our 1986 Constitution would enshrine the people's aspirations as dramatically expressed in the
revolution and ensure the stability, peace and progress of our nation, it must provide for social justice in
a stronger and more comprehensive manner than did the previous Constitutions.

xxxx

In Sections 1 and 2, the provisions mandate the State to give social justice the highest priority to
promote equality in the social, economic and political life of the nation through the redistribution of our
resources, wealth and power for the greater good.176

Further in the deliberations, Commissioner Bennagen remarked on the aspects of social justice, viz:

MR. BENNAGEN: x x x x

We did not fail to incorporate aspects of attitudinal change, as well as structural change, and these are
fairly evident in the first two sections. As indicated in Section 1, we did emphasize that social justice
should be a social, economic, political and moral imperative. The moral component is important because
we feel that a justice provision should be on the side of the poor, the disadvantaged, the so-called
deprived and the oppressed. This is a point that has been raised a number of times especially by social
scientists. Specifically, I would like to mention Dr. Mahar Mangahas who, in his extensive studies on
social justice, feels that the State itself has been a major source of injustice and that, therefore, the State
should be able to correct that and must assume a moral stance in relation to the poor, the deprived and
the oppressed, a moral stance that we feel should also permeate the bureaucracy, the technocracy and
eventually, with the changes in structures, also the whole of our Philippine society.177 (Emphasis ours)

Pursuant to the ends discussed by the framers of the Constitution, they came up with Article XIII which
specifically deals with Social Justice and Human Rights. Section 1, Article XIII of the Constitution carries
the positive command to the Congress to uphold social justice. It reads:

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

xxxx

One of the modes by which the Constitution seeks to achieve social justice is through the introduction of
the party-list system. Sections 5(1) and (2), Article VI thereof provide:

Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty
members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their
respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided
by law, shall be elected through a party-list system of registered national, regional, and sectoral parties
or organizations.

(2) The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party-list. For three consecutive terms after the ratification of
this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided
by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities,
women, youth, and such other sectors as may be provided by law, except the religious sector. (Emphasis
ours)

Considering that the provisions on party-list system of representation are not self-executing, the
Congress enacted RA 7941. The said law defined the parameters of the party-list system, the procedural
guidelines and the qualifications of those intending to participate in the exercise. In enacting RA 7941,
the legislature did not mean to depart from the impetus which impelled the members of the
Constitutional Commission to provide for this scheme of representation -- social justice. The underlying
principle remains to be the reduction of political inequality by equitably diffusing wealth and political
power. Certainly, there could be no other intended beneficiaries for this provision than the powerless
and underprivileged. It could not have been intended for those who already have the power and
resources who may be lesser in number but are in command of the machinery of the government.

As so fervently declared in the case of Ang Bagong Bayani, the party-list system of is a social justice
mechanism, designed to distribute political power. In the said case, the Court held:

The party-list system is a social justice tool designed not only to give more law to the great masses of our
people who have less in life, but also to enable them to become veritable lawmakers themselves,
empowered to participate directly in the enactment of laws designed to benefit them. It intends to make
the marginalized and the underrepresented not merely passive recipients of the State's benevolence,
but active participants in the mainstream of representative democracy.178

The objective to hold the party-list system for the benefit of the marginalized and underrepresented is
expressed in clear language of Section 2 of RA 7941. It reads:

Section 2. Declaration of policy. The State shall promote proportional representation in the election of
representatives to the House of Representatives through a party-list system of registered national,
regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens
belonging to marginalized and under-represented sectors, organizations and parties, and who lack well-
defined political constituencies but who could contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a whole, to become members of the House of
Representatives. Towards this end, the State shall develop and guarantee a full, free and open party
system in order to attain the broadest possible representation of party, sectoral or group interests in the
House of Representatives by enhancing their chances to compete for and win seats in the legislature,
and shall provide the simplest scheme possible. (Emphasis ours)

A reading of Section 2 shows that the participation of registered national, regional and sectoral parties,
organizations and coalitions in the party-list elections are qualified by three (3) limiting characteristics:
(1) they must consist of Filipino citizens belonging to the marginalized and underrepresented sectors,
organizations or coalitions; (2) who lack well-defined political constituencies, (3) but who could
contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a
whole. The term "marginalized and underrepresented" effectively limits the party-list system to sectors
which directly need support and representation. The law could not have deemed to benefit even those
who are already represented in the House of Representatives lest it results to a wider gap between the
powerful and the underprivileged. In empowering the powerless, the law must necessarily tilt its
partiality in favor of the marginalized and underrepresented if genuine social justice must be achieved.
The favor of the law towards the marginalized and underrepresented, which was first articulated by
former Chief Justice Artemio Panganiban in Ang Bagong Bayani, was later affirmed and reiterated by no
less than another former Chief Justice of this Court, Reynato S. Puno, in his erudite separate opinion in
BANAT v. COMELEC.179 He forcefully articulated:

History has borne witness to the struggle of the faceless masses to find their voice, even as they are
relegated to the sidelines as genuine functional representation systemically evades them. It is by reason
of this underlying premise that the party-list system was espoused and embedded in the Constitution,
and it is within this context that I register my dissent to the entry of major political parties to the party-
list system.

xxxx

x x x With all due respect, I cannot join this submission. We stand on solid grounds when we interpret
the Constitution to give utmost deference to the democratic sympathies, ideals and aspirations of the
people. More than the deliberations in the Constitutional Commission, these are expressed in the text of
the Constitution which the people ratified. Indeed, it is the intent of the sovereign people that matters in
interpreting the Constitution. x x x

xxxx

Everybody agrees that the best way to interpret the Constitution is to harmonize the whole instrument,
its every section and clause. We should strive to make every word of the fundamental law operative and
avoid rendering some words idle and nugatory. The harmonization of Article VI, Section 5 with related
constitutional provisions will better reveal the intent of the people as regards the party-list system. Thus,
under Section 7 of the Transitory Provisions, the President was permitted to fill by appointment the seats
reserved for sectoral representation under the party-list system from a list of nominees submitted by the
respective sectors. This was the result of historical precedents that saw how the elected Members of the
interim Batasang Pambansa and the regular Batasang Pambansa tried to torpedo sectoral representation
and delay the seating of sectoral representatives on the ground that they could not rise to the same
levelled status of dignity as those elected by the people. To avoid this bias against sectoral
representatives, the President was given all the leeway to "break new ground and precisely plant the
seeds for sectoral representation so that the sectoral representatives will take roots and be part and
parcel exactly of the process of drafting the law which will stipulate and provide for the concept of
sectoral representation." Similarly, limiting the party-list system to the marginalized and excluding the
major political parties from participating in the election of their representatives is aligned with the
constitutional mandate to "reduce social, economic, and political inequalities, and remove cultural
inequalities by equitably diffusing wealth and political power for the common good"; the right of the
people and their organizations to effective and reasonable participation at all levels of social, political,
and economic decision-making; the right of women to opportunities that will enhance their welfare and
enable them to realize their full potential in the service of the nation; the right of labor to participate in
policy and decision-making processes affecting their rights and benefits in keeping with its role as a
primary social economic force; the right of teachers to professional advancement; the rights of
indigenous cultural communities to the consideration of their cultures, traditions and institutions in the
formulation of national plans and policies, and the indispensable role of the private sector in the
national economy.

xxxx

In sum, the evils that faced our marginalized and underrepresented people at the time of the framing of
the 1987 Constitution still haunt them today. It is through the party-list system that the Constitution
sought to address this systemic dilemma. In ratifying the Constitution, our people recognized how the
interests of our poor and powerless sectoral groups can be frustrated by the traditional political parties
who have the machinery and chicanery to dominate our political institutions. If we allow major political
parties to participate in the party-list system electoral process, we will surely suffocate the voice of the
marginalized, frustrate their sovereignty and betray the democratic spirit of the Constitution. That
opinion will serve as the graveyard of the party-list system.

The intent of the Constitution to keep the party-list system exclusive to the marginalized and
underrepresented sectors is then crystal clear. To hold otherwise is to frustrate the spirit of the law and
the sacred intention to hold inviolable the safeguards of social justice embedded in the Constitution.

In the same line, RA 7941 must not be interpreted as merely a mode for electoral reform. It could not
have been that too simplistic. Far from being merely an electoral reform, the party-list system is one
concrete expression of the primacy of social justice in the Constitution. It is well to remember that RA
7941 was only implementing the specific mandate of the Constitution in Section 5, Article VI. It should
not be disengaged from the purpose of its enactment. The purpose of the mentioned provision was not
simply to reform the electoral system but to initiate the equitable distribution of political power. It aims
to empower the larger portion of the populace who sulk in poverty and injustice by giving them a chance
to participate in legislation and advance their causes.

The parameters under RA 7941 were also further elaborated by the Court in Ang Bagong Bayani, which
outlined the eight-point guidelines for screening party-list participants. Succinctly, the guidelines pertain
to the qualifications of the (1) sector, (2) party-list group, organization or coalition, and (3) nominee.
These key considerations determine the eligibility of the party-list group, organization or coalition to
participate in the party-list system of representation. Thus, for purposes of registration and continuing
compliance, three (3) basic questions must be addressed:
(1) Is the sector sought to be represented marginalized and underrepresented?

(2) Is the party, organization or coalition qualified to represent the marginalized and underrepresented
sector?

(3) Are the nominees qualified to represent the marginalized and underrepresented party, organization
or coalition?

In seriatim, I shall expound on what I deem should be the key considerations for qualifying as a party-list
group, organization or coalition.

The sector must be marginalized and underrepresented.

Section 2 of RA 7941 underscored the policy of the State in enacting the law. Tersely, the state aims to
promote proportional representation by means of a Filipino-style party-list system, which will enable the
election to the House of Representatives of Filipino citizens,

1) who belong to the marginalized and underrepresented sectors, organizations and parties; and

2) who lack well-defined constituencies; but

3) who could contribute to the formulation and enactment of appropriate legislation that will benefit the
nation as a whole.180

RA 7941 gives emphasis on the requirement that the party, organization or coalition must represent a
marginalized and underrepresented sector. A marginalized and underrepresented sector is a group of
individuals who, by reason of status or condition, are drawn towards the bottom of the social strata.
Remote from the core of institutional power, their necessities are often neglected and relegated to the
least of the government’s priorities. They endure inadequacies in provisions and social services and are
oftentimes victims of economic, social and political inequalities.
Section 5 of RA 7941 enumerates the sectors that are subsumed under the term "marginalized and
underrepresented" and may register as a party-list group, organization or coalition. It states:

SEC. 5. Registration. Any organized group of persons may register as a party, organization or coalition for
purposes of the party-list system by filing with the COMELEC not later than ninety (90) days before the
election a petition verified by its president or secretary stating its desire to participate in the party-list
system as a national, regional or sectoral party or organization or a coalition of such parties or
organizations, attaching thereto its constitution, bylaws, platform or program of government, list of
officers, coalition agreement and other relevant information as the COMELEC may require: Provided,
That the sectors shall include labor peasant, fisherfolk, urban poor, indigenous cultural communities,
elderly, handicapped, women, youth, veterans, overseas workers, and professionals. (Emphasis ours)

Based on the provision, there are at least twelve (12) sectors that are considered marginalized and
underrepresented: labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and professionals. The enumeration is,
however, not exclusive. During the drafting of our Constitution, the members of the Commission
expressed reluctance to provide an enumeration of the marginalized and underrepresented sectors
because of their apprehension that the longer the enumeration, the more limiting the law becomes.181
Instead of an enumeration, then Commissioner Jaime Tadeo suggested the criteria by which the
determination of which sectors are marginalized can be based, viz:

1. The number of people belonging to the sector;

2. The extent of marginalization, exploitation and deprivation of social and economic rights suffered by
the sector;

3. The absence of representation in the government, particularly in the legislature, through the years;

4. The sector’s decisive role in production and in bringing about the basic social services needed by the
people.182

The Constitutional Commission saw it fit to provide a set of standards which will approximate the sectors
that the Constitution regards as marginalized and underrepresented and evaded a definite enumeration.
The reason is that a specific enumeration is antithetical to the purpose of the party-list system. The
party-list system of representation endeavors to empower the underprivileged sectors, tap their innate
potentials and hone them to become productive and self-sustaining segments of the society. Sooner,
they are expected to graduate from their status as marginalized and underrepresented. During the
process, some formerly self-sufficient sectors may drift to the bottom and regress to become the new
marginalized sectors. The resilience in the enumeration of the sectors accommodates this eventuality.

Qualifications of the Party-List

Group, Organization or Coalition

Among the eight (8) points mentioned in the guidelines for screening party-list participants in Ang
Bagong Bayani, five (5) pertain to the qualifications of the party-list group, organization or coalition. The
first point in the enumeration reads:

First, the political party, sector, organization or coalition must represent the marginalized and
underrepresented groups identified in Section 5 of RA 7941. In other words, it must show — through its
constitution, articles of incorporation, by laws, history, platform of government and track record — that
it represents and seeks to uplift marginalized and underrepresented sectors. Verily, majority of its
membership should belong to the marginalized and underrepresented. And it must demonstrate that in
a conflict of interests, it has chosen or is likely to choose the interest of such sectors.183

Certainly, it takes more than a mere claim or desire to represent the marginalized and underrepresented
to qualify as a party-list group. There must be proof, credible and convincing, to demonstrate the group’s
advocacy to alleviate the condition of the sector.

The rigid requirement for the presentation of evidence showing the party’s relation to the causes of the
sector goes to the uniqueness of the party-list system of representation. In the party-list system of
representation, the candidates are parties, organizations and coalitions and not individuals. And while an
individual candidate seeks to represent a district or particular constituency, a party-list group vying for
seats in the House of Representatives must aim to represent a sector. It is thus important to ascertain
that the party-list group, organization or coalition reflects the ideals of the sector in its constitution and
by-laws. It must have an outline of concrete measures it wishes to undertake in its platform of
government. Moreover, its track record must speak of its firm advocacy towards uplifting the
marginalized and underrepresented by undertaking activities or projects directly addressing the
concerns of the sector.

It is likewise imperative for the party-list group to show that it effectively represents the marginalized
and underrepresented. While a party-list group is allowed to represent various sectors, it must prove,
however, that it is able to address the multifarious interests and concerns of all the sectors it represents.
That a multi-sectoral party-list group undertakes projects and activities that only address the interests of
some of the sectors, neglecting the concerns of the other marginalized and underrepresented sectors it
supposedly represents, is nugatory to the objective of giving a meaningful and effective representation
to the marginalized and underrepresented.

Equally important is that the majority of the membership of the party-list group, organization or coalition
belong to the marginalized and underrepresented sector. This means that a majority of the members of
the sector must actually possess the attribute which makes the sector marginalized. This is so because
the primary reason why party-list groups are even allowed to participate in the elections of the members
of the House of Representatives, who are normally elected by district, is to give a collective voice to the
members of the sectors who are oftentimes unheard or neglected. This intention is put to naught if at
least the majority of the members of the party-list do not belong to the same class or sector. Thus, it is
incumbent upon the party-list applicant to present all the evidence necessary to establish this fact.
Without a convincing proof of legitimate membership of a majority of the marginalized, the COMELEC
has no reason to believe otherwise and may thus deny a petition for registration or cancel an existing
registration.

The second guideline in Ang Bagong Bayani underscores the policy of the state to hold the party-list
system of representation exclusive to the marginalized and underrepresented, a distinguishing feature
which sets our system apart from systems of party-list representation in other jurisdictions. The
guideline states:

Second, while even major political parties are expressly allowed by RA 7941 and the Constitution to
participate in the party-list system, they must comply with the declared statutory policy of enabling
"Filipino citizens belonging to marginalized and underrepresented sectors . . . to be elected to the House
of Representatives." x x x184

The second guideline was an offshoot of the declaration of policy in RA 7941. Specifically, Section 2 of
the statute emphasized the state’s policy of promoting proportional representation in the election of
representatives to the House of Representatives through a party-list system of registered national,
regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens
belonging to the marginalized and underrepresented sectors, organizations and parties, x x x to become
members of the House of Representatives. As it is exclusively for the marginalized and
underrepresented, it is an inflexible requirement that the group applying for registration must represent
a sector. The rationale behind this qualification was highlighted in Ang Bagong Bayani, thus:

It is ironic, therefore, that the marginalized and underrepresented in our midst are the majority who
wallow in poverty, destitution and infirmity. It was for them that the party-list system was enacted — to
give them not only genuine hope, but genuine power; to give them the opportunity to be elected and to
represent the specific concerns of their constituencies; and simply to give them a direct voice in
Congress and in the larger affairs of the State. In its noblest sense, the party-list system truly empowers
the masses and ushers a new hope for genuine change. Verily, it invites those marginalized and
underrepresented in the past — the farm hands, the fisher folk, the urban poor, even those in the
underground movement — to come out and participate, as indeed many of them came out and
participated during the last elections. The State cannot now disappoint and frustrate them by disabling
and desecrating this social justice vehicle.185

RA 7941 also provides that a party desiring to register and participate in the party-list elections must
represent a marginalized and underrepresented sector. While the law did not restrict the sectors that
may be subsumed under the term "marginalized and underrepresented", it must be construed in
relation to the sectors enumerated in RA 7941, the enabling law of Section 5, Article VI of the
Constitution, to wit: labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and professionals. Based on the foregoing, a
mere association of individuals espousing shared "beliefs" and "advocacies" cannot qualify as a
marginalized and underrepresented sector.

The term "marginalized and underrepresented" is descriptive of the sector that may join the party-list
elections. A sector pertains to a "sociological, economic or political subdivision of the society"186 which
consists of individuals identified by the activity, status or condition, or attribute that specifically pertains
to them. It is identified by a common characteristic pertaining to the individuals composing the same.

On the other hand, an association of individuals espousing a common belief or advocacy is aptly called a
group, not a sector. Specifically, advocacy groups consist of individuals engaged in the "act of pleading
for, supporting, or recommending active espousal"187 of a cause. Contrary to a sector which is identified
by a common characteristic of the members, advocacy groups are identified by the causes that they
promote. The members coalesced to pursue causes or fulfil patriotic ends that do not specifically pertain
to them, but even to those who are not part of their circle.

Certainly, it takes far more than beliefs and advocacies before a group of individuals can constitute a
sector. There are underlying sociological and economic considerations in the enumeration of the sectors
in the Constitution and RA 7941. These considerations must be strictly observed lest we deviate from the
objectives of RA 7941 of providing a meaningful and effective representation to the marginalized and
underrepresented. To relegate the contemplation of the law of what is a "marginalized and
underrepresented sector" to a mere association of individuals espousing a shared belief or advocacy, is
to disregard the essence of the party-list system of representation and the intent of the law to hold the
system exclusive for the marginalized and underrepresented.

Consistent with the purpose of the law, political parties may apply for registration and/or accreditation
as a party-list provided that they are organized along sectoral lines.188 This pronouncement in Ang
Bagong Bayani was expounded in BANAT by referring to the exchange between the members of the
Constitutional Commission, thus:

MR. MONSOD. Madam President, I just want to say that we suggested or proposed the party list system
because we wanted to open up the political system to a pluralistic society through a multiparty system. x
x x We are for opening up the system, and we would like very much for the sectors to be there. That is
why one of the ways to do that is to put a ceiling on the number of representatives from any single party
that can sit within the 50 allocated under the party list system. x x x.

xxx

MR. MONSOD. Madam President, the candidacy for the 198 seats is not limited to political parties. My
question is this: Are we going to classify for example Christian Democrats and Social Democrats as
political parties? Can they run under the party list concept or must they be under the district legislation
side of it only?

MR. VILLACORTA. In reply to that query, I think these parties that the Commissioner mentioned can field
candidates for the Senate as well as for the House of Representatives. Likewise, they can also field
sectoral candidates for the 20 percent or 30 percent, whichever is adopted, of the seats that we are
allocating under the party list system.

MR. MONSOD. In other words, the Christian Democrats can field district candidates and can also
participate in the party list system?

MR. VILLACORTA. Why not? When they come to the party list system, they will be fielding only sectoral
candidates.

MR. MONSOD. May I be clarified on that? Can UNIDO participate in the party list system?

MR. VILLACORTA. Yes, why not? For as long as they field candidates who come from the different
marginalized sectors that we shall designate in this Constitution.

MR. MONSOD. Suppose Senator Tañada wants to run under BAYAN group and says that he represents
the farmers, would he qualify?
MR. VILLACORTA. No, Senator Tañada would not qualify.

MR. MONSOD. But UNIDO can field candidates under the party list system and say Juan dela Cruz is a
farmer. Who would pass on whether he is a farmer or not?

MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin ito. Political parties, particularly
minority political parties, are not prohibited to participate in the party list election if they can prove that
they are also organized along sectoral lines.

MR. MONSOD. What the Commissioner is saying is that all political parties can participate because it is
precisely the contention of political parties that they represent the broad base of citizens and that all
sectors are represented in them. Would the Commissioner agree?

MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang political party, it will
dominate the party list at mawawalang saysay din yung sector. Lalamunin mismo ng political parties ang
party list system. Gusto ko lamang bigyan ng diin ang "reserve." Hindi ito reserve seat sa marginalized
sectors. Kung titingnan natin itong 198 seats, reserved din ito sa political parties.

MR. MONSOD. Hindi po reserved iyon kasi anybody can run there. But my question to Commissioner
Villacorta and probably also to Commissioner Tadeo is that under this system, would UNIDO be banned
from running under the party list system?

MR. VILLACORTA. No, as I said, UNIDO may field sectoral candidates. On that condition alone, UNIDO
may be allowed to register for the party list system.

MR. MONSOD. May I inquire from Commissioner Tadeo if he shares that answer?

MR. TADEO. The same.

MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral lines.189 (Emphasis supplied)
In his erudite separate opinion in BANAT, former Chief Justice Reynato S. Puno expressed his approval of
keeping the party-list system of representation exclusive to the marginalized and underrepresented
sectors. To further safeguard the sanctity of the purpose of the law, he conveyed his vehement objection
to the participation of major political parties in the party-list system of representation because of the
likelihood that they will easily trump the organizations of the marginalized. He opined:

Similarly, limiting the party-list system to the marginalized and excluding the major political parties from
participating in the election of their representatives is aligned with the constitutional mandate to
"reduce social, economic, and political inequalities, and remove cultural inequalities by equitably
diffusing wealth and political power for the common good"; the right of the people and their
organizations to effective and reasonable participation at all levels of social, political, and economic
decision-making; the right of women to opportunities that will enhance their welfare and enable them
to realize their full potential in the service of the nation; the right of labor to participate in policy and
decision-making processes affecting their rights and benefits in keeping with its role as a primary social
economic force; the right of teachers to professional advancement; the rights of indigenous cultural
communities to the consideration of their cultures, traditions and institutions in the formulation of
national plans and policies, and the indispensable role of the private sector in the national economy.

xxxx

There is no gainsaying the fact that the party-list parties are no match to our traditional political parties
in the political arena. This is borne out in the party-list elections held in 2001 where major political
parties were initially allowed to campaign and be voted for. The results confirmed the fear expressed by
some commissioners in the Constitutional Commission that major political parties would figure in the
disproportionate distribution of votes: of the 162 parties which participated, the seven major political
parties made it to the top 50.190 (Citations omitted)

By a vote of 8-7, the Court decided in BANAT to revert to its ruling in the 2000 case Veterans Federation
Party v. Comelec191 that major political parties are barred from participating in the party-list elections,
directly or indirectly.

Consistent with our pronouncement in BANAT, I maintain that major political parties have advantages
over minority political parties and sectoral parties in the party-list elections. By their broad constituency
and full resources, it is easier for these major political parties to obtain the required percentage of votes
for party-list seats, a circumstance which, in turn, only weakens the minority parties’ chance to be
elected.
I, however, agree with the view of the majority that it is unjustified to absolutely disqualify from the
party-list system the major political parties solely by reason of their classification as such. Nonetheless,
the privilege to be accorded to them shall not be without reasonable restrictions. Political parties shall
only be allowed to participate in the party-list system if they do not field candidates in the election of
legislative district representatives. The justification therefor is reasonable. The party-list system was
adopted by the state purposely to enable parties which, by their limited resources and citizens base per
district, find difficulty in placing representatives in Congress. Major political parties that field candidates
for district representatives can do so with ease, given that they satisfy the standards set by Republic Act
No. 7166, as amended by Republic Act No. 9369, for their classification, to wit: (a) the established record
of the said parties, coalition of groups that now compose them, taking into account, among other things,
their showing in past elections; (b) the number of incumbent elective officials belonging to them ninety
(90) days before the election; (c) their identifiable political organizations and strengths as evidenced by
their organized chapters; (d) the ability to fill a complete slate of candidates from the municipal level to
the position of the President; and (e) other analogous circumstances that may determine their relative
organizations and strengths. As the Court explained in Ang Bagong Bayani:

The purpose of the party-list provision is to open up the system, in order to enhance chance of sectoral
groups and organizations to gain representation in the House of Representatives through the simplest
scheme possible. Logic shows that the system has been opened to those who have never gotten a
foothold within it – those who cannot otherwise win in regular elections and who therefore need the
"simplest scheme possible" to do so. Conversely, it would be illogical to open the system to those who
have long been within it – those privileged sectors that have long dominated the congressional district
elections.

The import of the open party-list system may be more vividly understood when compared to a student
dormitory "open house," which by its nature allows outsiders to enter the facilities. Obviously, the "open
house" is for the benefit of outsiders only, not the dormers themselves who can enter the dormitory
even without such special privilege. In the same vein, the open party-list system is only for the
"outsiders" who cannot get elected through regular elections otherwise; it is not for the non-
marginalized or overrepresented who already fill the ranks of Congress.192

The contemplated limitation against the major political parties who wish to participate may then allay
the fear contemplated by the justification given in BANAT for the disqualification.

Nonetheless, a guiding principle remains the same: the party-list system must be held exclusive for the
marginalized and underrepresented. Regardless of the structure or organization of the group, it is
imperative that it represents a marginalized and underrepresented sector. Thus, it is my submission that
political parties which seek to participate in the party-list system must observe two rules: (1) they must
be organized along sectoral lines; and (2) they must not field in candidates for district representatives.
The importance of the requirement for representation of marginalized and underrepresented sector
cannot be overemphasized. The very essence of the party-list system of representation is to give
representation to the voiceless sectors of the society. It is the characteristic which distinguishes party-list
representatives from the regular district representatives in Congress.

That a party-list group must represent a marginalized and underrepresented sector is the only hurdle
which keeps all other organizations from joining the party-list elections. If this lone filter we have against
fly-by-night organizations will be junked, then the COMELEC will be flocked with petitions for registration
from organizations created to pursue selfish ends and not to the benefit of the voiceless and neglected
sectors of the society.

The move to open the party-list system free-for-all will create a dangerous precedent as it will open the
doors even to illegitimate organizations. Organizations aspiring to join the party-list election can simply
skirt the law and organize themselves as a political party to take advantage of the more lenient entrance.
The organization need only to register as a political party to dispense with the stringent requirement of
representing a sector. It will automatically be off the hook from the danger of being disqualified on the
ground that it is not representing a marginalized and underrepresented sector. Other organizations, even
those organized as sectoral parties, may follow through and may even disrobe themselves as sectoral
parties and opt to become political parties instead because it is the easier way to be allowed
participation in the party-list elections. Thus, once again, the causes of the marginalized and
underrepresented are lagged behind.

The second requirement for political parties is that they must not field in candidates for district
representatives. The reason is that the party-list system is solely for the marginalized and
underrepresented. Certainly, political parties which are able to field in candidates for the regular seats in
the House of Representatives cannot be classified as such.

The third guideline in Ang Bagong Bayani expresses the proscription against the registration of religious
groups as party-list groups. The idea is that the government acts for secular purposes and in ways that
have primarily secular effects.193 Despite the prohibition, members of a religious group may be
nominated as representative of a marginalized and underrepresented sector. The prohibition is directed
only against religious sectors registering as a political party194 because the government cannot have a
partner in legislation who may be driven by the dictates of faith which may not be capable of rational
evaluation.

The fourth and fifth guidelines in Ang Bagong Bayani pertain to disqualifying circumstances which can
justify the denial of the petition for registration of party, organization or coalition, thus:
Fourth, a party or an organization must not be disqualified under Section 6 of RA 7941, which
enumerates the grounds for disqualification as follows:

"(1) It is a religious sect or denomination, organization or association organized for religious purposes;

(2) It advocates violence or unlawful means to seek its goal;

(3) It is a foreign party or organization;

(4) It is receiving support from any foreign government, foreign political party, foundation, organization,
whether directly or through any of its officers or members or indirectly through third parties for partisan
election purposes;

(5) It violates or fails to comply with laws, rules or regulations relating to elections;

(6) It declares untruthful statements in its petition;

(7) It has ceased to exist for at least one (1) year; or

(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum
(2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency
in which it has registered."

xxxx

Fifth, the party or organization must not be an adjunct of, or a project organized or an entity funded or
assisted by, the government. By the very nature of the party-list system, the party or organization must
be a group of citizens, organized by citizens and operated by citizens. x x x195

To be eligible for registration, the party, organization or coalition must prove that it possesses all the
qualifications and none of the disqualifications stated in the law. The grounds for disqualification stated
in Section 6 of RA 7941 pertain to acts, status or conditions which render the applicant group an
unsuitable partner of the state in alleviating the conditions of the marginalized and underrepresented.
These disqualifying circumstances are drawn to further implement the state policy of preserving the
party-list system exclusively for the intended beneficiaries of RA 7941.

On the other hand, the disqualification mentioned in the fifth guideline connotes that the party-list
group must maintain its independence from the government so that it may be able to pursue its causes
without undue interference or any other extraneous considerations. Verily, the group is expected to
organize and operate on its own. It must derive its life from its own resources and must not owe any part
of its creation to the government or any of its instrumentalities. By maintaining its independence, the
group creates a shield that no influence or semblance of influence can penetrate and obstruct the group
from achieving its purposes. In the end, the party-list group is able to effectively represent the causes of
the marginalized and underrepresented, particularly in the formulation of legislation intended for the
benefit of the sectors.

Qualifications of the Nominees

The sixth, seventh and eighth guidelines in Ang Bagong Bayani bear on the qualifications of the
nominees, viz:

Sixth, the party must not only comply with the requirements of the law; its nominees must likewise do
so. Section 9 of RA 7941 reads as follows:

SEC. 9. Qualifications of Party-List Nominees. — No person shall be nominated as party-list

representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the
Philippines for a period of not less than one (1) year immediately preceding the day of the election, able
to read and write, a bona fide member of the party or organization which he seeks to represent for at
least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on
the day of the election.

In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty
(30) years of age on the day of the election. Any youth sectoral representative who attains the age of
thirty (30) during his term shall be allowed to continue in office until the expiration of his term."

Seventh, not only the candidate party or organization must represent marginalized and
underrepresented sectors; so also must its nominees. To repeat, under Section 2 of RA 7941, the
nominees must be Filipino citizens "who belong to marginalized and underrepresented sectors,
organizations and parties." Surely, the interests of the youth cannot be fully represented by a retiree;
neither can those of the urban poor or the working class, by an industrialist. To allow otherwise is to
betray the State policy to give genuine representation to the marginalized and underrepresented.

Eighth, as previously discussed, while lacking a well-defined political constituency, the nominee must
likewise be able to contribute to the formulation and enactment of appropriate legislation that will
benefit the nation as a whole. x x x 196

Except for a few, the basic qualifications of the nominee are practically the same as those required of
individual candidates for election to the House of Representatives. He must be: (a) a natural-born citizen;
(b) a registered voter; (c) a resident of the Philippines for a period of not less than one (1) year
immediately preceding the day of the election; (d) able to read and write; (e) bona fide member of the
party or organization which he seeks to represent for at least ninety (90) days before the day of election;
(f) at least twenty five (25) years of age on the day of election; (g) in case of a nominee for the youth
sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of
election. Owing to the peculiarity of the party-list system of representation, it is not required that the
nominee be a resident or a registered voter of a particular district since it is the party-list group that is
voted for and not the appointed nominees. He must, however, be a bona fide member of the party-list
group at least ninety (90) days before the elections.

The nominee must be a bona fide member of the marginalized and underrepresented sector

In some of the petitions, the COMELEC denied registration to the party, organization or coalition on the
ground that the nominee does not belong to the sector he wishes to represent. The quandary stems
from the interpretation of who are considered as one "belonging to the marginalized and
underrepresented." The COMELEC supposed that before a person may be considered as one "belonging
to the marginalized and underrepresented sector," he must actually share with the rest of the
membership that common characteristic or attribute which makes the sector marginalized and
underrepresented.

The construction seemed logical but to be consistent with the letter of the law, it must be harmonized
with Section 9 of RA 7941, the specific provision dealing with the qualifications of the nominee. In the
mentioned provision, aside from the qualifications similarly required of candidates seeking to represent
their respective districts, the nominee is required to be a bona fide member of the party, a status he
acquires when he enters into the membership of the organization for at least ninety (90) days before the
election. From the point in time when the person acquires the status of being a bona fide member, he
becomes one "belonging to the marginalized and underrepresented sector."
It is my view that the foregoing interpretation accommodates two (2) types of nominees:

1. One who actually shares the attribute or characteristic which makes the sector marginalized or
underrepresented (the first type);

2. An advocate or one who is genuinely and actively promoting the causes of the sector he wishes to
represent (the second type).

The first type of nominee is one who shares a common physical attribute or status with the rest of the
membership. That he possesses this common characteristic of marginalization is what entitles him to
nomination as representative of the group. This is because of the reasonable presumption that those
who have experienced the inadequacies in the sector are the ones who can truly represent the same.
However, there are instances when this strict construction becomes impracticable, if not altogether
impossible. For instance, a representation from the organization of skilled workers working abroad is
difficult to comply with without the nominee being excluded from the literal definition of who belongs to
the sector. The strict interpretation also discourages growth, as in the nominee from the urban sector,
since the moment he rises from his status as such, he becomes disqualified to represent the party.

The second type of nominee addresses the gap. An advocate or one who is publicly known to be
pursuing the causes of the sector is equally capable of fulfilling the objective of providing a genuine and
effective representation for the marginalized and underrepresented. He is one who, notwithstanding
social status, has always shown genuine concern for those who have less in life. Unlike the first type of
nominee who shares a common characteristic with the members of the group, the advocate shares with
them a common aspiration and leads them towards achieving that end. He serves as a catalyst that stirs
movement so that the members of the sector may be encouraged to pursue their welfare. And though
not bound with the group by something physical, he is one with them in spirit and heart. He is known for
his genuine commitment and selfless dedication to the causes of the sector and his track record boldly
speaks of his advocacy.

At the outset, it may seem that the foregoing ratiocination translates to a more lenient entry for those
aspiring to become a nominee. However, the standard of scrutiny should not change and nominees shall
still be subject to the evaluation by the COMELEC of their qualifications. They bear the burden of proof
to establish by concrete and credible evidence that they are truly representative of the causes of the
sector. They must present proof of the history of their advocacy and the activities they undertook for the
promotion of the welfare of the sector. They must be able to demonstrate, through their track record,
their vigorous involvement to the causes of the sector.
The law puts a heavy burden on the nominee to prove his advocacy through his track record. To be clear,
the track record is not a mere recital of his visions for the organization and the trivial activities he
conducted under the guise of promoting the causes of the sector. He must actually and actively be
espousing the interests of the sector by undertaking activities directly addressing its concerns.

In Lokin, Jr. v. COMELEC,197 the Court enumerated the list of evidence which the party-list group and its
nominees may present to establish their qualifications, to wit:

The party-list group and the nominees must submit documentary evidence in consonance with the
Constitution, R.A. 7941 and other laws to duly prove that the nominees truly belong to the marginalized
and underrepresented sector/s, the sectoral party, organization, political party or coalition they seek to
represent, which may include but not limited to the following:

a. Track record of the party-list group/organization showing active participation of the nominee/s in the
undertakings of the party-list group/organization for the advancement of the marginalized and
underrepresented sector/s, the sectoral party, organization, political party or coalition they seek to
represent;

b. Proofs that the nominee/s truly adheres to the advocacies of the party-list group/organizations (prior
declarations, speeches, written articles, and such other positive actions on the part of the nominee/s
showing his/her adherence to the advocacies of the party-list group/organizations);

c. Certification that the nominee/s is/are a bona fide member of the party-list group/ organization for at
least ninety (90) days prior to the election; and

d. In case of a party-list group/organization seeking representation of the marginalized and

underrepresented sector/s, proof that the nominee/s is not only an advocate of the
party-list/organization but is/are also a bona fide member/s of said marginalized and underrepresented
sector.198

Regardless of whether the nominee falls under the first or second type, proof of his track record is
required. The requirement is even more stringent for the second type of nominee as he must
convincingly show, through past activities and undertakings, his sincere regard for the causes of the
sector. The history of his advocacy and the reputation he earned for the same will be considered in the
determination of his qualification.
Admittedly, the foregoing clarification partakes of a new guideline which the COMELEC failed to take into
consideration when it conducted automatic review of the petitions for registration and summary
evidentiary hearings pursuant to Resolution No. 9513.

Disqualification of the nominee and its effects

In a number of resolutions, the COMELEC disqualified some party-list groups on the ground that one or
some of its nominees are disqualified. Apparently, the COMELEC is of the impression that the group,
upon filing their petition for registration, must submit names of at least five (5) nominees who must all
be qualified. In the instances when some of the nominees were found to be suffering from any
disqualification, the COMELEC deemed the party to have committed a violation of election laws, rules
and regulations and denied its petition for registration.

I agree with the majority that the construction made by the COMELEC is misplaced.

It is the COMELEC’s supposition that when the party-list group included a disqualified nominee in the list
of names submitted to the COMELEC, it is deemed to have committed the violation stated in Section 6
(5)199 of RA 7941. This feeble deduction, however, is not within the contemplation of the law. The
mentioned provision does not suggest that all kinds of violations can be subsumed under Section 6 (5)
and justify the disqualification of the group. To warrant such a serious penalty, the violation must be
demonstrative of gross and willful disregard of the laws or public policy. It must be taken to refer to
election offenses enumerated under Sections 261 and 262, Article XXII of the Omnibus Election Code or
any other acts or omissions that are inconsistent with the ideals of fair and orderly elections. It does not
intend to cover even innocuous mistakes or incomplete compliance with procedural requirements.

Accordingly, it is a mistake on the part of the COMELEC to suppose that failure to comply with Section 8
of RA 7941 is within the contemplation of Section 6 (5) thereof. Section 8 reads:

Section 8. Nomination of Party-List Representatives. Each registered party, organization or coalition shall
submit to the COMELEC not later than forty-five (45) days before the election a list of names, not less
than five (5), from which party-list representatives shall be chosen in case it obtains the required number
of votes.

xxxx
The language of the law is clear and unambiguous; it must be given its plain and literal meaning. A
reading of the provision will show that it is simply a procedural requirement relating to the registration
of groups, organizations and coalitions under the party-list system of representation. Plainly, it requires
the applicant under the party-list system to submit a list of nominees, not less than five, at least forty-
five (45) days before the election. The group’s compliance with this requirement is determinative of the
action of the COMELEC. In case of failure to comply, the COMELEC may refuse to act on the petition for
registration. If the applicant, on the other hand, tendered an incomplete compliance, as in submitting a
list of less than five (5) nominees, the COMELEC may ask it to comply or simply regard the same as a
waiver. In no way can the mere submission of the list be construed as a guarantee or attestation on the
part of the group that all of the nominees shall be qualified especially that the assessment of
qualifications is a duty pertaining solely to the COMELEC. In the same way, the provision did not intend
to hold the group liable for violation of election laws for such a shortcoming and to mete out the same
with the penalty of disqualification. Such an absurd conclusion could not have been the intention of the
law.

Indeed, there are instances when one or some of the nominees are disqualified to represent the group
but this should not automatically result to the disqualification of the latter. To hold otherwise is to accord
the nominees the same significance which the law holds for the party-list groups of the marginalized and
underrepresented. It is worthy to emphasize that the formation of party-list groups organized by the
marginalized and underrepresented and their participation in the process of legislation is the essence of
the party-list system of representation. Consistent with the purpose of the law, it is still the fact that the
party-list group satisfied the qualifications of the law that is material to consider. That one or some of its
chosen agents failed to satisfy the qualifications for the position should not unreasonably upset the
existence of an otherwise legitimate party-list group. The disqualification of the nominees must simply
be regarded as failure to qualify for an office or position. It should not, in any way, blemish the
qualifications of the party-list group itself with defect.

The point is that the party-list group must thus be treated separate and distinct from its nominees such
that qualifications of the latter must not be considered part and parcel of the qualifications of the
former. The features of the party-list system of representation are reflective of the intention of the law to
treat them severally.

To begin with, the electorate votes for the party-list group or organization itself, not for the individual
nominees.200 The nominees do not file a certificate of candidacy nor do they launch a personal
campaign for themselves.201 It is the party-list group that runs as candidate and it is the name of the
group that is indicated in the ballot. The list of nominees submitted to the COMELEC becomes relevant
only when the party-list group garners the required percentage of votes that will entitle it to a seat in
Congress. At any rate, the party-list group does not cease in existence even when it loses the electoral
race. And, should it decide to make another electoral bid, it is not required to keep its previous list of
nominees and can submit an entirely new set of names.
Further, there are separate principles and provisions of law pertaining to the qualifications and
disqualifications of the party-list group and the nominees. The qualifications of the party-list group are
outlined in Ang Bagong Bayani while the grounds for the removal/cancellation of registration are
enumerated in Section 6 of RA 7941.

On the other hand, Section 9 of the law governs the qualifications of the nominees. As to their
disqualification, it can be premised on the ground that they are not considered as one "belonging to the
marginalized and underrepresented sector" or that they lack one or some of the qualifications. They may
also be disqualified under Section 15202 and Section 8203 of RA 7941, particularly under the second
paragraph thereof. Even after the COMELEC’s determination, interested parties may still question the
qualifications of the nominees through a petition to cancel or deny due course to the nomination or
petition for disqualification under Sections 1204 and 2,205 Rule 5 of the COMELEC Resolution No. 9366,
respectively.

It is worth emphasizing that the selection of nominees depends upon the choice of the members of the
party-list group. It is a matter which cannot be legislated and is solely dependent upon the will of the
party.206 More often than not, the choice of nominees is grounded on trust and confidence, not on the
vague or abstract concepts of qualifications under the law. The method or process by which the
members of the party-list group choose their nominees is a matter internal to them. No set of rules or
guidelines can be imposed upon them by the Court or the COMELEC in selecting their representatives
lest we be charged of unnecessarily disrupting a democratic process.

Regrettably, the COMELEC did intrude in the party-list groups’ freedom to choose their nominees when it
disqualified some of them on the ground that their nominees are disqualified. While the COMELEC has
the authority to determine the qualifications of the nominees, the disqualification of the group itself due
to the failure to qualify of one or some of the nominees is too harsh a penalty. The nexus between the
COMELEC’s outright disqualification of the group due to the disqualification of the nominees and the
avowed objective of RA 7941 of encouraging the development of a "full, free and open party-list system"
is extremely hard to decipher.

In other words, the Court cannot countenance the action of the COMELEC in disqualifying the party-list
group due to the disqualification of one or some of the nominees. There is simply no justifiable ground
to support this action. It is unthinkable how the COMELEC could have conceived the thought that the
fate of the party-list group depends on the qualifications of the nominees, who are mere agents of the
group, especially that the agency between them is still subject to the condition that the group obtains
the required percentage of votes to be entitled to a seat in the House of Representatives. Until this
condition is realized, what the nominees have is a mere expectancy.
It may also be helpful to mention that in Veterans Federation Party v. Commission on Elections,207 the
Court emphasized the three-seat limit rule, which holds that each qualified party, regardless of the
number of votes it actually obtained, is entitled only to a maximum of three (3) seats.208 The rule is a
reiteration of Section 11(b)209 of RA 7941. Relating the principle to Section 8, it becomes more apparent
that the action of the COMELEC was made with grave abuse of discretion. It bears noting that while
Section 8 requires the submission of the names of at least five (5) nominees, Section 11 states that only
three (3) of them can actually occupy seats in the House of Representatives should the votes they gather
suffice to meet the required percentage. The two (2) other nominees in the list are not really expecting
to get a seat in Congress even when the party-list group of which they are members prevailed in the
elections. If at all, they can only substitute incumbent representatives, if for any reason, they vacate the
office. Therefore, if the right to office of three (3) of the nominees is based on a mere expectancy while
with the other two (2) the nomination is dependent on the occurrence of at least two (2) future and
uncertain events, it is with more reason that the disqualification of one or some of the nominees should
not affect the qualifications of the party-list group.

I have also observed that in some of the consolidated petitions, the party-list group submitted a list of
nominees, with less than five (5) names stated in Section 8 of RA 7941. In some other petitions, only
some out of the number of nominees submitted by the party-list group qualified. Again, Section 8 must
be construed as a procedural requirement relative to registration of groups aspiring to participate in the
party-list system of representation. In case of failure to comply, as in non-submission of a list of
nominees, the COMELEC may deny due course to the petition. In case of incomplete compliance, as
when the party-list group submitted less than 5 names, it is my view that the COMELEC must ask the
group to comply with the admonition that failure to do so will amount to the waiver to submit 5 names.
The implication is that if the party-list group submitted only one qualified nominee and it garners a
number of votes sufficient to give it two (2) seats, it forfeits the right to have a second representative in
Congress. Therefore, for as long as the party-list group has one (1) qualified nominee, it must be allowed
registration and participation in the election. The situation is different when the party-list group
submitted a list of nominees but none qualified and, upon being asked to submit a new list of names,
still failed to appoint at least one (1) qualified nominee. In this case, the party can now reasonably be
denied registration as it cannot, without at least one qualified nominee, fulfill the objective of the law for
genuine and effective representation for the marginalized and underrepresented, a task which the law
imposes on the qualified nominee by participating in the "formulation and enactment of appropriate
legislation that will benefit the nation as a whole."210 More importantly, the party-list group’s inability
to field in qualified nominees casts doubt on whether the group is truly representative of the
marginalized and underrepresented. Considering that the majority of the group must belong to the
marginalized and underrepresented, it should not have any trouble appointing a qualified nominee.

Ruling on each of the petitions

As opposed to the vote of the majority, I deem it unnecessary to remand ALL the petitions to the
COMELEC, completely disregarding the ground/s for the cancellation or denial of the party-list groups’
registration, and even on the supposition that the ponencia had substantially modified the guidelines
that are set forth in the Ang Bagong Bayani.

I vote, instead, to REMAND only the petitions of the party-list groups whose remaining ground for denial
or cancellation of registration involves the new guideline on the qualifications of a party’s nominees.
While I agree on modifying the qualifications of major political parties, no remand is justified on this
ground since none of the 52211 petitioners is a major political party. On all other issues, the standard of
grave abuse of discretion shall already be applied by the Court.

For an extraordinary writ of certiorari to be justified, the tribunal or administrative body must have
issued the assailed decision, order or resolution with grave abuse of discretion.212 In Mitra v.
Commission on Elections,213 the Court recognized that along with the limited focus that attends
petitions for certiorari is the condition, under Section 5, Rule 64 of the Rules of Court, that findings of
fact of the COMELEC, when supported by substantial evidence, shall be final and non-reviewable.
Substantial evidence is that degree of evidence that a reasonable mind might accept as sufficient to
support a conclusion.214

Guided by the foregoing principles, I vote to DISMISS the petitions for failure to substantiate grave abuse
of discretion, and to AFFIRM THE COMELEC’s DENIAL OR CANCELLATION OF REGISTRATION, of the
following party-list groups: GREENFORCE, KALIKASAN, UNIMAD, AAMA, APEC, 1-CARE, ALA-EH, 1BRO-
PGBI, 1GANAP/GUARDIANS, ASIN, Manila Teachers, KAKUSA, BANTAY, GUARDJAN, PACYAW, ARC, SMART,
ALAM, ABANG LINGKOD, AKMA-PTM, BAYANI, FIRM 24-K, KAP, COCOFED, AANI, ABROAD, AG, ALONA,
AGRI, 1ST KABAGIS, ARAL, BINHI, SENIOR CITIZENS, Atong Paglaum, ANAD, PBB, PPP, 1AAAP, ABP, AAB,
AKB and AI.

The COMELEC’s conclusion on the said groups’ failure to qualify, insofar as the grounds pertained to the
sectors which they seek to represent and/or their capacity to represent their intended sector finds
support in established facts, law and jurisprudence.

ON THE OTHER HAND, I find grave abuse of discretion on the part of the COMELEC in ruling on the
disqualification of 1-UTAK, PASANG MASDA, BUTIL, AT and ARARO on the supposed failure of these
parties to substantiate their eligibility as a group, specifically on questions pertaining to their track
record and the sectors which they seek to represent.

Although as a general rule, the Court does not review in a certiorari case the COMELEC’s appreciation
and evaluation of evidence presented to it, in exceptional cases, as when the COMELEC’s action on the
appreciation and evaluation of evidence oversteps the limits of discretion to the point of being grossly
unreasonable, the Court is not only obliged, but has the constitutional duty to intervene. When grave
abuse of discretion is present, resulting errors arising from the grave abuse mutate from error of
judgment to one of jurisdiction.215 To this exception falls the COMELEC’s disqualification of 1-UTAK,
PASANG MASDA, BUTIL, AT and ARARO.

1-UTAK and PASANG MASDA

1-UTAK is a sectoral organization composed of various transport drivers and operators associations
nationwide with a common goal of promoting the interest and welfare of public utility drivers and
operators.216 On the other hand, PASANG MASDA is a sectoral political party that mainly represents the
marginalized and underrepresented sectors of jeepney and tricycle drivers and operators across the
National Capital Region.217 Contrary to the conclusion that was inferred by the COMELEC from the
common circumstance that 1- UTAK and PASANG MASDA represent the sectors of both public utility
drivers and operators, it is not a sufficient ground to cancel their respective registration as party-list
group.

To a great extent, the supposed conflict in the respective interests of public utility drivers and operators
is more apparent than real. It is true that there is a variance in the economic interests of public utility
drivers and operators; the former is concerned with wages while the latter is concerned with profits.
However, what the COMELEC failed to consider is that the two sectors have substantial congruent
concerns and interests.

To my mind, the interests of public utility drivers and operators are aligned with each other in several
instances. To name a few: first, the effects of fluctuation in the prices of petroleum products; second,
their benefit from petitions for fare increase/reduction; and third, the implications of government
policies affecting the transportation sector such as traffic rules and public transport regulation. In these
instances, it is mutually beneficial for drivers and operators of public utility vehicles to work together in
order to effectively lobby their interests. Certainly, the interrelated concerns and interests of public
utility drivers and operators far outweigh the supposed variance in their respective economic interests.

Accordingly, my view is that the COMELEC En Banc gravely abused its discretion in cancelling the
registration of 1-UTAK and PASANG MASDA as party-list groups on the ground of the sectors which they
aim to represent.

BUTIL
Similarly, the COMELEC gravely abused its discetion when it cancelled the registration of BUTIL on the
alleged ground that the party failed to prove that the "agriculture and cooperative sectors," which the
party represents, are marginalized and underrepresented218

In arriving at the said conclusion, the COMELEC noted that the Secretary-General of BUTIL, Wilfredo A.
Antimano affirmed in his judicial affidavit that BUTIL is an organization "representing members of the
agriculture and cooperative sectors." From this declaration, the COMELEC ruled that since the agriculture
and cooperative sectors are not enumerated in RA 7941, it is incumbent upon BUTIL to establish the fact
that the sectors it is representing are marginalized and underrepresented. Since the party failed to
discharge this burden, the COMELEC cancelled the party’s I stress, however, that in determining whether
the group represents a marginalized and underrepresented sector, all of the evidence submitted by the
party should be duly considered by the Commission. Thus, Antimano’s statement in his judicial affidavit
that BUTIL represents the "agriculture and cooperative sectors" should be read in conjunction with the
other documents submitted by the party, including the oral testimony that was given by the party’s
witness. Significantly, during the clarificatory hearing conducted by the Commission En Banc on August
23, 2012, Antimano explained:

CHAIRMAN BRILLANTES:

Isa lang. Gusto ko lang malaman, sino ho ang mga myembro nyo?

MR. ANTIMANO:

Ang myembro po ng aming partido ay mga magsasaka, maliliit na magsasaka at maliliit na mangignigsda
sa kanayunan.

xxxx

CHAIRMAN BRILLANTES:

Ang tanong ko ho eh, gusto ko lang malaman, small farmers ang inyong nire-represent?

MR. ANTIMANO:
Opo.

CHAIRMAN BRILLANTES:

Small fishermen, kasama ho ba yun?

MR. ANTIMANO:

Opo.

CHAIRMAN BRILLANTES:

Pati maliliit na mangingisda?

MR. ANTIMANO:

Opo, sa kanayunan. Meron po kasing maliliit na mangingisda sa karagatan pero yung sa amin, yun pong
maliliit na mangingisda na nag-aalaga ng maliliit na…219

It can be reasonably gathered from the foregoing that Antimano’s reference to the "agriculture and
cooperative sector" pertains to small farmers and fishermen. Likewise, on the basis of the evidence on
record, the term "cooperative" in Antimano’s affidavit should be taken to refer to agricultural
cooperatives which, by their nature, are still comprised of agricultural workers.

Time and again, the Court has recognized small agricultural workers as marginalized and
underrepresented. Based on the records, BUTIL appears to fully adhere to and work towards their cause.
I also give due consideration to the fact that since the party-list system was first implemented in 1998,
the party had been able to obtain the necessary votes for at least one seat in the House of
Representatives. This affirms the party’s constituency that may deserve a continued representation in
Congress.

AT
AT is an incumbent party-list group that claims to represent six (6) marginalized sectors – labor, urban
poor, elderly, women, youth and overseas Filipino workers (OFWs).220 In disqualifying AT, the COMELEC
found that its incumbent representative, Congresswoman Daryl Grace J. Abayon, failed to author house
measures that will uplift the welfare of all the sectors it claims to represent.221

In so ruling, however, the COMELEC gravely abused its discretion in failing to appreciate that effective
representation of sectors is not confined to the passage of bills that directly identify or name all of the
sectors it seeks to represent. In the case of AT, there is evidence that it adopted and co-sponsored House
Bills that advanced the interests, not only of the sectors it represents, but even other marginalized and
underrepresented sectors.222 AT also established with sufficiency an exceptional track record that
demonstrates its genuine desire to uplift the welfare of all of the sectors it represents.223 It is broad
enough to cover legislation which, while directly identifying only some of the sectors as main
beneficiaries, also benefits the rest of the sectors it seeks to represent.

ARARO

ARARO is a party-list group that seeks to represent peasants and the urban poor. It was disqualified by
the COMELEC on the ground that these two sectors involve conflicting interests, for instance, in the
matter of land use.

However, I do not see, and the COMELEC failed to show, how the issue of land use can be conflicting
between these sectors. Peasants generally belong to the class of marginal farmers, fisherfolk and
laborers in the rural areas. On the other hand, the urban poor, as the term connotes, are those in the
urban areas. While they may have different interests and concerns, these are not necessarily divergent.

I also do not adhere to the COMELEC’s conclusion that ARARO’s alliances with other sectoral
organizations "muddle" the sectors it represents.224 These are mere alliances, i.e., ties. Itdoes not
necessarily follow that ARARO, because of these ties, will also represent the interests of these sectors. As
long as ARARO's platform continually focuses on the enhancement of the welfare of the peasants and
the urban poor, there can be an effective representation in their behalf.

On the ground of grave abuse of discretion, I then vote to nullify the COMELEC’s cancellation of the
registration of 1-UTAK, PASANG MASDA, BUTIL, AT and ARARO on the ground of these parties’ supposed
failure to prove their eligibility to represent their intended sectors.
The COMELEC also committed grave abuse of discretion in ruling on the outright cancellation of the five
parties’ registration on the ground of the supposed failure of their nominees to qualify. I have fully
explained that the qualification of a party-list group shall be treated separate and distinct, and shall not
necessarily result from the qualification of its nominees.

In any case, my vote to nullify the aforementioned actions of the COMELEC shall not be construed to
automatically restore the five parties’ registration and accreditation, which would otherwise allow their
participation in the May 2013 elections. As has been discussed, each party must still be able to field in
qualified nominees, as it is only through them that the party may perform its legislative function in the
event that it garners the required percentage of votes for a seat in the House of Representatives. With
this circumstance, and considering a new guideline on nominees’ qualifications, I then find the necessity
of remanding their petitions to the COMELEC.

ALIM, A-IPRA, AKIN, A

BLESSED Party-List and

AKO-BAHAY

The denial of the registration of AKIN, and the cancellation of the registration of ALIM, A-IPRA, A
BLESSED Party-List and AKO-BAHAY were based solely on the alleged failure of their respective nominees
to prove that they factually belong to the marginalized and underrepresented sector that their parties
seek to represent. I reiterate that a party-list group must be treated separate and distinct from its
nominees; the outright disqualification of the groups on the said ground is not warranted. The
COMELEC’s ruling to the contrary is an act exhibitive of grave abuse of discretion.

Accordingly, I deem it appropriate to nullify the COMELEC’s resolve to deny AKIN’s registration and
cancel the registration of ALIM, A-IPRA, A BLESSED Party-List and AKO-BAHAY. Nonetheless, as in the case
of 1-UTAK, PASANG MASDA, BUTIL, AT and ARARO, this does not necessarily restore or grant their
registration under the party-list system.

I submit that in view of my stand regarding the qualifications of nominees, specifically on the two types
of qualified nominees, it is only proper that the petitions that involve the ground of disqualification of
the nominees be remanded to the COMELEC to afford it the opportunity to revisit its rulings. In so doing,
the COMELEC may be able to assess the facts and the records, while being guided by the clarification on
the matter. It must be emphasized, however, that not all of the petitions necessitates a remand
considering that from the records, only ten (10) out of the fifty-three (53) consolidated petitions solely
involved the disqualification of the party’s nominees. The bulk of the petitions consist of cancellation or
denial of registration on the ground (1) that the party-list group does not represent a marginalized and
underrepresented sector, or; (2) that the group itself, on the basis of the pertinent guidelines
enumerated in Ang Bagong Bayani, failed to qualify. If the ground for the denial or cancellation of
registration is disqualification on the basis of sector or group, it is a futile exercise to delve into the
qualifications of the nominees since notwithstanding the outcome therein, the party-list group remains
disqualified. It is well to remember that the law provides for different sets of qualifications for the party-
list group and the nominees. The law, while requiring that the party-list group must have qualified
nominees to represent it, treats the former as separate and distinct from the latter, not to treat them as
equals but to give a higher regard to the party-list group itself. Thus, in the event that the nominees of
the party-list group fail to qualify, the party-list group may still be afforded the chance to fill in qualified
nominees to represent it. The reverse, however, is not true. The lack of qualifications, or the possession
of disqualifying circumstances by the group, impinges on the legitimacy or the existence of the party-list
group itself. Absent a qualified party-list group, the fact that the nominees that are supposed to
represent it are qualified does not hold any significance.

Even though the ponencia modifies the qualifications for all national or regional parties/organizations, IT
STILL IS NOT NECESSARY TO REMAND ALL THE PETITIONS. It bears stressing that of the 52 petitioners,
only eleven are national or regional parties/organizations. The rest of the petitioners, as indicated in
their respective Manifestations of

Intent and/or petitions, are organized as sectoral parties or organizations.

The party-list groups that are organized as national parties/organizations are:

1. Alliance for Nationalism and Democracy (ANAD)225

2. Bantay Party-List (BANTAY)226

3. Allance of Bicolnon Party (ABP)227

On the other hand, the following are regional parties/organizations:

1. Ako Bicol Political Party (AKB)228

2. Aksyon Magsasaka – Partido Tinig ng Masa (AKMA-PTM)229

3. Ako an Bisaya (AAB)230

4. Kalikasan Party-List (KALIKASAN)231

5. 1 Alliance Advocating Autonomy Party (1AAAP)232

6. Abyan Ilonggo Party (AI)233

7. Partido ng Bayan and Bida (PBB)234

8. Pilipinas Para sa Pinoy (PPP)235

Accordingly, even granting credence to the ponencia’s ratiocination, it does not follow that a remand of
all the cases is justified; as we have pointed out the ponencia has been able to explain the necessity of a
remand of only eleven petitions for further proceedings in the COMELEC, in addition to the ten petitions
that I have recommended for remand.

WHEREFORE, in light of the foregoing disquisitions, I vote to:

1. PARTLY GRANT the petitions in G.R. No. 204410, G.R. No. 204153, G.R. No. 204356, G.R. No. 204174,
G.R. No. 204367, G.R. No. 204341, G.R. No. 204125, G.R. No. 203976, G.R. No. 204263 and G.R. No.
204364. The assailed Resolutions of the Commission on Elections (COMELEC) En Banc in SPP No. 12-198
(PLM), SPP No. 12-277 (PLM), SPP No. 12-136 (PLM), SPP No. 12-232 (PLM), SPP No. 12-104 (PL), SPP No.
12-269 (PLM), SPP No. 12-292 (PLM), SPP No. 12-288 (PLM), SPP No. 12-257 (PLM) and SPP No. 12-180
(PLM) shall be NULLIFIED insofar as these declared the outright disqualification of the parties 1-UTAK,
PASANG MASDA, BUTIL, AT, AKIN, ALIM, A-IPRA, ARARO, A Blessed Party List and AKO-BAHAY,
respectively, NULLIFIED insofar as these declared the outright disqualification of the parties 1-UTAK,
PASANG MASDA, BUTIL, AT, AKIN, ALIM, A-IPRA, ARARO, A Blessed Party List and AKO-BAHAY,
respectively, and their cases shall be REMANDED to the COMELEC, which shall be DIRECTED to: (a) allow
the party-list groups to present further proof that their nominees are actually qualified in light of the
new guideline on the qualification of nominees, (b) evaluate whether the nominees are qualified to
represent the group, and (c) grant or deny registration depending on its determination;
2. DISMISS the petitions in G.R. No. 204139, G.R. No. 204370, G.R. No. 204379, G.R. No. 204394, G.R.
No. 204402, G.R. No. 204426, G.R. No. 204435, G.R. No. 204455, G.R. No. 204485, G.R. No. 204490, G.R.
No. 204436, G.R. No. 204484, G.R. No. 203766, G.R. Nos. 203818-19, G.R. No. 203922, G.R. No. 203936,
G.R. No.203958, G.R. No. 203960, G.R. No. 203981, G.R. No. 204002, G.R. No. 204094, G.R. No. 204100,
G.R. No. 204122, G.R. No. 204126, G.R. No. 204141, G.R. No. 204158, G.R. No. 204216, G.R. No. 204220,
G.R. No. 204236, G.R. No. 204238, 204239, G.R. No. 204240, G.R. No. 204318, G.R. No. 204321, G.R. No.
204323, G.R. No. 204358, G.R. No. 204359, G.R. No. 204374, G.R. No. 204408, G.R. No. 204421, G.R. No.
204425, G.R. No. 204428 and G.R. No. 204486.

BIENVENIDO L. REYES

Associate Justice

Footnotes

1 Ang Bagong Bayani-OFW Labor Party vs. Commission on Elections, 412 Phil. 308 (2001).

2 Resolutions dated November 13, 2012, November 20, 2012, December 4, 2012, December 11, 2012
and February 19, 2013.

3 "An Act Providing for the Election of Party-List Representatives Through the Party-List System, and
Appropriating Funds Therefor"

4 Rules and Regulations Governing The: 1) Filing of Petitions for Registration; 2) Filing of Manifestations
of Intent to Participate; 3) Submission of Names of Nominees; and 4) Filing of Disqualification Cases
Against Nominees or Party-List Groups of Organizations Participating Under the Party-List System of
Representation in Connection with the May 13, 2013 National and Local Elections, and Subsequent
Elections Thereafter.

5 Supra note 1.

6 First, the political party, sector, organization or coalitions must represent the marginalized and
underrepresented groups identified in Section 5 of RA 7941. In other words, it must show – through its
constitution, articles of incorporation, bylaws, history, platform of government and track record – that it
represents and seeks to uplift marginalized and underrepresented sectors. Verily, majority of its
membership should belong to the marginalized and underrepresented. x x x

Second, while even major political parties are expressly allowed by RA 7941 and the Constitution to
participate in the party-list system, they must comply with the declared statutory policy of enabling
"Filipino citizens belonging to marginalized and underrepresented sectors x x x to be elected to the
House of Representatives." In other words, while they are not disqualified merely on the ground that
they are political parties, they must show, however, that they represent the interests of the marginalized
and underrepresented. x x x

xxxx

Third, x x x the religious sector may not be represented in the party-list system.

xxxx

Fourth, a party or an organization must not be disqualified under Section 6 of RA 7941 x x x

xxxx

Fifth, the party or organization must not be an adjunct of, or a project organized or an entity funded or
assisted by, the government. x x x

Sixth, the party must not only comply with the requirements of the law; its nominees must likewise do
so.

xxxx

Seventh, not only the candidate party or organization must represent marginalized and
underrepresented sectors; so also must its nominess. x x x
Eighth, x x x the nominee must likewise be able to contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a whole. x x x

7 Consolidated Comment dated December 26, 2012, p. 54.

8 Order dated August 9, 2012; rollo (G.R. No. 204323), pp. 16-19.

9 Rollo (G.R. No. 203818), pp. 83-87; Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Lucenito N. Tagle, Armando C. Velasco, Elias R. Yusoph and Christian Robert S. Lim;
Commissioner Maria Gracia Cielo M. Padaca, no part.

10 SPP No. 12-154 (PLM) and SPP No. 12-177 (PLM).

11 Rollo (G.R. No. 203818), p. 86.

12 Rollo (G.R. No. 203981), pp. 47-70; Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners
Lucenito N. Tagle, Armando C. Velasco, Elias R. Yusoph and Christian Robert S. Lim. Commissioner Rene
V. Sarmiento also voted in favor. Commissioner Maria Gracia Cielo M. Padaca took no part.

13 SPP No. 12-161 (PLM).

14 Section 9 of RA 7941. x x x x In case of a nominee of the youth sector, he must be twenty-five (25) but
not more than thirty (30) years of age on thed day of the election. Any youth sectoral representative
who attains the age of thirty (30) during his term shall be allowed to continue in office until the
expiration of his term.

15 Rodolfo P. Pancrudo, Jr.

16 Pablo Lorenzo III.

17 Victor G.. Noval.

18 Melchor P. Maramara.

19 SPP No. 12-187 (PLM).

20 Rollo (G.R. No. 203981), p. 59.

21 Id. at 60.

22 SPP No. 12-188 (PLM).

23 Rollo (G.R. No. 203981), p. 61.

24 SPP No. 12-220 (PLM).

25 Rollo (G.R. No. 203981), p. 66.

26 Rollo (G.R. No. 204100), pp. 52-67; Signed by Chairman Sixto S. Brillantes, Jr., Commissioners Rene V.
Sarmiento, Lucenito N. Tagle, Armando C. Velasco, Elias R. Yusoph and Christina Robert S. Lim;
Commissioner Maria Gracia Cielo M. Padaca, no part.

27 SPP No. 12-196 (PLM).

28 Rollo (G.R. No. 204100), p. 60.

29 SPP No. 12-223 (PLM).

30 Rollo (G.R. No. 204100), p. 62.

31 Id.
32 SPP No. 12-257 (PLM).

33 Rollo (G.R. No. 204100), p. 65.

34 Rollo (G.R. No. 203960), pp. 61-68. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners
Lucenito N. Tagle, Armando C. Velasco, Elias R. Yusoph and Christian Robert S. Lim; Commissioners Rene
V. Sarmiento and Maria Gracia Cielo M. Padaca, no part.

35 SPP No. 12-260.

36 Rollo (G.R. No. 203922), pp. 92-101; Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners
Rene V. Sarmiento, Lucenito N. Tagle, Armando C. Velasco, Elias R. Yusoph and Christian Robert S. Lim;
Commissioner Maria Gracia Cielo M. Padaca, no part.

37 SPP No. 12-201 (PLM).

38 Rollo (G.R. No. 204174), pp. 158-164; Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners
Rene V. Sarmiento, Lucenito N. Tagle, Armando C. Velasco; Commissioner Christian Robert S. Lim
concurred; Commissioner Maria Gracia Cielo M. Padaca, no part.

39 SPP No. 12-232 (PLM).

40 Rollo (G.R. No. 203976), pp. 21-37; Signed by Chairman Sixto S. Brillantes, Jr., Commissioners Rene V.
Sarmiento, Lucenito N. Tagle, Armando C. Velasco and Christian Robert S. Lim; Commissioner Elias R.
Yusoph, also voted in favor. Commissioner Maria Gracia Cielo M. Padaca, no part.

41 SPP No. 12-288 (PLM).

42 Id. at 28.

43 Joel C. Obar, Jose F. Gamos and Alan G. Gonzales.

44 Rollo (G.R. No. 203958), pp. 26-48; Signed by Chairman Sixto S. Brillantes, Jr., Commissioners Rene V.
Sarmiento, Lucenito N. Tagle, Armando C. Velasco and Christian Robert S. Lim; Commissioner Elias R.
Yusooph, also voted in favor; Commissioner Maria Gracia Cielo M. Padaca, no part.

45 SPP No. 12-279 (PLM).

46 SPP No. 12-248 (PLM).

47 Margarita Delos Reyes Cojuangco, Datu Michael Abas Kida, Catherine Domingo Trinidad, Saidamen
Odin Limgas.

48 SPP No. 12-263 (PLM).

49 SPP No. 12-180 (PLM).

50 SPP No. 12-229 (PLM).

51 Rollo (G.R. No. 203958), p. 39.

52 SPP No. 12-217 (PLM).

53 SPP No. 12-277 (PLM).

54 SPP No. 12-015 (PLM).

55 Rollo (G.R. No. 203958), p. 44.

56 Rollo (G.R. No. 204428), pp. 35-40; Signed by Chairman Sixto S. Brillantes, Jr., Commissioners Rene V.
Sarmiento, Lucenito N. Tagle and Armando C. Velasco; Commissioners Elias R. Yusoph and Christian
Robert S. Lim concurred; Commissioner Maria Gracia Cielo M. Padaca, took no part.

57 SPP No. 12-256 (PLM).

58 Rollo (G.R. No. 204428), p. 36.

59 Sec. 2. Grounds for opposition to a petition for registration. The Commission may deny due course to
the petition motu proprio or upon verified opposition of any interested party, after due notice and
hearing, on any of the following grounds: x x x f. It violates or fails to comply with laws, rules or
regulations relating to elections; x x x.

60 Rollo (G.R. No. 204094), pp. 30-40; Signed by Chairman Sixto S. Brillantes, Jr., Commissioners Rene V.
Sarmiento, Lucenito N. Tagle, Elias R. Yusoph and Christian Robert S. Lim; Commissioner Maria Gracia
Cielo M. Padaca, no part.

61 SPP No. 12-185 (PLM).

62 Rollo (G.R. No. 204094), p. 34.

63 Rollo (G.R. No. 204239), pp. 25-42; Signed by Chairman Sixto S. Brillantes, Jr., Commissioners Rene V.
Sarmiento, Lucenito N. Tagle, Elias R. Yusoph, Christian Robert S. Lim; Commissioner Maria Gracia Cielo
M. Padaca, no part.

64 SPP No. 12-060 (PLM).

65 SPP No. 12-254 (PLM).

66 SPP No. 12-269 (PLM).

67 Rollo (G.R. No. 204358), pp. 140-148. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners
Lucenito N. Tagle, Armando C. Velasco, Elias R. Yusoph, Christian Robert S. Lim and Maria Gracia Cielo M.
Padaca; Commissioner Rene V. Sarmiento on official business.

68 SPP No. 12-204 (PLM).

69 Rollo, (G.R. No. 204359), pp. 42-50. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners
Rene V. Sarmiento, Lucenito N. Tagle, Armando C. Velasco, Elias R. Yusoph and Christian Robert S. Lim;
Commissioner Maria Gracia Cielo M. Padaca, no part.

70 SPP No. 12-272 (PLM).

71 Rollo (G.R. No. 204238), pp. 54-58. Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Lucenito N. Tagle, Elias R. Yusoph and Christian Robert S. Lim; Commissioners Armando C.
Velasco and Maria Gracia Cielo M. Padaca on official business.

72 SPP No. 12-173 (PLM).

73 Rollo (G.R. No. 204323), pp. 44-48; Signed by Chairman Sixto S. Brillantes, Jr., Commissioners Rene V.
Sarmiento, Lucenito N. Tagle, Elias R. Yusoph, Christian Robert S. Lim and Maria Gracia Cielo M. Padaca.

74 SPP No. 12-210 (PLM).

75 Rollo (G.R. No. 204323), pp. 44-45.

76 Alvin V. Abejuela.

77 Rollo (G.R. No. 204321), pp. 43-51; Signed by Chairman Sixto S. Brillantes, Jr., Commissioners Rene V.
Sarmiento, Lucenito N. Tagle, Elias R. Yusoph, Christian Robert S. Lim and Maria Gracia Cielo M. Padaca.

78 SPP No. 12-252 (PLM).

79 Rollo (G..R. No. 204125), pp. 44-48; Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners
Rene V. Sarmiento, Lucenito N. Tagle, Elias R. Yusoph and Christian Robert S. Lim; Commissioner Maria
Gracia Cielo M. Padaca, no part.

80 SPP No. 12-292 (PLM).

81 Rollo (G..R. No. 204125), p. 47.

82 Rollo (G.R. No. 204216), pp. 23-28; Signed by Chairman Sixto S. Brillantes, Jr., Rene V. Sarmiento,
Lucenito N. Tagle, Elias R. Yusoph, Christian Robert S. Lim and Maria Gracia Cielo M. Padaca.

83 SPP No. 12-202 (PLM).

84 Rollo (G.R. No. 204220), pp. 39-44; Signed by Chairman Sixto S. Brillantes, Jr., Rene V. Sarmiento,
Lucenito N. Tagle, Elias R. Yusoph and Christian Robert S. Lim.

85 SPP No. 12-238 (PLM).

86 Rollo (G.R. No. 204158), pp. 59-64; Signed by Chairman Sixto S. Brillantes, Jr., Rene V. Sarmiento,
Lucenito N. Tagle, Armando C. Velasco, Elias R. Yusoph, Christian Robert S. Lim; Commissioner Maria
Gracia Cielo M. Padaca, no part.

87 SPP No. 12-158 (PLM).

88 Rollo (G.R. No. 204158), p. 62.

89 Rollo (G.R. No. 204374), pp. 36-41; Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Lucenito N. Tagle, Armando C. Velasco, Elias R. Yusoph and Christian Robert S. Lim;
Commissioner Maria Gracia Cielo M. Padaca, no part.

90 SPP No. 12-238 (PLM).

91 Rollo (G.R. No. 204356), pp. 56-64; Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene
V. Sarmiento, Lucenito N. Tagle, Armando C. Velasco, Elias R. Yusoph and Christian Robert S. Lim, with
MariaGracia Cielo M. Padaca taking no part.

92 SPP No. 12-136 (PLM).

93 Rollo (G.R. 204486), pp. 42-47; Signed by Chairman Sixto S. Brillantes, Jr., Rene V. Sarmiento, Lucenito
N. Tagle, Armando C. Velasco, Elias R, Yusoph and Christian Robert S. Lim; Maria Gracia Cielo M. Padaca,
no part.

94 SPP No. 12-194 (PLM).

95 Rollo (G.R. 204486), p. 46.

96 Rollo (G.R. No. 204410), pp. 63-67; Signed by Chairman Sixto S. Brillantes, Jr., Commissioners Rene V.
Sarmiento, Armando C. Velasco and Christian Robert S. Lim, with Commisioners Lucenito N. Tagle and
Elias R. Yusoph dissenting, and Commissioner Maria Gracia Cielo M. Padaca taking no part.

97 SPP No. 12-198 (PLM).

98 Rollo (G.R. No. 204421), pp. 43-50; Signed by Chairman Sixto S. Brillantes, Commissioners Rene V.
Sarmiento, Christian Robert S. Lim and Maria Gracia Cielo M. Padaca, with Commisioners Lucenito N.
Tagle, Armando C. Velasco, and Elias R. Yusoph dissenting.

99 SPP No. 12-157 (PLM) and SPP No. 12-191 (PLM).

100 Rollo (G.R. No. 204484), pp. 42-45; Signed by Chairman Sixto S. Brillantes, Jr., Commissioners Rene V.
Sarmiento, Lucenito N. Tagle, Armando c. Velasco, Elias R. Yusoph, Christian Robert S. lim and Maria
Gracia Cielo M. Padaca.

101 SPP No. 11-002.

102 Rollo (G.R. No. 204379), pp. 26-35; Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners
Rene V. Sarmiento, Armando C. Velasco, Christian Robert S. Lim and Maria Gracia Cielo M. Padaca, with
Commissioners Lucenito N. Tagle and Elias R. Yusoph, dissenting.

103 SPP No. 12-099 (PLM).

104 Rollo (G.R. No. 204426), pp. 127-144; Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners
Rene V. Sarmiento, Armando C. Velasco (concurred except for SPP No. 12-011 ALA-EH), Christian Robert
S. Lim (concurred with reservation on issue of jurisdiction) and Maria Gracia Cielo M. Padaca, with
Commissioners Lucenito N. Tagle and Elias R. Yusoph, dissenting.

105 SPP No. 12-238 (PLM).

106 Rollo (G.R. No. 204426), p. 143.

107 Id at 133.

108 SPP No. 12-011 (PLM).

109 Rollo (G.R. No. 204426), pp. 134-135.

110 Rollo (G.R. No. 204435), pp. 47-55; Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners
Rene V. Sarmiento, Armando C. Velasco, Christian Robert S. Lim and Maria Gracia Cielo M. Padaca, with
Commissioners Lucenito N. Tagle and Elias R. Yusoph, dissenting.

111 SPP No. 12-057 (PLM).

112 Atty. Eddie U. Tamondong and Herculano C. Co, Jr.

113 Rollo (G.R. No. 204435), p. 53.

114 1st Nominee, Atty. Pantaleon D. Alvarez, is a lawyer, business, former DOTC Secretary and
Congressman; 2nd Nominee, Emmanuel D. Cifra, is a general manager/president; 3rd Nominee, Atty.
Eddie U. Tamondong, is a lawyer; 4th Nominee, Herculano C. Co., Jr., is a businessman.

115 Rollo (G.R. No. 204367), pp. 30-35; Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners
Rene V. Sarmiento, Armando C. Velasco, Christian Robert S. Lim and Maria Gracia Cielo M. Padaca, with
Commissioners Lucenito N. Tagle and Elias R. Yusoph, dissenting.

116 SPP No. 12-104 (PL).

117 Camelita P. Crisologo and Benjamin A. Moraleda, Jr.

118 Corazon Alma G. De Leon.

119 Imelda S. Quirante.

120 Flordeliza P. Penalosa.

121 Rollo (G.R. No. 204370), pp. 37-50; Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners
Rene V. Sarmiento, Armando C. Velasco, Christian Robert S. Lim and Maria Gracia Cielo M. Padaca, with
Commissioners Lucenito N. Tagle and Elias R. Yusoph, dissenting.

122 SPP No. 12-011 (PLM).

123 Rollo (G.R. No. 204370), p. 44, citing AAB’s Petition dated February 8, 2012.

124 Rollo (G.R. No. 204379), pp. 45-57; Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners
Rene V. Sarmiento, Armando C. Velasco, Christian Robert S. Lim and Maria Gracia Cielo M. Padaca, with
Commissioners Lucenito N. Tagle and Elias R. Yusoph, dissenting.

125 SPP No. 12-009 (PP).

126 Rollo (G.R. No. 204379), p. 53.

127 Lyndeen John D. Deloria

128 Rolex T. Suplico.

129 Francis G. Lavilla.

130 Rollo (G.R. No. 204485), pp. 42-49; Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners
Rene V. Sarmiento, Armando C. Velasco, and Christian Robert S. Lim; with Commissioners Lucenito N.
Tagle and Elias R. Yusoph, dissenting; Commissioner Maria Gracia Cielo M. Padaca, no part.

131 SPP No. 12-175 (PL).

132 Rollo (G.R. No. 204139), pp. 505-512; Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners
Rene V. Sarmiento, Lucenito N. Tagle and Armando C. Velasco; Commissioners Elias R. Yusoph and
Christian Robert S. Lim voted in favor, but were on official business at the time of signing; Commissioner
Maria Gracia Cielo M. Padaca, no part.

133 SPP No. 12-127 (PL).

134 Rollo (G.R. No. 204402), pp. 22-33; Signed by Chairman Sixto S. Brillantes, Jr., Rene V. Sarmiento,
Lucenito N. Tagle, Elias R. Yusoph and Christian Robert S. Lim.

135 SPP No. 12-061 (PP).

136 Rollo (G.R. No. 204402), p. 35.

137 Rollo (G.R. No. 204394); Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners Rene V.
Sarmiento, Lucenito N. Tagle, Armando C. Velasco, Elias R. Yusoph and Christian Robert S. Lim;
Commissioner Maria Gracia Cielo M. Padaca, no part.
138 SPP No. 12-145 (PL).

139 Rollo (G.R. No. 204490), pp. 71-78; Signed by Chairman Sixto S. Brillantes, Jr. and Commissioners
Rene V. Sarmiento, Lucenito N. Tagle, Armando C. Velasco, Elias R. Yusoph and Christian Robert S. Lim;
Maria Gracia Cielo M. Padaca, no part.

140 Id. at. 61-70.

141 SPP No. 12-073 (PLM).

142 Comment dated December 26, 2012, pp. 35-36.

143 Supra note 1.

144 G.R. No. 188308, October 15, 2009, 603 SCRA 692.

145 Id. at 709-710.

146 Pangandaman v. COMELEC, 377 Phil. 297, 312 (1999).

147 Dissenting Opinion of J. Pardo, Akbayan-Youth v. COMELEC, 407 Phil. 618, 669, citing Digman v.
COMELEC, 120 SCRA 650 (1983).

148 444 Phil. 812 (2003).

149 Id. at 824-825, citing Commission on Elections v. Silva, Jr., 286 SCRA 177 (1998); Pimentel vs.
Commission on Elections, 289 SCRA 586 (1998); Commission on Elections vs. Noynay, 292 SCRA 254
(1998); Domalanta vs. Commission on Elections, 334 SCRA 555 (2000).

150 Bautista v. COMELEC, 460 Phil. 459, 476 (2003), citing Canicosa v. COMELEC, 347 Phil. 189 (1997).
151 Canicosa v. COMELEC, 347 Phil. 189, 201 (1997).

152 Liberal Party v. Commission on Elections, 620 SCRA 393, 431 (2010).

153 G.R. No. 161115, November 30, 2006, 509 SCRA 332.

154 Id. at 369-370.

155 Mendoza v. COMELEC, G.R. No. 188308, October 15, 2009, 603 SCRA 692, 710, citing Presidential
Anti-Dollar Salting Task Force v. Court of Appeals, G.R. No. 83578, March 16, 1989, 171 SCRA 348;
Midland Insurance Corporation v. IAC, No. L-71905, August 13, 1986, 143 SCRA 458; Cariño v.
Commission on Human Rights, G.R. No. 96681, December 2, 1991, 204 SCRA 483, on the activities
encompassed by the exercise of quasi-judicial power.

156 Supra note 155, at 824.

157 Supra note .157

158 G.R. No. 190793, June 19, 2012.

159 Id., citing Cipriano v. COMELEC, 479 Phil. 677 (2004).

160 347 Phil. 189 (1997).

161 Santos v. COMELEC, 191 Phil. 212, 219 (1981).

162 Section 3, Article IX-C of the 1987 Constitution.

163 Section 2(1), Article IX-C of the 1987 Constitution.

164 Section 2(3), Article IX-C of the 1987 Constitution.

165 G.R. No. 189600, June 29, 2010, 622 SCRA 593.

166 Id., citing Frivaldo v. COMELEC, G.R. No. 87193, June 23, 1989, 174 SCRA 245, 255.

167 Montemayor v. Bundalian, 453 Phil. 158, 169 (2003), citing Dinsay vs. Cioco, 264 SCRA 703 (1996)

168 Baricuatro v. Caballero, G.R. No. 158643, June 19, 2007, 525 SCRA 70, 76.

169 Philippine Business Bank v. Chua, G.R. No. 178899, November 15, 2010, 634 SCRA 635, 648, citing
Denso (Phils.) Inc. v. Intermediate Appellate Court, G.R. No. 75000, February 27, 1987, 148 SCRA 280.

170 Supra note 175.

171 See Philippine Guardians Brotherhood, Inc. (PGBI) v. COMELEC, G.R. No. 190529, April 29, 2010.

172 Rollo (G.R. No. 204323), pp. 16-19.

173 Id. at 19.

174 Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, supra note 1.

175 Record of the Constitutional Commission No. 46, August 2, 1986.

176 Record of the Constitutional Commission No. 46, August 2, 1986.

177 Ibid.
178 Supra note 1 at 322.

179 586 Phil. 210.

180 Id. at 333.

181 Record of the 1986 Constitutional Commission, Vol. 2., July 22, 1986, RCC No. 36, p. 85.

182 Record of the 1986 Constitutional Commission, Vol. 2., July 25, 1986, RCC No. 39, p. 255.

183 Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, supra note 1 at 342.

184 Ibid.

185 Id. at 336-337.

186 Webster’s Third New International Dictionary (1986), p. 2053.

187 Words and Phrases, Permanent Ed., Vol. 2A, p. 294.

188 Record of the 1986 Constitutional Commission, Volume 2, 7-25-1986, RCC No. 39, p. 257.

189 Id. at 247-248.

190 Concurring and Dissenting Opinion of J. Puno, BANAT v. Comelec, supra note 186 at 258-259.

191 396 Phil. 419 (2000).

192 Supra note 1 at 337-338.

193 Ang Ladlad LGBT Party v. Commission on Elections, G.R. No. 190582, April 8, 2010, 618 SCRA 32, 59.

194 Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, supra note 1 at 343.

195 Id. at 343-344.

196 Id. at 345.

197 G.R. No. 193808, June 26, 2012.

198 Ibid.

199 Section 6. Refusal and/or Cancellation of Registration. – The COMELEC may motu proprio or upon
verified complaint of any interested party, refuse or cancel, after due notice and hearing, the registration
of any national, regional or sectoral party, organization or coalition on any of the following grounds:

xxxx

5. It violates or fails to comply with laws, rules and regulations relating to elections;

xxxx

200 Lokin, Jr. v. Commission on Elections, G.R. Nos. 179431-32 and 180443, June 22, 2010, 621 SCRA
385, 409.

201 Record of the Senate, Third Regular Session, October 3, 1994 to December 5, 1994, Volume II, Nos.
23-45, p. 143.
202 Section 15. Change of Affiliation; Effect. Any elected party-list representative who changes his
political party or sectoral affiliation during his term of office shall forfeit his seat; Provided, that if he
changes his political party or sectoral affiliation within six (6) months before an election, he shall not be
eligible for nomination as party-list representative under his new party or organization.

203 Section 8. Nomination of Party-list Representatives. x x x x

A person may be nominated in one (1) list only. Only persons who have given their consent in writing
may be named in the list. The list shall not include any candidate for any elective office or a person who
has lost his bid for an elective office in the immediately preceding election. x x x x

204 SEC. 1. Petition to deny due course and/or cancellation; Grounds. A verified petition seeking to deny
due course the nomination of nominees of party-list groups may be filed by any person exclusively on
the ground that a material misrepresentation has been committed in the qualification of the nominees.

205 SEC. 2. Petition for disqualification, Ground; - A verified petition seeking the disqualification of
nominees of party-list groups may be filed by any person when the nominee has been 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 the campaign an amount in excess of that allowed by law;

d. Solicited, received or made any contribution prohibited under Section 89, 95, 96, 97 and 104 of the
Omnibus Election Code; or

e. Violated any of Sections 83, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6 of the Omnibus
Election Code.
206 Record of the Senate, Third Regular Session, October 3, 1994 to December 5, 1994, Volume II, Nos.
23-45, p. 157

207 396 Phil. 419 (2000).

208 Id. at 424.

209 Section 11. Number of Party-List Representatives.

a. x x x x

b. The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for
the party list system shall be entitled to one set each: Provided, That those garnering more than two
percent (2%) of the votes shall be entitled to additional seats in proportion to their number of votes;
Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3)
seats.

210 Section 2, RA 7941.

211 The 53 consolidated petitions include 2 petitions filed by SENIOR CITIZENS.

212 Malinias v. Commission on Elections, 439 Phil. 319 (2002).

213 G.R. No. 191938, June 2, 2010, 622 SCRA 744.

214 Id. at 766-767.

215 Id. at 767.

216 Rollo (G.R. No. 204410), p. 79.

217 Rollo (G.R. No. 204153), p. 5.

218 Rollo (G.R. No. 204356), p. 61.

219 Id. at 77-79.

220 Rollo (G.R. No. 204174), p. 173.

221 Id. at 160.

222 Id. at 544-613.

223 Id. at 839-1494.

224 Rollo (G.R. No. 203976), p. 28.

225 Rollo (G.R. No. 204094), p. 146.

226 Rollo (G.R. No. 204141), p. 74.

227 Rollo (G.R. No. 204238), p. 170.

228 Rollo (G.R. Nos. 203818-19), p. 119.

229 Rollo (G.R. No. 203936), p. 73.

230 Rollo (G.R. No. 204370), p. 92.

231 Rollo (G.R. No. 204402), p. 72.

232 Rollo (G.R. No. 204435), p. 91.

233 Rollo (G.R. No. 204436), p. 186.

234 Rollo (G.R. No. 204484), p. 60.

235 Rollo (G.R. No. 204490), p. 79.

The Lawphil Project - Arellano Law Foundation

CONCURRING AND DISSENTING OPINION

LEONEN, J.:

I agree with the ponencia in substance, but dissent in so far as there is no finding of grave abuse of
discretion on the part of the COMELEC.

National political parties may participate in party list elections, provided that they have no candidate for
legislative districts. The constitution disqualifies political parties, which have candidates for legislative
districts, from the party list system.1 I also agree that they need not be organized sectorally and/or
represent the "marginalized and underrepresented".

We take this opportunity to take a harder look at article VI section 5(1) and (2) in the light of article II
section 1 of the Constitution. We now benefit from hindsight as we are all witness to the aftermath of
the doctrines enunciated in Ang Bagong Bayani-OFW Labor Party v. COMELEC2 as qualified by Veterans
Federation Party v COMELEC3 and Barangay Association for National Advancement and Transparency v
COMELEC4.
In my view, the Constitutional provisions have always created space for "national, regional and sectoral
parties and organizations" to join the party list system. It is textually clear that national political parties
or regional organizations do not need to be organized on sectoral lines. Sectoral parties or organizations
belong to a different category of participants in the party list system.

Moreover, there is no constitutional requirement that all those who participate in the party list system
"must represent the marginalized and underrepresented groups" as mentioned in Republic Act No.
79415. This law is unconstitutional in so far as it makes a requirement that is not supported by the plain
text of the Constitution.

There is also a constitutional difference between the political parties that support those who are
candidates for legislative districts and those that participate in the party list system. It is inconsistent for
national political parties who have candidates for legislative districts to also run for party list. This, too, is
the clear implication from the text of article VI, section 5(1) of the Constitution.

The insistence on the criteria of "marginalized and underrepresented"6 has caused so much chaos to the
point of absurdity in our party list system. It is too ambiguous so as to invite invidious intervention on
the part of COMELEC, endangering the fundamental rights to suffrage of our people. Hewing more
closely with the text of the Constitution makes more sense under the present circumstances.

Besides, there was no clear majority in support of the ratio decidendi relevant to our present cases in the
case of Ang Bagong Bayani et al. v. COMELEC7 and BANAT v. COMELEC8.

I vote for the grant of the Petitions and the nullification of COMELEC Resolution No. 9513, s. August 2,
2012. This will have the effect of reinstating the registration of thirty nine (39) existing party list groups
that have already registered for the 2010 elections especially those that have won seats in the current
Congress. This will also automatically remand the thirteen (13) cases of new party list registrants for
proper processing and evaluation by the Commission on Elections.

Textual analysis of the relevant provisions

Different kind of political party in the party list system

The core principle that defines the relationship between our government and those that it governs is
captured in the constitutional phrase that ours is a "democratic and republican state".9 A democratic
and republican state is founded on effective representation. It is also founded on the idea that it is the
electorate's choices that must be given full consideration.10 We must always be sensitive in our crafting
of doctrines lest the guardians of our electoral system be empowered to silence those who wish to offer
their representation. We cannot replace the needed experience of our people to mature as citizens in
our electorate.

We should read article VI, section 5 (1) and (2) in the light of these overarching consideration.

Article VI, section 5(1) provides:

"(1) The House of Representative shall be composed of not more than two hundred and fifty members,
unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the
provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective
inhabitants, and those who, as provided by law, shall be elected through a party list system of registered
national, regional and sectoral parties or organizations." (emphasis provided)

There are two types of representatives in the House of Representatives. Those in the first group are
"elected from legislative districts". Those in the second group are "elected through a party list system of
registered national, regional and sectoral parties and organizations."

The differences in terms of representation are clear.

Those who are elected from legislative districts will have their name in the ballot. They present their
persons as the potential agent of their electorate. It is their individual qualifications that will be assessed
by COMELEC on the basis of the Constitution and relevant statutes. Should there be disqualification it
would be their personal circumstances, which will be reviewed, in the proper case, by the House of
Representatives Electoral Tribunal (HRET). The individual representative can lose subsequent elections
for various reasons, including dissatisfaction from those that initially elected him/her into office.

Incidentally, those who present themselves for election by legislative districts may or may not be
supported by a registered political party. This may give them added political advantages in the electoral
exercise, which includes the goodwill, reputation and resources of the major political party they affiliate
with. However, it is not the nature of the political party that endorses them that is critical in assessing
the qualifications or disqualifications of the candidate.
The elected district representative in the House of Representative is directly accountable to his/her
electorate. The political party s/he affiliates with only shares that political accountability; but, only to a
certain extent. Good performance is usually rewarded with subsequent election to another term. It is the
elected representative, not the political party that will get re-elected. We can even take judicial notice
that party affiliation may change in subsequent elections for various reasons, without any effect on the
qualification of the elected representative.

The political party that affiliates those who participate in elections in legislative districts organize
primarily to have their candidates win. These political parties have avowed principles and platforms of
government.11 But, they will be known more through the personalities and popularity of their
candidates.12 Often, compromises occur in the political party’s philosophies in order to accommodate a
viable candidate.

This has been the usual role of political parties even before the 1987 Constitution.

The party list system is an attempt to introduce a new system of politics in our country, one where voters
choose platforms and principles primarily and candidate-nominees secondarily. As provided in the
Constitution, the party list system’s intentions are broader than simply to "ensure that those who are
marginalized and represented become lawmakers themselves".13

Historically, our electoral exercises privileged the popular and, perhaps, pedigreed individual candidate
over platforms and political programs.14 Political parties were convenient amalgamation of electoral
candidates from the national to the local level that gravitated towards a few of its leaders who could
marshall the resources to supplement the electoral campaigns of their members.15 Most elections were
choices between competing personalities often with very little discernible differences in their
interpretation and solutions for contemporary issues.16 The electorate chose on the bases of personality
and popularity; only after the candidates were elected to public offices will they later find out the
concrete political programs that the candidate will execute. Our history is replete with instances where
the programs that were executed lacked cohesion on the basis of principle.17 In a sense, our electoral
politics alienated and marginalized large parts of our population.

The party list system was introduced to challenge the status quo. It could not have been intended to
enhance and further entrench the same system. It is the party or the organization that is elected. It is the
party list group that authorizes, hopefully through a democratic process, a priority list of its nominees. It
is also the party list group that can delist or remove their nominees, and hence replace him or her,
should he or she act inconsistently with the avowed principles and platforms of governance of their
organization. In short, the party list system assists genuine political parties to evolve. Genuine political
parties enable true representation, and hence, provide the potential for us to realize a "democratic and
republican state".
Today, we are witness to the possibility of some party list groups that have maintained organizational
integrity to pose candidates for higher offices, i.e. the Senate. We can take judicial notice that two of the
candidates for the 2013 senatorial elections--who used to represent party list groups in the House of
Representatives--do not have the resources nor the pedigree and, therefore, are not of the same mould
as many of the usual politicians who view for that position. It is no accident that the party list system is
only confined to the House of Representatives. It is the nurturing ground to mature genuine political
parties and give them the experience and the ability to build constituencies for other elective public
offices.

In a sense, challenging the politics of personality by constitutionally entrenching the ability of political
parties and organizations to instill party discipline can redound to the benefit of those who have been
marginalized and underrepresented in the past. It makes it possible for nominees to be chosen on the
basis of their loyalty to principle and platform rather than their family affiliation. It encourages more
collective action by the membership of the party and hence will reduce the possibility that the party be
controlled only by a select few.

Thus, it is not only "for the marginalized and underrepresented in our midst… who wallow in poverty,
destitution and infirmity"18 that the party list system was enacted. Rather, it was for everyone in so far
as attempting a reform in our politics.

But, based on our recent experiences, requiring "national, regional and sectoral parties and
organizations" that participate in the party list system to be representatives of the "marginalized and
underrepresented sector" and be "marginalized and underrepresented themselves" is to engage in an
ambiguous and dangerous fiction that undermines the possibility for vibrant party politics in our country.
This requirement, in fact, was the very requirement that "gut the substance of the party list system".19

Worse, contrary to the text of the constitution, it fails to appreciate the true context of the party list
system.

No requirement that the party or organization be "marginalized and underrepresented"

The disqualification of two "green" or ecological parties20 and two "right wing" ideological groups21
(currently part of the party list sector in the present Congress) is based on the assessment of the
COMELEC en banc that they do not represent a "marginalized" sector and that the nominee themselves
do not appear to be marginalized.
It is inconceivable that the party list system framed in our Constitution make it impossible to
accommodate green or ecological parties of various political persuasions.

Environmental causes do not have as their constituency only those who are marginalized or
underrepresented. Neither do they only have for their constituency those "who wallow in poverty,
destitution and infirmity".22 In truth, all of us, regardless of economic class, are constituents of
ecological advocacies.

Also, political parties organized along ideological lines--the socialist or even right wing political parties--
are groups motivated by a their own narratives of our history, a vision of what society can be and how it
can get there. There is no limit to the economic class that can be gripped by the cogency of their
philosophies and the resulting political platforms. Allowing them space in the House of Representatives if
they have the constituency that can win them a seat will enrich the deliberations in that legislative
chamber. Having them voice out opinions--whether true or false--should make the choices of our
representatives richer. It will make the choices of our representatives more democratic.

Ideologically oriented parties work for the benefit of those who are marginalized and underrepresented,
but they do not necessarily come mainly from that economic class. Just a glance at the history of strong
political parties in different jurisdictions will show that it will be the public intellectuals within these
parties who will provide their rationale and continually guide their membership in the interpretation of
events and, thus, inform their movement forward.

Political ideologies have people with kindred ideas as their constituents. They may care for the
marginalized and underrepresented, but they are not themselves--nor for their effectivity in the House
of Representatives should we require that they can only come from that class.

Highlighting these groups in this opinion should not be mistaken as an endorsement of their platforms.
Rather, it should be seen as clear examples where interests and advocacies, which may not be within the
main focus of those who represent legislative districts, cry out for representation. Surely, it should be the
electorate, not the COMELEC, which should decide whether their groups should participate in our
legislative deliberations. That these groups could be excluded even before the vote is not what the party
list system is all about.

These two instances arising from the consolidated petitions we are considering clearly show why the text
of article VI, section 5 (2) provides:
"(2) The party-list representative shall constitute twenty per centum of the total number of
representatives including those under the party list. For three consecutive terms after the ratification of
this Constitution, one-half of the seats allocated to party-list shall be filled, as provided by law, by
selection or election from the labor, peasant, urban poor, indigenous cultural communities, women,
youth and such other sectors as may be provided by law, except the religious sectors." (emphasis
provided)

What is plain from a reading of the text is that the qualification as to reserved seats is applicable only for
the "three consecutive terms after the ratification" of the Constitution. Only one-half of the seats within
that period is reserved to the "sectors" that were enumerated, clearly implying that there are other
kinds of party list groups other than those who are sectoral.

To require that all the seats for party list representatives remain sectoral in one form or the other is
clearly and patently unconstitutional. It is not supported by the text. Its rationale and its actual effect is
not in accord with the spirit of these provisions.

Revisiting Ang Bagong Bayani et al v COMELEC

We are aware of the case of Ang Bagong Bayani v Comelec.23 In that case, the Court en banc declared
that political parties may participate in the party list system but that these political parties must be
organized sectorally to represent the "marginalized and underrepresented".

The reasoning of the ponencia of that case derived from his fundamental principle that:

"...The requisite character of these parties or organizations must be consistent with the purpose of the
party list system, as laid down in the Constitution and RA 7941."24

The ponencia then proceeded to put the interpretation of a statute at par with the text of article VI,
section 5 (1) and (2) the Constitution, thus:

"The foregoing provision on the party list system is not self-executory. It is, in fact, interspersed with
phrases like ‘in accordance with law’ or ‘as may be provided by law’; it was thus up to Congress to sculpt
in granite the lofty objective of the Constitution."25
The 1987 Constitution is a complete document. Every provision should be read in the context of all the
other provisions so that contours of constitutional policy are made clear.26 To claim that the framers of
the Constitution left it to Congress to complete the very framework of the party list system is to question
the fundamental character of our constitution. The phrases "in accordance with law" and "as may be
provided by law" is not an invitation to the members of Congress to continue the work of the constituent
assembly that crafted the Constitution. Constitutional policy is to be derived from the text of the
constitution in the light of its context in the document and considering the contemporary impact of
relevant precedents.

From constitutional policy, Congress then details the workings of the policy through law. The
Constitution remains the fundamental and basic law with a more dominant interpretative position vis-a-
vis statute. It has no equal within our normative system.

Article VI, sections 5 (1) and (2) already imply a complete Constitutional framework for the party list
system.

Congress cannot add the concept of "proportional representation". Congress cannot pass a law so that
we read in the text of the Constitution the requirement that even national and regional parties or
organizations should likewise be sectoral. Certainly Congress cannot pass a law so that even the one-half
that was not reserved for sectoral representatives even during the first three consecutive terms after the
ratification of the Constitution should now only be composed of sectoral representatives.

There were strong cogent dissenting opinions coming from Justices Mendoza and Vitug when Ang
Bagong Bayani v. COMELEC was decided in 2001.27 Only six (6) justices concurred with the reasoning of
the ponencia. Two justices voted only in the result. Five (5) justices dissented. Four (4) of them joining
the dissenting opinion of Justice Vicente Mendoza. There was no majority therefore in upholding the
reasoning and ratio decidendi proposed by the ponencia in that case. It was a divided court, one where
there was a majority to sustain the result but not enough to establish doctrine.

It was even a more divided court when the same issues were tackled in the case of BANAT v. COMELEC in
2009.28

Ostensibly, the rationale of the majority in BANAT was to prevent major political parties from dominating
organizations of the marginalized. Citing the concurring and dissenting opinion of then Chief Justice
Puno:

"....There is no gainsaying the fact that the party-list parties are no match to our traditional political
parties in the political arena. This is borne out in the party list elections held in 2001 where major
political parties were initially allowed to campaign and be voted for. The results confirmed the fear
expressed by some commissioners in the Constitutional Commission that major political parties would
figure in the disproportionate distribution of votes: of the 162 parties which participated, the seven
major political parties made it to the top 50."29

The premise of course was the argument that major political parties that support candidates for
legislative districts were to be allowed to participate in the party-list system. This is not the reading
proposed today of the Constitution. Furthermore, the opinion failed to foresee that even parties and
organizations that claim to represent the "marginalized" could crowd out each other further weakening
the system.

Not only do we vote today without a precedent having a clear vote, we also do so with the benefit of
hindsight.

"Marginalized and underrepresented" is ambiguous

There is another reason why we cannot fully subscribe to the concept of "marginalized and
underrepresented". It is too ambiguous. There can be no consistent judicially discernible standard for
the COMELEC to apply. It thus invites invidious intervention from COMELEC to undermine the right of
suffrage of the groups that want to vie for representation. Indirectly, it also violates the right of suffrage
of the electorate. COMELEC substituted its judgment for that of the electorate. It thus acted arbitrarily
and beyond its jurisdiction.

In none of the Orders of the COMELEC in question was there a definition of what it is to be socially
marginalized. No empirical studies have informed COMELEC’s determination as to which groups are
"underrepresented" in government. In fact, there is no indication as to what the characteristics of an
individual's or group’s identity would lead the COMELEC en banc to consider that they were a "sector".

To the COMELEC en banc, for instance, the following are not marginalized or underrepresented sectors:
"Bicolanos",30 "young professionals like drug counselors and lecturers",31 rural energy consumers,32
"peasants, urban poor, workers and nationalistic individuals who have stakes in promoting security of the
country against insurgency criminality and their roots in economic poverty",33 "persons imprisoned
without proof of guilt beyond reasonable doubt",34 those who advocate "to publicly oppose, denounce
and counter, communism in all its form in the Filipino society";35 "environmental enthusiasts intending
to take are of, protect and save Mother Earth",36 "agricultural and cooperative sectors";37
"businessmen, civil society groups, politicians and ordinary citizens advocating genuine people
empowerment, social justice, and environmental protection and utilization for sustainable
development";38 "artists";39

"Bisayans";40 Ilonggos.41

What is plain is that the COMELEC declared ex cathedra sans any standard what were the "marginalized
and underrepresented sectors." This, in my opinion, constitutes grave abuse of discretion on the part of
the COMELEC. We are now asked to confirm their actions. We are asked to affirm that COMELEC knew
what a "marginalized and underrepresented sector" was when they saw one.

COMELEC’s process was a modern day inquisition reminiscent of the medieval hunt for heretics and
witches, a spectacle which may in a few cases weed out the sham organization. But it was a spectacle
nonetheless fraught with too many vulnerabilities that cannot be constitutionally valid. It constitutes
grave abuse of discretion.

As guardians of the text and values congealed in our Constitution, we should not lend our imprimatur to
both the basis and the procedure deployed by COMELEC in this case.

After all, we have a due process clause still in place.42 Regardless of the nature of the power that
COMELEC deployed--whether it was administrative or quasi-judicial--the parties were entitled to have a
standard that they could apply in their situation so that they could properly discern whether their factual
situation deserved registration or disqualification.

Neither was it possible for COMELEC to come up with a standard. Even Rep. Act No. 7941 was
ambiguously worded.43 There was no workable definition of "marginalized", "underrepresented" and
"sector."44

Neither would it have been possible for Congress to define these concepts. In the first place, our
decisions have not given them guidance. In the second place, we could not give guidance because it is
not in the Constitution and could not be derived from its provisions. This is also apart from the reality
that "identity", "sector", "marginalized" and "underrepresented" are heavily contested concepts in the
fields of social science and philosophy.45

The fallacy of representation by "marginalized and underrepresented" groups

It is possible under our system for a party list group representing indigenous peoples to be elected by
peoples who do not belong to their sector but from a vote-rich legislative district. The same is true with
a party list group allegedly of security guards.46 They, too, can get elected without the consent of
majority of all the security guards in this country but simply from the required number allowed by our
formula in BANAT v COMELEC.47

In practice, we have seen the possibility for these "marginalized and underrepresented" party list groups
being elected simply by the required vote in some legislative districts.

This sham produces the failure in representation. It undermines the spirit of the party list system,
violates the principle of representation inherent in a democratic and republican state, and weakens--
rather than strengthen--the abilities of the "marginalized and underrepresented" to become lawmakers
themselves. Constitutional construction cannot lose sight of how doctrines can cause realities that will
undermine the very spirit of the text of our Constitution.48

Allowing the existence of strong national and regional parties or organizations in the party list system
have better chances of representing the voices of the "marginalized and underrepresented. It will also
allow views, standpoints and ideologies sidelined by the pragmatic politics required for political parties
participating in legislative districts to be represented in the

House of Representatives. It will also encourage the concept of being multi-sectoral and therefore the
strengthening of political platforms.

To allow this to happen only requires that we maintain full fealty to the textual content of our
Constitution. It is "a party-list system of registered national, regional, and sectoral parties or
organizations."49 Nothing more, nothing less.

Requirements for Party List Groups

Preferably, party list groups should represent the marginalized and underrepresented in our society.
Preferably, they may not be marginalized themselves but that they may also subscribe to political
platforms that have the improvement of those who are politically marginalized and economically
destitute as their catapulting passion. But, this cannot be the constitutional requirements that will guide
legislation and actions on the part of the Commission on Election.
I propose instead the following benchmarks:

First, the party list system includes national, regional and sectoral parties and organizations;

Second, there is no need to show that they represent the "marginalized and underrepresented".
However, they will have to clearly show how their plans will impact on the "marginalized and
underrepresented". Should the party list group prefer to represent a sector, then our rulings in Ang
Bagong Bayani50 and BANAT51 will apply to them;

Third, the parties or organizations that participate in the party list system must not also be a participant
in the election of representatives for the legislative districts. In other words, political parties that field
candidates for legislative districts cannot also participate in the party list system;

Fourth, the parties or organizations must have political platforms guided by a vision of society, an
understanding of history, a statement of their philosophies and how this translates into realistic political
platforms;

Fifth, the parties or organizations--not only the nominees--must have concrete and verifiable track
record of political participation showing their translation of their political platforms into action;

Sixth, the parties or organizations that apply for registration must be organized solely for the purpose of
participating in electoral exercises;

Seventh, they must have existed for a considerable period, such as three (3) years, prior to their
registration. Within that period they should be able to show concrete activities that are in line with their
political platforms;

Eighth, they must have such numbers in their actual active membership roster so as to be able to mount
a credible campaign for purpose of enticing their audience (national, regional or sectoral) for their
election;

Ninth, a substantial number of these members must have participated in the political activities of the
organization;
Tenth, the party list group must have a governing structure that is not only democratically elected but
also one which is not dominated by the nominees themselves;

Eleventh, the nominees of the political party must be selected through a transparent and democratic
process;

Twelfth, the source of the funding and other resources used by the party or organization must be clear
and should not point to a few dominant contributors specifically of individuals with families that are or
have participated in the elections for representatives of legislative districts;

Thirteenth, the political party or party list organization must be able to win within the two elections
subsequent to their registration;

Fourteenth, they must not espouse violence; and

Fifteenth, the party list group is not a religious organization.

Disqualification of existing registered party list groups Jurisdiction of the COMELEC

With respect to existing registered party list groups, jurisdiction to disqualify is clearly reposed on the
House of Representatives Electoral Tribunal (HRET). The Constitution in article VI, section 17 clearly
provides:

"Sec. 17. The Senate and the House of Representatives shall each have a Electoral Tribunal which shall be
the sole judge of all contests relating to the election, returns, and qualifications of their respective
Members..."

A more specific provision in the Constitution with respect to disqualifying registered political party list
groups should prevail over the more general powers of the COMELEC to enforce and administer election
laws. Besides, that the HRET is the "sole judge" clearly shows that the constitutional intention is to
exclude all the rest.52
WHEREFORE, in view of the foregoing, I vote to:

GRANT the Petitions and NULLIFY COMELEC Resolution No. 9135 and all the COMELEC Resolutions raised
in these consolidated cases; and

REMAND the cases to COMELEC for proper proceedings in line with our decision.

MARVIC MARION VICTOR F. LEONEN

Associate Justice

Footnotes

1 CONSTITUTION, Art. VI, Sec. 5, par. (1).

2 G.R. No. 147589, June 26, 2001, 359 SCRA 698.

3 G.R. No. 136781, October 6, 2000, 342 SCRA 244.

4 G.R. No. 179271, April 21, 2009. 586 SCRA 211. But, by a vote of 8 joining the opinion of Puno, C.J. the
court upheld Veterans disallowing political parties from participating in the party list elections.

5 Republic Act. No. 7941 (1995).

6 Supra note 2, see first, second and sixth and seventh requirements:

"First, the political party, sector, organization or coalitions must represent the marginalized and
underrepresented groups identified in Section 5 of RA 7941. In other words, it must show--through its
constitution, articles of incorporation, by laws, history, platform of government and track record--that it
represents and seeks to uplift marginalized and underrepresented sectors. Verily, majority of its
membership should belong to the marginalized and underrepresented ...
"Second, while even major political parties are expressly allowed by RA 7941 and the Constitution to
participate in the party list system, they must comply with the declared statutory policy of enabling
‘Filipino citizens belonging to marginalized and underrepresented sectors...to be elected to the House of
Representatives.’ In other words, while they are not disqualified merely on the ground that they are
political parties, they must show, however, that they represent the interests of the marginalized and
underrepresented..."

xxx

"Sixth, the party or organization must not only comply with the requirements of the law; its nominees
must likewise do so ..."

"Seventh, not only the candidate party or organization must represent marginalized and
underrepresented sectors; so also must its nominees..."

7 Supra note 2.

8 Supra note 4; Infra note 29.

9 CONSTITUTION, Art. II, Sec. 1.

10 See Moya v. Del Fiero, G.R. No. L-46863, November 18, 1939,

11 See for instance, Lande, Carl H., Parties and Politics in the Philippines, Asian Survey, Vol. 8, No. 9 (Sep
1968) pp 725-747 or Teehankee, Julio, Electoral Politics in the Philippines, in Electoral Politics in
Southeast Asia, Aurel Croissant, ed.,Friedrich Ebert Stiftung, 2002.

12 Id.; Lo, Barnaby, Fame, Family Dominate Key Philippines Election, CBS News, May 10, 2010,
<http://www.cbsnews.com/8301-503543_162-20004523-503543.html> (visited March 7, 2013).

13 See CONSTITUTION, Art. IX(C), Sec. 6.

14 Supra note 11.

15 Id.

16 Supra note 12.

17 Supra note 11.

18 Supra note 2.

19 See Supra note 2. (This was the ostensible justification for not allowing all "national, regional and
sectoral parties and organizations" as provided in the Constitution to participate).

20 GREENFORCE in G.R. No. 204239 and KALIKASAN in G.R. No. 204402.

21 ANAD in G.R. No. 204094 and BANTAY in G.R. No. 204141.

22 Supra notes 2 & 4.

23 Supra note 2.

24 Id., 359 SCRA 698, 717

25 Id., 359 SCRA 698, 718

26 Chavez v. JBC, G.R. No. 202242, July 17, 2012.

27 See supra note 2 at 733-761.

28 See supra note 4. (Voting to disallow major political parties from participating directly or indirectly in
the party list system were eight justices, namely: Puno, Quisumbing Ynares-Santiago, Austria-Martinez,
Corona, Chico-Nazario, Velasco, and Leonardo-de Castro. Voting to allow major political parties in the
party list system were seven justices, namely: Carpio, Carpio Morales, Tinga, Nachura, Brion, Peralta, and
Bersamin).

29 Id., per Puno Concurring and Dissenting opinion at 258-259.

30 COMELEC Resolution dated October 20, 2012, SPP No. 12-154 (PLM) and SPP No. 12-177 (PLM), G.R.
No. 203818 (Ako Bikol Political Party, AKB).

31 COMELEC Omnibus Resolution dated October 11, 2012, SPP 12-220 (PLM), G.R. No. 203981
(UNIMAD).

32 COMELEC Resolution dated October 16, 2012, SPP 12-260 (PLM), G.R. No. 203960 (1-CARE).

33 COMELEC Resolution dated October 24, 2012, SPP 12-229 (PLM), G.R. No. 203958 (BANTAY).

34 COMELEC Resolution dated October 24, 2012, SPP 12-015 (PLM), G.R. No. 203958 (KAKUSA).

35 COMELEC Resolution dated November 7, 2012, SPP 12-185 (PLM), G.R. No. 204094 (ANAD)

36 COMELEC Resolution dated November 7, 2012, SPP 12-060 (PLM), G.R. No. 204239 (GREENFORCE)

37 COMELEC Resolution dated November 28, 2012, SPP 12-136 (PLM), G.R. No. 204356 (BUTIL)

38 COMELEC Resolution dated December 5, 2012, SPP 11-002, G.R. No. 204484 (PBB)

39 COMELEC Resolution dated November 23, 2012, SPP 12-099, G.R. No. 204379 (ASIN)

40 COMELEC Resolution dated November 29, 2012, SPP 12-011 (PP), G.R. No. 204370 (AAB)
41 COMELEC Resolution dated December 4, 2012, SPP 12-009 (PP), G.R. No. 204379 (AI)

42 See CONSTITUTION, Art. III, Sec. 1.

43 See Republic Act No. 7941 (1995), Sec. 2-3.

44 See Republic Act No. 7941 (1995), Sec. 3.

45 See for instance, Iris Marion Young, Justice and the Politics of Difference, (2011).

46 ANG GALING PINOY (AG) in G.R. No. 204428.

47 Supra note 4.

48 See for instance Association of Small Landowners v. DAR, G.R. No. 78742, July 14, 1989 [per Cruz J.]
on allowing payment of just compensation in cash and bonds: "...We do not mind admitting that a
certain degree of pragmatism has influenced our decision on this issue, but after all this Court is not a
cloistered institution removed from the realities and demands of society or oblivious to the need for its
enhancement."
 G.R. No. 190582 April 8, 2010

ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO, Petitioner,

vs.

COMMISSION ON ELECTIONS Respondent.

DECISION

DEL CASTILLO, J.:

... [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of
freedom. The test of its substance is the right to differ as to things that touch the heart of the existing
order.

Justice Robert A. Jackson

West Virginia State Board of Education v. Barnette1

One unavoidable consequence of everyone having the freedom to choose is that others may make
different choices – choices we would not make for ourselves, choices we may disapprove of, even
choices that may shock or offend or anger us. However, choices are not to be legally prohibited merely
because they are different, and the right to disagree and debate about important questions of public
policy is a core value protected by our Bill of Rights. Indeed, our democracy is built on genuine
recognition of, and respect for, diversity and difference in opinion.

Since ancient times, society has grappled with deep disagreements about the definitions and demands
of morality. In many cases, where moral convictions are concerned, harmony among those theoretically
opposed is an insurmountable goal. Yet herein lies the paradox – philosophical justifications about what
is moral are indispensable and yet at the same time powerless to create agreement. This Court
recognizes, however, that practical solutions are preferable to ideological stalemates; accommodation is
better than intransigence; reason more worthy than rhetoric. This will allow persons of diverse
viewpoints to live together, if not harmoniously, then, at least, civilly.
Factual Background

This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of
preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions of
the Commission on Elections (COMELEC) dated November 11, 20092 (the First Assailed Resolution) and
December 16, 20093 (the Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed
Resolutions). The case has its roots in the COMELEC’s refusal to accredit Ang Ladlad as a party-list
organization under Republic Act (RA) No. 7941, otherwise known as the Party-List System Act.4

Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays,
bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for
registration with the COMELEC in 2006. The application for accreditation was denied on the ground that
the organization had no substantial membership base. On August 17, 2009, Ang Ladlad again filed a
Petition5 for registration with the COMELEC.

Before the COMELEC, petitioner argued that the LGBT community is a marginalized and under-
represented sector that is particularly disadvantaged because of their sexual orientation and gender
identity; that LGBTs are victims of exclusion, discrimination, and violence; that because of negative
societal attitudes, LGBTs are constrained to hide their sexual orientation; and that Ang Ladlad complied
with the 8-point guidelines enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v.
Commission on Elections.6 Ang Ladlad laid out its national membership base consisting of individual
members and organizational supporters, and outlined its platform of governance.7

On November 11, 2009, after admitting the petitioner’s evidence, the COMELEC (Second Division)
dismissed the Petition on moral grounds, stating that:

x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual
and Transgender (LGBT) Community, thus:

x x x a marginalized and under-represented sector that is particularly disadvantaged because of their

sexual orientation and gender identity.

and proceeded to define sexual orientation as that which:

x x x refers to a person’s capacity for profound emotional, affectional and sexual attraction to, and
intimate and sexual relations with, individuals of a different gender, of the same gender, or more than
one gender."

This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which
offends religious beliefs. In Romans 1:26, 27, Paul wrote:

For this cause God gave them up into vile affections, for even their women did change the natural use
into that which is against nature: And likewise also the men, leaving the natural use of the woman,
burned in their lust one toward another; men with men working that which is unseemly, and receiving in
themselves that recompense of their error which was meet.

In the Koran, the hereunder verses are pertinent:

For ye practice your lusts on men in preference to women "ye are indeed a people transgressing beyond
bounds." (7.81) "And we rained down on them a shower (of brimstone): Then see what was the end of
those who indulged in sin and crime!" (7:84) "He said: "O my Lord! Help Thou me against people who do
mischief" (29:30).

As correctly pointed out by the Law Department in its Comment dated October 2, 2008:

The ANG LADLAD apparently advocates sexual immorality as indicated in the Petition’s par. 6F:
‘Consensual partnerships or relationships by gays and lesbians who are already of age’. It is further
indicated in par. 24 of the Petition which waves for the record: ‘In 2007, Men Having Sex with Men or
MSMs in the Philippines were estimated as 670,000 (Genesis 19 is the history of Sodom and Gomorrah).

Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation. Hence,
pertinent provisions of the Civil Code and the Revised Penal Code are deemed part of the requirement to
be complied with for accreditation.

ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as ‘Any act, omission,
establishment, business, condition of property, or anything else which x x x (3) shocks, defies; or
disregards decency or morality x x x
It also collides with Article 1306 of the Civil Code: ‘The contracting parties may establish such
stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary
to law, morals, good customs, public order or public policy. Art 1409 of the Civil Code provides that
‘Contracts whose cause, object or purpose is contrary to law, morals, good customs, public order or
public policy’ are inexistent and void from the beginning.

Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended,
penalizes ‘Immoral doctrines, obscene publications and exhibitions and indecent shows’ as follows:

Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. — The penalty
of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such
imprisonment and fine, shall be imposed upon:

1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals;

2. (a) The authors of obscene literature, published with their knowledge in any form; the editors
publishing such literature; and the owners/operators of the establishment selling the same;

(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or immoral plays,
scenes, acts or shows, it being understood that the obscene literature or indecent or immoral plays,
scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those
which: (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for
violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of
prohibited drugs; and (5) are contrary to law, public order, morals, good customs, established policies,
lawful orders, decrees and edicts.

3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are
offensive to morals.

Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but likewise
for not being truthful when it said that it "or any of its nominees/party-list representatives have not
violated or failed to comply with laws, rules, or regulations relating to the elections."

Furthermore, should this Commission grant the petition, we will be exposing our youth to an
environment that does not conform to the teachings of our faith. Lehman Strauss, a famous bible
teacher and writer in the U.S.A. said in one article that "older practicing homosexuals are a threat to the
youth." As an agency of the government, ours too is the State’s avowed duty under Section 13, Article II
of the Constitution to protect our youth from moral and spiritual degradation.8

When Ang Ladlad sought reconsideration,9 three commissioners voted to overturn the First Assailed
Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco), while
three commissioners voted to deny Ang Ladlad’s Motion for Reconsideration (Commissioners Nicodemo
T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking the tie and speaking
for the majority in his Separate Opinion, upheld the First Assailed Resolution, stating that:

I. The Spirit of Republic Act No. 7941

Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it has
properly proven its under-representation and marginalization, it cannot be said that Ladlad’s expressed
sexual orientations per se would benefit the nation as a whole.

Section 2 of the party-list law unequivocally states that the purpose of the party-list system of electing
congressional representatives is to enable Filipino citizens belonging to marginalized and under-
represented sectors, organizations and parties, and who lack well-defined political constituencies but
who could contribute to the formulation and enactment of appropriate legislation that will benefit the
nation as a whole, to become members of the House of Representatives.

If entry into the party-list system would depend only on the ability of an organization to represent its
constituencies, then all representative organizations would have found themselves into the party-list
race. But that is not the intention of the framers of the law. The party-list system is not a tool to advocate
tolerance and acceptance of misunderstood persons or groups of persons. Rather, the party-list system is
a tool for the realization of aspirations of marginalized individuals whose interests are also the nation’s –
only that their interests have not been brought to the attention of the nation because of their under
representation. Until the time comes when Ladlad is able to justify that having mixed sexual orientations
and transgender identities is beneficial to the nation, its application for accreditation under the party-list
system will remain just that.

II. No substantial differentiation

In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts do not
recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a "special class" of individuals. x x x
Significantly, it has also been held that homosexuality is not a constitutionally protected fundamental
right, and that "nothing in the U.S. Constitution discloses a comparable intent to protect or promote the
social or legal equality of homosexual relations," as in the case of race or religion or belief.

xxxx

Thus, even if society’s understanding, tolerance, and acceptance of LGBT’s is elevated, there can be no
denying that Ladlad constituencies are still males and females, and they will remain either male or
female protected by the same Bill of Rights that applies to all citizens alike.

xxxx

IV. Public Morals

x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices. Neither
is there any attempt to any particular religious group’s moral rules on Ladlad. Rather, what are being
adopted as moral parameters and precepts are generally accepted public morals. They are possibly
religious-based, but as a society, the Philippines cannot ignore its more than 500 years of Muslim and
Christian upbringing, such that some moral precepts espoused by said religions have sipped [sic] into
society and these are not publicly accepted moral norms.

V. Legal Provisions

But above morality and social norms, they have become part of the law of the land. Article 201 of the
Revised Penal Code imposes the penalty of prision mayor upon "Those who shall publicly expound or
proclaim doctrines openly contrary to public morals." It penalizes "immoral doctrines, obscene
publications and exhibition and indecent shows." "Ang Ladlad" apparently falls under these legal
provisions. This is clear from its Petition’s paragraph 6F: "Consensual partnerships or relationships by
gays and lesbians who are already of age’ It is further indicated in par. 24 of the Petition which waves for
the record: ‘In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000.
Moreoever, Article 694 of the Civil Code defines "nuisance" as any act, omission x x x or anything else x x
x which shocks, defies or disregards decency or morality x x x." These are all unlawful.10

On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions
and direct the COMELEC to grant Ang Ladlad’s application for accreditation. Ang Ladlad also sought the
issuance ex parte of a preliminary mandatory injunction against the COMELEC, which had previously
announced that it would begin printing the final ballots for the May 2010 elections by January 25, 2010.

On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on behalf of
COMELEC not later than 12:00 noon of January 11, 2010.11 Instead of filing a Comment, however, the
OSG filed a Motion for Extension, requesting that it be given until January 16, 2010 to Comment.12
Somewhat surprisingly, the OSG later filed a Comment in support of petitioner’s application.13 Thus, in
order to give COMELEC the opportunity to fully ventilate its position, we required it to file its own
comment.14 The COMELEC, through its Law Department, filed its Comment on February 2, 2010.15

In the meantime, due to the urgency of the petition, we issued a temporary restraining order on January
12, 2010, effective immediately and continuing until further orders from this Court, directing the
COMELEC to cease and desist from implementing the Assailed Resolutions.16

Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to
Appear as Amicus Curiae, attaching thereto its Comment-in-Intervention.17 The CHR opined that the
denial of Ang Ladlad’s petition on moral grounds violated the standards and principles of the
Constitution, the Universal Declaration of Human Rights (UDHR), and the International Covenant on Civil
and Political Rights (ICCPR). On January 19, 2010, we granted the CHR’s motion to intervene.

On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene18 which motion was granted
on February 2, 2010.19

The Parties’ Arguments

Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious
dogma, violated the constitutional guarantees against the establishment of religion. Petitioner also
claimed that the Assailed Resolutions contravened its constitutional rights to privacy, freedom of speech
and assembly, and equal protection of laws, as well as constituted violations of the Philippines’
international obligations against discrimination based on sexual orientation.

The OSG concurred with Ang Ladlad’s petition and argued that the COMELEC erred in denying
petitioner’s application for registration since there was no basis for COMELEC’s allegations of immorality.
It also opined that LGBTs have their own special interests and concerns which should have been
recognized by the COMELEC as a separate classification. However, insofar as the purported violations of
petitioner’s freedom of speech, expression, and assembly were concerned, the OSG maintained that
there had been no restrictions on these rights.
In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national
political agenda to benefit the nation and that the petition was validly dismissed on moral grounds. It
also argued for the first time that the LGBT sector is not among the sectors enumerated by the
Constitution and RA 7941, and that petitioner made untruthful statements in its petition when it alleged
its national existence contrary to actual verification reports by COMELEC’s field personnel.

Our Ruling

We grant the petition.

Compliance with the Requirements of the Constitution and Republic Act No. 7941

The COMELEC denied Ang Ladlad’s application for registration on the ground that the LGBT sector is
neither enumerated in the Constitution and RA 7941, nor is it associated with or related to any of the
sectors in the enumeration.

Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only
those sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk,
urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas
workers, and professionals) may be registered under the party-list system. As we explicitly ruled in Ang
Bagong Bayani-OFW Labor Party v. Commission on Elections,20 "the enumeration of marginalized and
under-represented sectors is not exclusive". The crucial element is not whether a sector is specifically
enumerated, but whether a particular organization complies with the requirements of the Constitution
and RA 7941.

Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged that
it had nationwide existence through its members and affiliate organizations. The COMELEC claims that
upon verification by its field personnel, it was shown that "save for a few isolated places in the country,
petitioner does not exist in almost all provinces in the country."21

This argument that "petitioner made untruthful statements in its petition when it alleged its national
existence" is a new one; previously, the COMELEC claimed that petitioner was "not being truthful when
it said that it or any of its nominees/party-list representatives have not violated or failed to comply with
laws, rules, or regulations relating to the elections." Nowhere was this ground for denial of petitioner’s
accreditation mentioned or even alluded to in the Assailed Resolutions. This, in itself, is quite curious,
considering that the reports of petitioner’s alleged non-existence were already available to the COMELEC
prior to the issuance of the First Assailed Resolution. At best, this is irregular procedure; at worst, a
belated afterthought, a change in respondent’s theory, and a serious violation of petitioner’s right to
procedural due process.

Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlad’s initial
petition shows that it never claimed to exist in each province of the Philippines. Rather, petitioner
alleged that the LGBT community in the Philippines was estimated to constitute at least 670,000
persons; that it had 16,100 affiliates and members around the country, and 4,044 members in its
electronic discussion group.22 Ang Ladlad also represented itself to be "a national LGBT umbrella
organization with affiliates around the Philippines composed of the following LGBT networks:"

§ Abra Gay Association

§ Aklan Butterfly Brigade (ABB) – Aklan

§ Albay Gay Association

§ Arts Center of Cabanatuan City – Nueva Ecija

§ Boys Legion – Metro Manila

§ Cagayan de Oro People Like Us (CDO PLUS)

§ Can’t Live in the Closet, Inc. (CLIC) – Metro Manila

§ Cebu Pride – Cebu City

§ Circle of Friends

§ Dipolog Gay Association – Zamboanga del Norte

§ Gay, Bisexual, & Transgender Youth Association (GABAY)

§ Gay and Lesbian Activists Network for Gender Equality (GALANG) – Metro Manila

§ Gay Men’s Support Group (GMSG) – Metro Manila

§ Gay United for Peace and Solidarity (GUPS) – Lanao del Norte

§ Iloilo City Gay Association – Iloilo City

§ Kabulig Writer’s Group – Camarines Sur

§ Lesbian Advocates Philippines, Inc. (LEAP)

§ LUMINA – Baguio City

§ Marikina Gay Association – Metro Manila

§ Metropolitan Community Church (MCC) – Metro Manila

§ Naga City Gay Association – Naga City

§ ONE BACARDI

§ Order of St. Aelred (OSAe) – Metro Manila

§ PUP LAKAN

§ RADAR PRIDEWEAR
§ Rainbow Rights Project (R-Rights), Inc. – Metro Manila

§ San Jose del Monte Gay Association – Bulacan

§ Sining Kayumanggi Royal Family – Rizal

§ Society of Transexual Women of the Philippines (STRAP) – Metro Manila

§ Soul Jive – Antipolo, Rizal

§ The Link – Davao City

§ Tayabas Gay Association – Quezon

§ Women’s Bisexual Network – Metro Manila

§ Zamboanga Gay Association – Zamboanga City23

Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no surprise
that they found that petitioner had no presence in any of these regions. In fact, if COMELEC’s findings
are to be believed, petitioner does not even exist in Quezon City, which is registered as Ang Ladlad’s
principal place of business.

Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the
legal requirements for accreditation. Indeed, aside from COMELEC’s moral objection and the belated
allegation of non-existence, nowhere in the records has the respondent ever found/ruled that Ang
Ladlad is not qualified to register as a party-list organization under any of the requisites under RA 7941
or the guidelines in Ang Bagong Bayani. The difference, COMELEC claims, lies in Ang Ladlad’s morality, or
lack thereof.

Religion as the Basis for Refusal to Accept Ang Ladlad’s Petition for Registration
Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof." At bottom, what our non-
establishment clause calls for is "government neutrality in religious matters."24 Clearly, "governmental
reliance on religious justification is inconsistent with this policy of neutrality."25 We thus find that it was
grave violation of the non-establishment clause for the COMELEC to utilize the Bible and the Koran to
justify the exclusion of Ang Ladlad.

Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead,
on whether the COMELEC is able to advance some justification for its rulings beyond mere conformity to
religious doctrine. Otherwise stated, government must act for secular purposes and in ways that have
primarily secular effects. As we held in Estrada v. Escritor:26

x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent of
Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may influence the civil public
order but public moral disputes may be resolved only on grounds articulable in secular terms."
Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the
resulting policies and morals would require conformity to what some might regard as religious programs
or agenda. The non-believers would therefore be compelled to conform to a standard of conduct
buttressed by a religious belief, i.e., to a "compelled religion," anathema to religious freedom. Likewise, if
government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and
thereby also tacitly disapprove contrary religious or non-religious views that would not support the
policy. As a result, government will not provide full religious freedom for all its citizens, or even make it
appear that those whose beliefs are disapproved are second-class citizens.1avvphi1

In other words, government action, including its proscription of immorality as expressed in criminal law
like concubinage, must have a secular purpose. That is, the government proscribes this conduct because
it is "detrimental (or dangerous) to those conditions upon which depend the existence and progress of
human society" and not because the conduct is proscribed by the beliefs of one religion or the other.
Although admittedly, moral judgments based on religion might have a compelling influence on those
engaged in public deliberations over what actions would be considered a moral disapprobation
punishable by law. After all, they might also be adherents of a religion and thus have religious opinions
and moral codes with a compelling influence on them; the human mind endeavors to regulate the
temporal and spiritual institutions of society in a uniform manner, harmonizing earth with heaven.
Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it
must have an articulable and discernible secular purpose and justification to pass scrutiny of the religion
clauses. x x x Recognizing the religious nature of the Filipinos and the elevating influence of religion in
society, however, the Philippine constitution's religion clauses prescribe not a strict but a benevolent
neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and interests
but at the same time strive to uphold religious liberty to the greatest extent possible within flexible
constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality
could allow for accommodation of morality based on religion, provided it does not offend compelling
state interests.27

Public Morals as a Ground to Deny Ang Ladlad’s Petition for Registration

Respondent suggests that although the moral condemnation of homosexuality and homosexual conduct
may be religion-based, it has long been transplanted into generally accepted public morals. The
COMELEC argues:

Petitioner’s accreditation was denied not necessarily because their group consists of LGBTs but because
of the danger it poses to the people especially the youth. Once it is recognized by the government, a
sector which believes that there is nothing wrong in having sexual relations with individuals of the same
gender is a bad example. It will bring down the standard of morals we cherish in our civilized society. Any
society without a set of moral precepts is in danger of losing its own existence.28

We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals
themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind
this censure – religious beliefs, convictions about the preservation of marriage, family, and procreation,
even dislike or distrust of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall
that the Philippines has not seen fit to criminalize homosexual conduct. Evidently, therefore, these
"generally accepted public morals" have not been convincingly transplanted into the realm of law.29

The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad.
Even the OSG agrees that "there should have been a finding by the COMELEC that the group’s members
have committed or are committing immoral acts."30 The OSG argues:

x x x A person may be sexually attracted to a person of the same gender, of a different gender, or more
than one gender, but mere attraction does not translate to immoral acts. There is a great divide between
thought and action. Reduction ad absurdum. If immoral thoughts could be penalized, COMELEC would
have its hands full of disqualification cases against both the "straights" and the gays." Certainly this is not
the intendment of the law.31

Respondent has failed to explain what societal ills are sought to be prevented, or why special protection
is required for the youth. Neither has the COMELEC condescended to justify its position that petitioner’s
admission into the party-list system would be so harmful as to irreparably damage the moral fabric of
society. We, of course, do not suggest that the state is wholly without authority to regulate matters
concerning morality, sexuality, and sexual relations, and we recognize that the government will and
should continue to restrict behavior considered detrimental to society. Nonetheless, we cannot
countenance advocates who, undoubtedly with the loftiest of intentions, situate morality on one end of
an argument or another, without bothering to go through the rigors of legal reasoning and explanation.
In this, the notion of morality is robbed of all value. Clearly then, the bare invocation of morality will not
remove an issue from our scrutiny.

We also find the COMELEC’s reference to purported violations of our penal and civil laws flimsy, at best;
disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as "any act, omission,
establishment, condition of property, or anything else which shocks, defies, or disregards decency or
morality," the remedies for which are a prosecution under the Revised Penal Code or any local
ordinance, a civil action, or abatement without judicial proceedings.32 A violation of Article 201 of the
Revised Penal Code, on the other hand, requires proof beyond reasonable doubt to support a criminal
conviction. It hardly needs to be emphasized that mere allegation of violation of laws is not proof, and a
mere blanket invocation of public morals cannot replace the institution of civil or criminal proceedings
and a judicial determination of liability or culpability.

As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to
justify exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlad’s
registration on purely moral grounds amounts more to a statement of dislike and disapproval of
homosexuals, rather than a tool to further any substantial public interest. Respondent’s blanket
justifications give rise to the inevitable conclusion that the COMELEC targets homosexuals themselves as
a class, not because of any particular morally reprehensible act. It is this selective targeting that
implicates our equal protection clause.

Equal Protection

Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor shall any person
be denied equal protection of the laws," courts have never interpreted the provision as an absolute
prohibition on classification. "Equality," said Aristotle, "consists in the same treatment of similar
persons."33 The equal protection clause guarantees that no person or class of persons shall be deprived
of the same protection of laws which is enjoyed by other persons or other classes in the same place and
in like circumstances.34

Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a
suspect class, we will uphold the classification as long as it bears a rational relationship to some
legitimate government end.35 In Central Bank Employees Association, Inc. v. Banko Sentral ng
Pilipinas,36 we declared that "[i]n our jurisdiction, the standard of analysis of equal protection
challenges x x x have followed the ‘rational basis’ test, coupled with a deferential attitude to legislative
classifications and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal
breach of the Constitution."37

The COMELEC posits that the majority of the Philippine population considers homosexual conduct as
immoral and unacceptable, and this constitutes sufficient reason to disqualify the petitioner.
Unfortunately for the respondent, the Philippine electorate has expressed no such belief. No law exists
to criminalize homosexual behavior or expressions or parties about homosexual behavior. Indeed, even if
we were to assume that public opinion is as the COMELEC describes it, the asserted state interest here –
that is, moral disapproval of an unpopular minority – is not a legitimate state interest that is sufficient to
satisfy rational basis review under the equal protection clause. The COMELEC’s differentiation, and its
unsubstantiated claim that Ang Ladlad cannot contribute to the formulation of legislation that would
benefit the nation, furthers no legitimate state interest other than disapproval of or dislike for a
disfavored group.

From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same
interest in participating in the party-list system on the same basis as other political parties similarly
situated. State intrusion in this case is equally burdensome. Hence, laws of general application should
apply with equal force to LGBTs, and they deserve to participate in the party-list system on the same
basis as other marginalized and under-represented sectors.

It bears stressing that our finding that COMELEC’s act of differentiating LGBTs from heterosexuals insofar
as the party-list system is concerned does not imply that any other law distinguishing between
heterosexuals and homosexuals under different circumstances would similarly fail. We disagree with the
OSG’s position that homosexuals are a class in themselves for the purposes of the equal protection
clause.38 We are not prepared to single out homosexuals as a separate class meriting special or
differentiated treatment. We have not received sufficient evidence to this effect, and it is simply
unnecessary to make such a ruling today. Petitioner itself has merely demanded that it be recognized
under the same basis as all other groups similarly situated, and that the COMELEC made "an
unwarranted and impermissible classification not justified by the circumstances of the case."

Freedom of Expression and Association

Under our system of laws, every group has the right to promote its agenda and attempt to persuade
society of the validity of its position through normal democratic means.39 It is in the public square that
deeply held convictions and differing opinions should be distilled and deliberated upon. As we held in
Estrada v. Escritor:40
In a democracy, this common agreement on political and moral ideas is distilled in the public square.
Where citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment
has access to the public square where people deliberate the order of their life together. Citizens are the
bearers of opinion, including opinion shaped by, or espousing religious belief, and these citizens have
equal access to the public square. In this representative democracy, the state is prohibited from
determining which convictions and moral judgments may be proposed for public deliberation. Through a
constitutionally designed process, the people deliberate and decide. Majority rule is a necessary
principle in this democratic governance. Thus, when public deliberation on moral judgments is finally
crystallized into law, the laws will largely reflect the beliefs and preferences of the majority, i.e., the
mainstream or median groups. Nevertheless, in the very act of adopting and accepting a constitution
and the limits it specifies – including protection of religious freedom "not only for a minority, however
small – not only for a majority, however large – but for each of us" – the majority imposes upon itself a
self-denying ordinance. It promises not to do what it otherwise could do: to ride roughshod over the
dissenting minorities.

Freedom of expression constitutes one of the essential foundations of a democratic society, and this
freedom applies not only to those that are favorably received but also to those that offend, shock, or
disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued.
Absent any compelling state interest, it is not for the COMELEC or this Court to impose its views on the
populace. Otherwise stated, the COMELEC is certainly not free to interfere with speech for no better
reason than promoting an approved message or discouraging a disfavored one.

This position gains even more force if one considers that homosexual conduct is not illegal in this
country. It follows that both expressions concerning one’s homosexuality and the activity of forming a
political association that supports LGBT individuals are protected as well.

Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception
that homosexual conduct violates public morality does not justify criminalizing same-sex conduct.41
European and United Nations judicial decisions have ruled in favor of gay rights claimants on both
privacy and equality grounds, citing general privacy and equal protection provisions in foreign and
international texts.42 To the extent that there is much to learn from other jurisdictions that have
reflected on the issues we face here, such jurisprudence is certainly illuminating. These foreign
authorities, while not formally binding on Philippine courts, may nevertheless have persuasive influence
on the Court’s analysis.

In the area of freedom of expression, for instance, United States courts have ruled that existing free
speech doctrines protect gay and lesbian rights to expressive conduct. In order to justify the prohibition
of a particular expression of opinion, public institutions must show that their actions were caused by
"something more than a mere desire to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint."43
With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its
vibrant human rights tradition, the European Court of Human Rights (ECHR) has repeatedly stated that a
political party may campaign for a change in the law or the constitutional structures of a state if it uses
legal and democratic means and the changes it proposes are consistent with democratic principles. The
ECHR has emphasized that political ideas that challenge the existing order and whose realization is
advocated by peaceful means must be afforded a proper opportunity of expression through the exercise
of the right of association, even if such ideas may seem shocking or unacceptable to the authorities or
the majority of the population.44 A political group should not be hindered solely because it seeks to
publicly debate controversial political issues in order to find solutions capable of satisfying everyone
concerned.45 Only if a political party incites violence or puts forward policies that are incompatible with
democracy does it fall outside the protection of the freedom of association guarantee.46

We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful,
offensive, or even defiant. They are entitled to hold and express that view. On the other hand, LGBTs and
their supporters, in all likelihood, believe with equal fervor that relationships between individuals of the
same sex are morally equivalent to heterosexual relationships. They, too, are entitled to hold and express
that view. However, as far as this Court is concerned, our democracy precludes using the religious or
moral views of one part of the community to exclude from consideration the values of other members of
the community.

Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may
be that this Decision will only serve to highlight the discrepancy between the rigid constitutional analysis
of this Court and the more complex moral sentiments of Filipinos. We do not suggest that public opinion,
even at its most liberal, reflect a clear-cut strong consensus favorable to gay rights claims and we neither
attempt nor expect to affect individual perceptions of homosexuality through this Decision.

The OSG argues that since there has been neither prior restraint nor subsequent punishment imposed
on Ang Ladlad, and its members have not been deprived of their right to voluntarily associate, then there
has been no restriction on their freedom of expression or association. The OSG argues that:

There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC] simply
exercised its authority to review and verify the qualifications of petitioner as a sectoral party applying to
participate in the party-list system. This lawful exercise of duty cannot be said to be a transgression of
Section 4, Article III of the Constitution.

xxxx
A denial of the petition for registration x x x does not deprive the members of the petitioner to freely
take part in the conduct of elections. Their right to vote will not be hampered by said denial. In fact, the
right to vote is a constitutionally-guaranteed right which cannot be limited.

As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang
Ladlad’s petition has the clear and immediate effect of limiting, if not outrightly nullifying the capacity of
its members to fully and equally participate in public life through engagement in the party list elections.

This argument is puerile. The holding of a public office is not a right but a privilege subject to limitations
imposed by law. x x x47

The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the party-
list system, and – as advanced by the OSG itself – the moral objection offered by the COMELEC was not a
limitation imposed by law. To the extent, therefore, that the petitioner has been precluded, because of
COMELEC’s action, from publicly expressing its views as a political party and participating on an equal
basis in the political process with other equally-qualified party-list candidates, we find that there has,
indeed, been a transgression of petitioner’s fundamental rights.

Non-Discrimination and International Law

In an age that has seen international law evolve geometrically in scope and promise, international
human rights law, in particular, has grown dynamically in its attempt to bring about a more just and
humane world order. For individuals and groups struggling with inadequate structural and governmental
support, international human rights norms are particularly significant, and should be effectively enforced
in domestic legal systems so that such norms may become actual, rather than ideal, standards of
conduct.

Our Decision today is fully in accord with our international obligations to protect and promote human
rights. In particular, we explicitly recognize the principle of non-discrimination as it relates to the right to
electoral participation, enunciated in the UDHR and the ICCPR.

The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:

Article 26
All persons are equal before the law and are entitled without any discrimination to the equal protection
of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal
and effective protection against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status.

In this context, the principle of non-discrimination requires that laws of general application relating to
elections be applied equally to all persons, regardless of sexual orientation. Although sexual orientation
is not specifically enumerated as a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR
Human Rights Committee has opined that the reference to "sex" in Article 26 should be construed to
include "sexual orientation."48 Additionally, a variety of United Nations bodies have declared
discrimination on the basis of sexual orientation to be prohibited under various international
agreements.49

The UDHR provides:

Article 21.

(1) Everyone has the right to take part in the government of his country, directly or through freely chosen
representatives.

Likewise, the ICCPR states:

Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in
article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage
and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.
As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is
elaborated by the Human Rights Committee in its General Comment No. 25 (Participation in Public
Affairs and the Right to Vote) as follows:

1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the conduct
of public affairs, the right to vote and to be elected and the right to have access to public service.
Whatever form of constitution or government is in force, the Covenant requires States to adopt such
legislative and other measures as may be necessary to ensure that citizens have an effective opportunity
to enjoy the rights it protects. Article 25 lies at the core of democratic government based on the consent
of the people and in conformity with the principles of the Covenant.

xxxx

15. The effective implementation of the right and the opportunity to stand for elective office ensures
that persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for
election, such as minimum age, must be justifiable on objective and reasonable criteria. Persons who are
otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory
requirements such as education, residence or descent, or by reason of political affiliation. No person
should suffer discrimination or disadvantage of any kind because of that person's candidacy. States
parties should indicate and explain the legislative provisions which exclude any group or category of
persons from elective office.50

We stress, however, that although this Court stands willing to assume the responsibility of giving effect
to the Philippines’ international law obligations, the blanket invocation of international law is not the
panacea for all social ills. We refer now to the petitioner’s invocation of the Yogyakarta Principles (the
Application of International Human Rights Law In Relation to Sexual Orientation and Gender Identity),51
which petitioner declares to reflect binding principles of international law.

At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are
obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are
not reflective of the current state of international law, and do not find basis in any of the sources of
international law enumerated under Article 38(1) of the Statute of the International Court of Justice.52
Petitioner has not undertaken any objective and rigorous analysis of these alleged principles of
international law to ascertain their true status.
We also hasten to add that not everything that society – or a certain segment of society – wants or
demands is automatically a human right. This is not an arbitrary human intervention that may be added
to or subtracted from at will. It is unfortunate that much of what passes for human rights today is a
much broader context of needs that identifies many social desires as rights in order to further claims
that international law obliges states to sanction these innovations. This has the effect of diluting real
human rights, and is a result of the notion that if "wants" are couched in "rights" language, then they are
no longer controversial.1avvphi1

Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated
by various international law professors, are – at best – de lege ferenda – and do not constitute binding
obligations on the Philippines. Indeed, so much of contemporary international law is characterized by
the "soft law" nomenclature, i.e., international law is full of principles that promote international
cooperation, harmony, and respect for human rights, most of which amount to no more than well-
meaning desires, without the support of either State practice or opinio juris.53

As a final note, we cannot help but observe that the social issues presented by this case are emotionally
charged, societal attitudes are in flux, even the psychiatric and religious communities are divided in
opinion. This Court’s role is not to impose its own view of acceptable behavior. Rather, it is to apply the
Constitution and laws as best as it can, uninfluenced by public opinion, and confident in the knowledge
that our democracy is resilient enough to withstand vigorous debate.

WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections dated
November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE. The
Commission on Elections is directed to GRANT petitioner’s application for party-list accreditation.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice
ANTONIO T. CARPIO

Associate Justice RENATO C. CORONA

Associate Justice

CONCHITA CARPIO MORALES

Associate Justice PRESBITERO J. VELASCO, JR.

Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

Associate Justice

ARTURO D. BRION

Associate Justice DIOSDADO M. PERALTA

Associate Justice

LUCAS P. BERSAMIN

Associate Justice ROBERTO A. ABAD

Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice JOSE P. PEREZ

Associate Justice

JOSE C. MENDOZA

Associate Justice

CERTIFICATION

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

REYNATO S. PUNO

Chief Justice
Footnotes

1 319 U.S. 624, 640-42 (1943).

2 Rollo, pp. 33-40.

3 Id. at 41-74.

4 An Act Providing For The Election Of Party-List Representatives Through The Party-List System, And
Appropriating Funds Therefor (1995).

5 Rollo, pp. 89-101.

6 412 Phil. 308 (2001).

7 Ang Ladlad outlined its platform, viz:

As a party-list organization, Ang Ladlad is willing to research, introduce, and work for the passage into
law of legislative measures under the following platform of government:

a) introduction and support for an anti-discrimination bill that will ensure equal rights for LGBTs in
employment and civil life;

b) support for LGBT-related and LGBT-friendly businesses that will contribute to the national economy;

c) setting up of micro-finance and livelihood projects for poor and physically challenged LGBT Filipinos;
d) setting up of care centers that will take care of the medical, legal, pension, and other needs of old and
abandoned LGBTs. These centers will be set up initially in the key cities of the country; and

e) introduction and support for bills seeking the repeal of laws used to harass and legitimize extortion
against the LGBT community. Rollo, p. 100.

8 Id. at 36-39. Citations omitted. Italics and underscoring in original text.

9 Id. at 77-88.

10 Id. at 50-54. Emphasis and underscoring supplied.

11 Id. at 121.

12 Id. at 129-132.

13 Id. at 151-283.

14 Id. at 284.

15 Id. at 301-596.

16 Id. at 126.

17 Id. at 133-160.

18 Id. at 288-291.

19 Id. at 296.
20 Supra note 6.

21 It appears that on September 4, 2009, the Second Division directed the various COMELEC Regional
Offices to verify the existence, status, and capacity of petitioner. In its Comment, respondent submitted
copies of various reports stating that ANG LADLAD LGBT or LADLAD LGBT did not exist in the following
areas: Batangas (October 6, 2009); Romblon (October 6, 2009); Palawan (October 16, 2009); Sorsogon
(September 29, 2009); Cavite, Marinduque, Rizal (October 12, 2009); Basilan, Maguindanao, Lanao del
Sur, Sulu, Tawi Tawi (October 19, 2009); Biliran, Leyte, Southern Leyte, Samar, Eastern Samar, Northern
Samar (October 19, 2009); Albay, Camarines Sur, Camarines Norte, Catanduanes, Masbate, Sorsogon
(October 25, 2009); Ilocos Sur, Ilocos Norte, La Union, Pangasinan (October 23, 2009); North Cotabato,
Sarangani, South Cotabato, Sultan Kudarat (October 23, 2009); Aklan, Antique, Iloilo and Negros
Occidental (October 25, 2009); Bohol, Cebu, Siquijor (October 24, 2009); Negros Oriental (October 26,
2009); Cordillera Administrative Region (October 30, 2009); Agusan del Norte, Agusan del Sur, Dinagat
Islands, Surigao del Norte, Surigao del Sur (October 26, 2009); Cagayan de Oro, Bukidnon, Camiguin,
MIsamis Oriental, Lanao del Norte (October 31, 2009); Laguna (November 2, 2009); Occidental Mindoro,
Oriental Mindoro (November 13, 2009); Quezon (November 24, 2009); Davao City, Davao del Sur, Davao
del Norte, Compostela Valley, Davao Oriental (November 19, 2009); Caloocan, Las Pinas, Makati,
Mandaluyong, Manila, Marikina, Muntinlupa, Navotas, Paranaque, Pasay, Pasig, Pateros, Quezon City,
San Juan, Taguig, Valenzuela (December 16, 2009). Rollo, pp.323-596.

22 Id. at 96.

23 Id. at 96-97.

24 Bernas, The 1987 Constitution of the Philippines: A Commentary 346 (2009).

25 Estrada v. Escritor, 455 Phil. 411 (2003), citing Smith, S., "The Rise and Fall of Religious Freedom in
Constitutional Discourse", 140 University of Pennsylvania Law Review, 149, 160 (1991).

26 455 Phil. 411 (2003).

27 Id. at 588-589.

28 Rollo, p. 315.
29 In Anonymous v. Radam, A.M. No. P-07-2333, December 19, 2007, 541 SCRA 12, citing Concerned
Employee v. Mayor, A.M. No. P-02-1564, 23 November 2004, 443 SCRA 448, we ruled that immorality
cannot be judged based on personal bias, specifically those colored by particular mores. Nor should it be
grounded on "cultural" values not convincingly demonstrated to have been recognized in the realm of
public policy expressed in the Constitution and the laws. At the same time, the constitutionally
guaranteed rights (such as the right to privacy) should be observed to the extent that they protect
behavior that may be frowned upon by the majority.

30 Rollo, pp. 178.

31 Id. at 179-180.

32 Civil Code of the Philippines, Art. 699.

33 Politics VII. 14.

34 Abakada Guro Party v. Executive Secretary, G.R. No. 168056, September 1, 2005, 2005, 469 SCRA 1,
139.

35 In Bernas, The 1987 Constitution of the Philippines: A Commentary 139-140 (2009), Fr. Joaquin
Bernas, S.J. writes:

For determining the reasonableness of classification, later jurisprudence has developed three kinds of
test[s] depending on the subject matter involved. The most demanding is the strict scrutiny test which
requires the government to show that the challenged classification serves a compelling state interest and
that the classification is necessary to serve that interest. This [case] is used in cases involving
classifications based on race, national origin, religion, alienage, denial of the right to vote, interstate
migration, access to courts, and other rights recognized as fundamental.

Next is the intermediate or middle-tier scrutiny test which requires government to show that the
challenged classification serves an important state interest and that the classification is at least
substantially related to serving that interest. This is applied to suspect classifications like gender or
illegitimacy.
The most liberal is the minimum or rational basis scrutiny according to which government need only
show that the challenged classification is rationally related to serving a legitimate state interest. This is
the traditional rationality test and it applies to all subjects other than those listed above.

36 487 Phil. 531, 583 (2004).

37 Id. at 584. See also Mid-States Freight Lines v. Bates, 111 N.Y.S. 2d 568.

38 The OSG argues that "[w]hile it is true that LGBTs are immutably males and females, and they are
protected by the same Bill of Rights that applies to all citizens alike, it cannot be denied that as a sector,
LGBTs have their own special interests and concerns." Rollo, p. 183.

39 Article III, Section 4 of the Constitution provides that "[n]o law shall be passed abridging the freedom
of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition
the government for redress of grievances."

40 Supra note 26.

41 In Bowers v. Hardwick, 478 U.S. 186 (1986), the US Supreme Court first upheld the constitutionality of
a Georgia sodomy law that criminalized oral and anal sex in private between consenting adults when
applied to homosexuals. Seventeen years later the Supreme Court directly overruled Bowers in Lawrence
v. Texas, 539 U.S. 558 (2003), holding that "Bowers was not correct when it was decided, and it is not
correct today."

In Lawrence, the US Supreme Court has held that the liberty protected by the Constitution allows
homosexual persons the right to choose to enter into intimate relationships, whether or not said
relationships were entitled to formal or legal recognition.

Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a
State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a
law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation
from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of
their physical relationship, even when not intended to produce offspring, are a form of "liberty"
protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends
to intimate choices by unmarried as well as married persons.

The present case does not involve minors. It does not involve persons who might be injured or coerced
or who are situated in relationships where consent might not easily be refused. It does not involve public
conduct or prostitution. It does not involve whether the government must give formal recognition to any
relationship that homosexual persons seek to enter. The case does involve two adults who, with full and
mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The
petitioners are entitled to respect for their private lives. The State cannot demean their existence or
control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due
Process Clause gives them the full right to engage in their conduct without intervention of the
government. "It is a promise of the Constitution that there is a realm of personal liberty which the
government may not enter." The Texas statute furthers no legitimate state interest which can justify its
intrusion into the personal and private life of the individual.

In similar fashion, the European Court of Human Rights has ruled that the avowed state interest in
protecting public morals did not justify interference into private acts between homosexuals. In Norris v.
Ireland, the European Court held that laws criminalizing same-sex sexual conduct violated the right to
privacy enshrined in the European Convention.

The Government are in effect saying that the Court is precluded from reviewing Ireland’s observance of
its obligation not to exceed what is necessary in a democratic society when the contested interference
with an Article 8 (Art. 8) right is in the interests of the "protection of morals". The Court cannot accept
such an interpretation. x x x.

x x x The present case concerns a most intimate aspect of private life. Accordingly, there must exist
particularly serious reasons before interferences on the part of public authorities can be legitimate x x x.

x x x Although members of the public who regard homosexuality as immoral may be shocked, offended
or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the
application of penal sanctions when it is consenting adults alone who are involved. (Norris v. Ireland
(judgment of October 26, 1988, Series A no. 142, pp. 20-21, § 46); Marangos v. Cyprus (application no.
31106/96, Commission's report of 3 December 1997, unpublished)).

The United Nations Human Rights Committee came to a similar conclusion in Toonen v. Australia (Comm.
No. 488/1992 U.N. GAOR Hum. Rts. Comm., 50th Sess., U.N. Doc. CCPR/c/50/D/488/1992 (1994)),
involving a complaint that Tasmanian laws criminalizing consensual sex between adult males violated the
right to privacy under Article 17 of the International Covenant on Civil and Political Rights. The
Committee held:

x x x it is undisputed that adult consensual sexual activity in private is covered by the concept of ‘privacy’
x x x any interference with privacy must be proportional to the end sought and be necessary in the
circumstances of any given case.

42 See Toonen v. Australia, (Comm. No. 488/1992 U.N. GAOR Hum. Rts. Comm., 50th Sess., U.N. Doc.
CCPR/c/50/D/488/1992 (1994)); Dudgeon v. United Kingdom, 45 Eur. H.R. Rep. 52 (1981) (decision by the
European Court of Human Rights, construing the European Convention on Human Rights and
Fundamental Freedoms); Norris v. Ireland, 13 Eur. Ct. H.R. 186 (1991); Modinos v. Cyprus, 16 Eur. H.R.
Rep. 485 (1993). See also, L. and V. v Austria (2003-I 29; (2003) 36 EHRR 55) and S.L. v Austria (2003-I 71;
(2003) 37 EHRR 39), where the European Court considered that Austria’s differing age of consent for
heterosexual and homosexual relations was discriminatory; it ‘embodied a predisposed bias on the part
of a heterosexual majority against a homosexual minority’, which could not ‘amount to sufficient
justification for the differential treatment any more than similar negative attitudes towards those of a
different race, origin or colour’.

43 See Fricke v. Lynch, 491 F. Supp. 381 (1980) and Gay Student Services v. Texas A&M University, 737 F.
2d 1317 (1984).

44 Case of the United Macedonian Organisation Ilinden and Others v. Bulgaria Application No. 5941/00;
Judgment of January 20, 2006. Note that in Baczkowski and Others v. Poland, Application No. 1543/06;
Judgment of May 3, 2007, the ECHR unanimously ruled that the banning of an LGBT gay parade in
Warsaw was a discriminatory violation of Article 14 of the ECHR, which provides:

The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property, birth or other status.

It also found that banning LGBT parades violated the group’s freedom of assembly and association.
Referring to the hallmarks of a "democratic society", the Court has attached particular importance to
pluralism, tolerance and broadmindedness. In that context, it has held that although individual interests
must on occasion be subordinated to those of a group, democracy does not simply mean that the views
of the majority must always prevail: a balance must be achieved which ensures the fair and proper
treatment of minorities and avoids any abuse of a dominant position.
45 Case of Freedom & Democracy Party (OZDEP) v. Turkey, Application No. 23885/94; Judgment of
December 8, 1999.

46 Article 11 of the European Convention for the Protection of Human Rights and Fundamental
Freedoms (European Convention) provides:

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law
and are necessary in a democratic society in the interests of national security or public safety, for the
prevention of disorder or crime, for the protection of health or morals or for the protection of the rights
and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise
of these rights by members of the armed forces, of the police or of the administration of the State.
Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, entered
into force September 3, 1953, as amended by Protocols Nos. 3, 5, 8, and 11 which entered into force on
September 21, 1970, December 20, 1971, January 1, 1990, and November 1, 1998, respectively.

* Note that while the state is not permitted to discriminate against homosexuals, private individuals
cannot be compelled to accept or condone homosexual conduct as a legitimate form of behavior. In
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (515 U.S. 557 (1995)), the US
Supreme Court discussed whether anti-discrimination legislation operated to require the organizers of a
private St. Patrick’s Day parade to include among the marchers an Irish-American gay, lesbian, and
bisexual group. The court held that private citizens organizing a public demonstration may not be
compelled by the state to include groups that impart a message the organizers do not want to be
included in their demonstration. The court observed:

"[A] contingent marching behind the organization’s banner would at least bear witness to the fact that
some Irish are gay, lesbian, or bisexual, and the presence of the organized marchers would suggest their
view that people of their sexual orientations have as much claim to unqualified social acceptance as
heterosexuals x x x. The parade’s organizers may not believe these facts about Irish sexuality to be so, or
they may object to unqualified social acceptance of gays and lesbians or have some other reason for
wishing to keep GLIB’s message out of the parade. But whatever the reason, it boils down to the choice
of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the
government’s power to control."

So, too, in Boy Scouts of America v. Dale (530 U.S. 640 [2000]), the US Supreme Court held that the Boy
Scouts of America could not be compelled to accept a homosexual as a scoutmaster, because "the Boy
Scouts believe that homosexual conduct is inconsistent with the values it seeks to instill in its youth
members; it will not "promote homosexual conduct as a legitimate form of behavior."

When an expressive organization is compelled to associate with a person whose views the group does
not accept, the organization’s message is undermined; the organization is understood to embrace, or at
the very least tolerate, the views of the persons linked with them. The scoutmaster’s presence "would,
at the very least, force the organization to send a message, both to the youth members and the world,
that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior."

47 Rollo, pp. 197-199.

48 In Toonen v. Australia, supra note 42, the Human Rights Committee noted that "in its view the
reference to ‘sex’ in Articles 2, paragraph 2, and 26 is to be taken as including sexual orientation."

49 The Committee on Economic, Social and Cultural Rights (CESCR) has dealt with the matter in its
General Comments, the interpretative texts it issues to explicate the full meaning of the provisions of the
Covenant on Economic, Social and Cultural Rights. In General Comments Nos. 18 of 2005 (on the right to
work) (Committee on Economic, Social and Cultural Rights, General Comment No. 18: The right to work,
E/C.12/GC/18, November 24, 2005), 15 of 2002 (on the right to water) (Committee on Economic, Social
and Cultural Rights, General Comment No. 15: The right to water, E/C.12/2002/11, November 26, 2002)
and 14 of 2000 (on the right to the highest attainable standard of health) (Committee on Economic,
Social and Cultural Rights, General Comment No. 14: The right to the highest attainable standard of
health, E/C.12/2000/4, August 14, 2000), it has indicated that the Covenant proscribes any
discrimination on the basis of, inter-alia, sex and sexual orientation.

The Committee on the Rights of the Child (CRC) has also dealt with the issue in a General Comment. In
its General Comment No. 4 of 2003, it stated that, "State parties have the obligation to ensure that all
human beings below 18 enjoy all the rights set forth in the Convention [on the Rights of the Child]
without discrimination (Article 2), including with regard to ‘‘race, colour, sex, language, religion, political
or other opinion, national, ethnic or social origin, property, disability, birth or other status’’. These
grounds also cover [inter alia] sexual orientation". (Committee on the Rights of the Child, General
Comment No. 4: Adolescent health and development in the context of the Convention on the Rights of
the Child, July 1, 2003, CRC/GC/2003/4).

The Committee on the Elimination of Discrimination Against Women (CEDAW), has, on a number of
occasions, criticized States for discrimination on the basis of sexual orientation. For example, it also
addressed the situation in Kyrgyzstan and recommended that, "lesbianism be reconceptualized as a
sexual orientation and that penalties for its practice be abolished" (Concluding Observations of the
Committee on the Elimination of Discrimination Against Women regarding Kyrgyzstan, February 5, 1999,
A/54/38 at par. 128).

50 General Comment No. 25: The right to participate in public affairs, voting rights and the right of equal
access to public service (Art. 25) December 16, 1996. CCPR/C/21/Rev.1/Add.7.

51 The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual
Orientation and Gender Identity is a set of international principles relating to sexual orientation and
gender identity, intended to address documented evidence of abuse of rights of lesbian, gay, bisexual,
and transgender (LGBT) individuals. It contains 29 Principles adopted by human rights practitioners and
experts, together with recommendations to governments, regional intergovernmental institutions, civil
society, and the United Nations.

52 One example is Principle 3 (The Right to Recognition Before the Law), which provides:

Everyone has the right to recognition everywhere as a person before the law. Persons of diverse sexual
orientations and gender identities shall enjoy legal capacity in all aspects of life. Each person’s self-
defined sexual orientation and gender identity is integral to their personality and is one of the most basic
aspects of self-determination, dignity and freedom. No one shall be forced to undergo medical
procedures, including sex reassignment surgery, sterilization or hormonal therapy, as a requirement for
legal recognition of their gender identity. No status, such as marriage or parenthood, may be invoked as
such to prevent the legal recognition of a person’s gender identity. No one shall be subjected to pressure
to conceal, suppress or deny their sexual orientation or gender identity.

States shall:

a) Ensure that all persons are accorded legal capacity in civil matters, without discrimination on the basis
of sexual orientation or gender identity, and the opportunity to exercise that capacity, including equal
rights to conclude contracts, and to administer, own, acquire (including through inheritance), manage,
enjoy and dispose of property;

b) Take all necessary legislative, administrative and other measures to fully respect and legally recognise
each person’s self-defined gender identity;
c) Take all necessary legislative, administrative and other measures to ensure that procedures exist
whereby all State-issued identity papers which indicate a person’s gender/sex — including birth
certificates, passports, electoral records and other documents — reflect the person’s profound self-
defined gender identity;

d) Ensure that such procedures are efficient, fair and non-discriminatory, and respect the dignity and
privacy of the person concerned;

e) Ensure that changes to identity documents will be recognized in all contexts where the identification
or disaggregation of persons by gender is required by law or policy;

f) Undertake targeted programmes to provide social support for all persons experiencing gender
transitioning or reassignment. (Emphasis ours)

53 See Pharmaceutical and Health Care Association of the Philippines v. Secretary of Health, G.R. No.
173034, October 9, 2007, 535 SCRA 265, where we explained that "soft law" does not fall into any of the
categories of international law set forth in Article 38, Chapter III of the 1946 Statute of the International
Court of Justice. It is, however, an expression of non-binding norms, principles, and practices that
influence state behavior. Certain declarations and resolutions of the UN General Assembly fall under this
category.

The Lawphil Project - Arellano Law Foundation

SEPARATE CONCURRING OPINION

PUNO, C.J.:

I concur with the groundbreaking ponencia of my esteemed colleague, Mr. Justice Mariano C. del
Castillo. Nonetheless, I respectfully submit this separate opinion to underscore some points that I deem
significant.

FIRST. The assailed Resolutions of the Commission on Elections (COMELEC) run afoul of the non-
establishment clause1 of the Constitution. There was cypher effort on the part of the COMELEC to couch
its reasoning in legal – much less constitutional – terms, as it denied Ang Ladlad’s petition for registration
as a sectoral party principally on the ground that it "tolerates immorality which offends religious (i.e.,
Christian2 and Muslim3) beliefs." To be sure, the COMELEC’s ruling is completely antithetical to the
fundamental rule that "[t]he public morality expressed in the law is necessarily secular[,] for in our
constitutional order, the religion clauses prohibit the state from establishing a religion, including the
morality it sanctions."4 As we explained in Estrada v. Escritor,5 the requirement of an articulable and
discernible secular purpose is meant to give flesh to the constitutional policy of full religious freedom for
all, viz.:

Religion also dictates "how we ought to live" for the nature of religion is not just to know, but often, to
act in accordance with man's "views of his relations to His Creator." But the Establishment Clause puts a
negative bar against establishment of this morality arising from one religion or the other, and implies the
affirmative "establishment" of a civil order for the resolution of public moral disputes. This agreement on
a secular mechanism is the price of ending the "war of all sects against all"; the establishment of a
secular public moral order is the social contract produced by religious truce.

Thus, when the law speaks of "immorality" in the Civil Service Law or "immoral" in the Code of
Professional Responsibility for lawyers, or "public morals" in the Revised Penal Code, or "morals" in the
New Civil Code, or "moral character" in the Constitution, the distinction between public and secular
morality on the one hand, and religious morality, on the other, should be kept in mind. The morality
referred to in the law is public and necessarily secular, not religious as the dissent of Mr. Justice Carpio
holds. "Religious teachings as expressed in public debate may influence the civil public order but public
moral disputes may be resolved only on grounds articulable in secular terms." Otherwise, if government
relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals
would require conformity to what some might regard as religious programs or agenda. The non-believers
would therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e.,
to a "compelled religion;" anathema to religious freedom. Likewise, if government based its actions upon
religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove
contrary religious or non-religious views that would not support the policy. As a result, government will
not provide full religious freedom for all its citizens, or even make it appear that those whose beliefs are
disapproved are second-class citizens. Expansive religious freedom therefore requires that government
be neutral in matters of religion; governmental reliance upon religious justification is inconsistent with
this policy of neutrality.6 (citations omitted and italics supplied)

Consequently, the assailed resolutions of the COMELEC are violative of the constitutional directive that
no religious test shall be required for the exercise of civil or political rights.7 Ang Ladlad’s right of political
participation was unduly infringed when the COMELEC, swayed by the private biases and personal
prejudices of its constituent members, arrogated unto itself the role of a religious court or worse, a
morality police.
The COMELEC attempts to disengage itself from this "excessive entanglement"8 with religion by arguing
that we "cannot ignore our strict religious upbringing, whether Christian or Muslim"9 since the "moral
precepts espoused by [these] religions have slipped into society and … are now publicly accepted moral
norms."10 However, as correctly observed by Mr. Justice del Castillo, the Philippines has not seen fit to
disparage homosexual conduct as to actually criminalize it. Indeed, even if the State has legislated to this
effect, the law is vulnerable to constitutional attack on privacy grounds.11 These alleged "generally
accepted public morals" have not, in reality, crossed over from the religious to the secular sphere.

Some people may find homosexuality and bisexuality deviant, odious, and offensive. Nevertheless,
private discrimination, however unfounded, cannot be attributed or ascribed to the State. Mr. Justice
Kennedy, speaking for the United States (U.S.) Supreme Court in the landmark case of Lawrence v.
Texas,12 opined:

It must be acknowledged, of course, that the Court in Bowers was making the broader point that for
centuries there have been powerful voices to condemn homosexual conduct as immoral. The
condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and
respect for the traditional family. For many persons these are not trivial concerns but profound and deep
convictions accepted as ethical and moral principles to which they aspire and which thus determine the
course of their lives. These considerations do not answer the question before us, however. The issue is
whether the majority may use the power of the State to enforce these views on the whole society
through operation of the … law. "Our obligation is to define the liberty of all, not to mandate our own
moral code."13

SECOND. The COMELEC capitalized on Ang Ladlad’s definition of the term "sexual orientation,"14 as well
as its citation of the number of Filipino men who have sex with men,15 as basis for the declaration that
the party espouses and advocates sexual immorality. This position, however, would deny homosexual
and bisexual individuals a fundamental element of personal identity and a legitimate exercise of personal
liberty. For, the "ability to [independently] define one’s identity that is central to any concept of liberty"
cannot truly be exercised in a vacuum; we all depend on the "emotional enrichment from close ties with
others."16 As Mr. Justice Blackmun so eloquently said in his stinging dissent in Bowers v. Hardwick17
(overturned by the United States Supreme Court seventeen years later in Lawrence v. Texas18):

Only the most willful blindness could obscure the fact that sexual intimacy is "a sensitive, key
relationship of human existence, central to family life, community welfare, and the development of
human personality[.]"19 The fact that individuals define themselves in a significant way through their
intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be
many "right" ways of conducting those relationships, and that much of the richness of a relationship will
come from the freedom an individual has to choose the form and nature of these intensely personal
bonds.20
In a variety of circumstances we have recognized that a necessary corollary of giving individuals freedom
to choose how to conduct their lives is acceptance of the fact that different individuals will make
different choices. For example, in holding that the clearly important state interest in public education
should give way to a competing claim by the Amish to the effect that extended formal schooling
threatened their way of life, the Court declared: "There can be no assumption that today's majority is
‘right’ and the Amish and others like them are ‘wrong.’ A way of life that is odd or even erratic but
interferes with no rights or interests of others is not to be condemned because it is different."21 The
Court claims that its decision today merely refuses to recognize a fundamental right to engage in
homosexual sodomy; what the Court really has refused to recognize is the fundamental interest all
individuals have in controlling the nature of their intimate associations with others. (italics supplied)

It has been said that freedom extends beyond spatial bounds.22 Liberty presumes an autonomy of self
that includes freedom of thought, belief, expression, and certain intimate conduct.23 These matters,
involving the most intimate and personal choices a person may make in a lifetime, choices central to
personal dignity and autonomy, are central to the liberty protected by the due process clause.24 At the
heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of
the mystery of human life.25 Beliefs about these matters could not define the attributes of personhood
were they formed under compulsion of the State.26 Lawrence v. Texas27 is again instructive:

To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the
claim the individual put forward, just as it would demean a married couple were it to be said marriage is
simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure,
statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes,
though, have more far-reaching consequences, touching upon the most private human conduct, sexual
behavior, and in the most private of places, the home. The statutes do seek to control a personal
relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons
to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of
the relationship or to set its boundaries absent injury to a person or abuse of an institution the law
protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the
confines of their homes and their own private lives and still retain their dignity as free persons. When
sexuality finds overt expression in intimate conduct with another person, the conduct can be but one
element in a personal bond that is more enduring. The liberty protected by the Constitution allows
homosexual persons the right to make this choice. (italics supplied)

THIRD. The ponencia of Mr. Justice del Castillo refused to characterize homosexuals and bisexuals as a
class in themselves for purposes of the equal protection clause. Accordingly, it struck down the assailed
Resolutions using the most liberal basis of judicial scrutiny, the rational basis test, according to which
government need only show that the challenged classification is rationally related to serving a legitimate
state interest.

I humbly submit, however, that a classification based on gender or sexual orientation is a quasi-suspect
classification, as to trigger a heightened level of review.

Preliminarily, in our jurisdiction, the standard and analysis of equal protection challenges in the main
have followed the rational basis test, coupled with a deferential attitude to legislative classifications and
a reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the
Constitution.28 However, Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas,29
carved out an exception to this general rule, such that prejudice to persons accorded special protection
by the Constitution requires stricter judicial scrutiny than mere rationality, viz.:

Congress retains its wide discretion in providing for a valid classification, and its policies should be
accorded recognition and respect by the courts of justice except when they run afoul of the Constitution.
The deference stops where the classification violates a fundamental right, or prejudices persons
accorded special protection by the Constitution. When these violations arise, this Court must discharge
its primary role as the vanguard of constitutional guaranties, and require a stricter and more exacting
adherence to constitutional limitations. Rational basis should not suffice. (citations omitted and italics
supplied)

Considering thus that labor enjoys such special and protected status under our fundamental law, the
Court ruled in favor of the Central Bank Employees Association, Inc. in this wise:

While R.A. No. 7653 started as a valid measure well within the legislature's power, we hold that the
enactment of subsequent laws exempting all rank-and-file employees of other GFIs leeched all validity
out of the challenged proviso.

xxxx

According to petitioner, the last proviso of Section 15(c), Article II of R.A. No. 7653 is also violative of the
equal protection clause because after it was enacted, the charters of the GSIS, LBP, DBP and SSS were
also amended, but the personnel of the latter GFIs were all exempted from the coverage of the SSL.
Thus, within the class of rank-and-file personnel of GFIs, the BSP rank-and-file are also discriminated
upon.
Indeed, we take judicial notice that after the new BSP charter was enacted in 1993, Congress also
undertook the amendment of the charters of the GSIS, LBP, DBP and SSS, and three other GFIs, from
1995 to 2004, viz.:

xxxx

It is noteworthy, as petitioner points out, that the subsequent charters of the seven other GFIs share this
common proviso: a blanket exemption of all their employees from the coverage of the SSL, expressly or
impliedly...

xxxx

The abovementioned subsequent enactments, however, constitute significant changes in circumstance

that considerably alter the reasonability of the continued operation of the last proviso of Section 15(c),
Article II of Republic Act No. 7653, thereby exposing the proviso to more serious scrutiny. This time, the
scrutiny relates to the constitutionality of the classification — albeit made indirectly as a consequence of
the passage of eight other laws — between the rank-and-file of the BSP and the seven other GFIs. The
classification must not only be reasonable, but must also apply equally to all members of the class. The
proviso may be fair on its face and impartial in appearance but it cannot be grossly discriminatory in its
operation, so as practically to make unjust distinctions between persons who are without differences.

Stated differently, the second level of inquiry deals with the following questions: Given that Congress
chose to exempt other GFIs (aside the BSP) from the coverage of the SSL, can the exclusion of the rank-
and-file employees of the BSP stand constitutional scrutiny in the light of the fact that Congress did not
exclude the rank-and-file employees of the other GFIs? Is Congress' power to classify so unbridled as to
sanction unequal and discriminatory treatment, simply because the inequity manifested itself, not
instantly through a single overt act, but gradually and progressively, through seven separate acts of
Congress? Is the right to equal protection of the law bounded in time and space that: (a) the right can
only be invoked against a classification made directly and deliberately, as opposed to a discrimination
that arises indirectly, or as a consequence of several other acts; and (b) is the legal analysis confined to
determining the validity within the parameters of the statute or ordinance (where the inclusion or
exclusion is articulated), thereby proscribing any evaluation vis-à-vis the grouping, or the lack thereof,
among several similar enactments made over a period of time?

In this second level of scrutiny, the inequality of treatment cannot be justified on the mere assertion that
each exemption (granted to the seven other GFIs) rests "on a policy determination by the legislature." All
legislative enactments necessarily rest on a policy determination — even those that have been declared
to contravene the Constitution. Verily, if this could serve as a magic wand to sustain the validity of a
statute, then no due process and equal protection challenges would ever prosper. There is nothing
inherently sacrosanct in a policy determination made by Congress or by the Executive; it cannot run riot
and overrun the ramparts of protection of the Constitution.

xxxx

In the case at bar, it is precisely the fact that as regards the exemption from the SSL, there are no
characteristics peculiar only to the seven GFIs or their rank-and-file so as to justify the exemption which
BSP rank-and-file employees were denied (not to mention the anomaly of the SEC getting one). The
distinction made by the law is not only superficial, but also arbitrary. It is not based on substantial
distinctions that make real differences between the BSP rank-and-file and the seven other GFIs.

xxxx

The disparity of treatment between BSP rank-and-file and the rank-and-file of the other seven GFIs
definitely bears the unmistakable badge of invidious discrimination — no one can, with candor and
fairness, deny the discriminatory character of the subsequent blanket and total exemption of the seven
other GFIs from the SSL when such was withheld from the BSP. Alikes are being treated as unalikes
without any rational basis.

xxxx

Thus, the two-tier analysis made in the case at bar of the challenged provision, and its conclusion of
unconstitutionality by subsequent operation, are in cadence and in consonance with the progressive
trend of other jurisdictions and in international law. There should be no hesitation in using the equal
protection clause as a major cutting edge to eliminate every conceivable irrational discrimination in our
society. Indeed, the social justice imperatives in the Constitution, coupled with the special status and
protection afforded to labor, compel this approach.

Apropos the special protection afforded to labor under our Constitution and international law, we held in
International School Alliance of Educators v. Quisumbing:
That public policy abhors inequality and discrimination is beyond contention. Our Constitution and laws
reflect the policy against these evils. The Constitution in the Article on Social Justice and Human Rights
exhorts Congress to "give highest priority to the enactment of measures that protect and enhance the
right of all people to human dignity, reduce social, economic, and political inequalities." The very broad
Article 19 of the Civil Code requires every person, "in the exercise of his rights and in the performance of
his duties, [to] act with justice, give everyone his due, and observe honesty and good faith."

International law, which springs from general principles of law, likewise proscribes discrimination.
General principles of law include principles of equity, i.e., the general principles of fairness and justice,
based on the test of what is reasonable. The Universal Declaration of Human Rights, the International
Covenant on Economic, Social, and Cultural Rights, the International Convention on the Elimination of All
Forms of Racial Discrimination, the Convention against Discrimination in Education, the Convention (No.
111) Concerning Discrimination in Respect of Employment and Occupation — all embody the general
principle against discrimination, the very antithesis of fairness and justice. The Philippines, through its
Constitution, has incorporated this principle as part of its national laws.

In the workplace, where the relations between capital and labor are often skewed in favor of capital,
inequality and discrimination by the employer are all the more reprehensible.

The Constitution specifically provides that labor is entitled to "humane conditions of work." These
conditions are not restricted to the physical workplace — the factory, the office or the field — but
include as well the manner by which employers treat their employees.

The Constitution also directs the State to promote "equality of employment opportunities for all."
Similarly, the Labor Code provides that the State shall "ensure equal work opportunities regardless of
sex, race or creed." It would be an affront to both the spirit and letter of these provisions if the State, in
spite of its primordial obligation to promote and ensure equal employment opportunities, closes its eyes
to unequal and discriminatory terms and conditions of employment.

xxx xxx xxx

Notably, the International Covenant on Economic, Social, and Cultural Rights, in Article 7 thereof,
provides:

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and
[favorable] conditions of work, which ensure, in particular:
a. Remuneration which provides all workers, as a minimum, with:

i. Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular
women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for
equal work;

xxx xxx xxx

The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal truism of
"equal pay for equal work." Persons who work with substantially equal qualifications, skill, effort and
responsibility, under similar conditions, should be paid similar salaries.

xxxx

Under most circumstances, the Court will exercise judicial restraint in deciding questions of
constitutionality, recognizing the broad discretion given to Congress in exercising its legislative power.
Judicial scrutiny would be based on the "rational basis" test, and the legislative discretion would be given
deferential treatment.

But if the challenge to the statute is premised on the denial of a fundamental right, or the perpetuation
of prejudice against persons favored by the Constitution with special protection, judicial scrutiny ought
to be more strict. A weak and watered down view would call for the abdication of this Court's solemn
duty to strike down any law repugnant to the Constitution and the rights it enshrines. This is true
whether the actor committing the unconstitutional act is a private person or the government itself or
one of its instrumentalities. Oppressive acts will be struck down regardless of the character or nature of
the actor.

In the case at bar, the challenged proviso operates on the basis of the salary grade or officer-employee
status. It is akin to a distinction based on economic class and status, with the higher grades as recipients
of a benefit specifically withheld from the lower grades. Officers of the BSP now receive higher
compensation packages that are competitive with the industry, while the poorer, low-salaried employees
are limited to the rates prescribed by the SSL. The implications are quite disturbing: BSP rank-and-file
employees are paid the strictly regimented rates of the SSL while employees higher in rank — possessing
higher and better education and opportunities for career advancement — are given higher
compensation packages to entice them to stay. Considering that majority, if not all, the rank-and-file
employees consist of people whose status and rank in life are less and limited, especially in terms of job
marketability, it is they — and not the officers — who have the real economic and financial need for the
adjustment. This is in accord with the policy of the Constitution "to free the people from poverty,
provide adequate social services, extend to them a decent standard of living, and improve the quality of
life for all." Any act of Congress that runs counter to this constitutional desideratum deserves strict
scrutiny by this Court before it can pass muster. (citations omitted and italics supplied)

Corollarily, American case law provides that a state action questioned on equal protection grounds is
subject to one of three levels of judicial scrutiny. The level of review, on a sliding scale basis, varies with
the type of classification utilized and the nature of the right affected.30

If a legislative classification disadvantages a "suspect class" or impinges upon the exercise of a

"fundamental right," then the courts will employ strict scrutiny and the statute must fall unless the
government can demonstrate that the classification has been precisely tailored to serve a compelling
governmental interest.31 Over the years, the United States Supreme Court has determined that suspect
classes for equal protection purposes include classifications based on race, religion, alienage, national
origin, and ancestry.32 The underlying rationale of this theory is that where legislation affects discrete
and insular minorities, the presumption of constitutionality fades because traditional political processes
may have broken down.33 In such a case, the State bears a heavy burden of justification, and the
government action will be closely scrutinized in light of its asserted purpose.34

On the other hand, if the classification, while not facially invidious, nonetheless gives rise to recurring
constitutional difficulties, or if a classification disadvantages a "quasi-suspect class," it will be treated
under intermediate or heightened review.35 To survive intermediate scrutiny, the law must not only
further an important governmental interest and be substantially related to that interest, but the
justification for the classification must be genuine and must not depend on broad generalizations.36
Noteworthy, and of special interest to us in this case, quasi-suspect classes include classifications based
on gender or illegitimacy.37

If neither strict nor intermediate scrutiny is appropriate, then the statute will be tested for mere
rationality.38 This is a relatively relaxed standard reflecting the Court’s awareness that the drawing of
lines which creates distinctions is peculiarly a legislative task and an unavoidable one.39 The
presumption is in favor of the classification, of the reasonableness and fairness of state action, and of
legitimate grounds of distinction, if any such grounds exist, on which the State acted.40

Instead of adopting a rigid formula to determine whether certain legislative classifications warrant more
demanding constitutional analysis, the United States Supreme Court has looked to four factors,41 thus:
(1) The history of invidious discrimination against the class burdened by the legislation;42

(2) Whether the characteristics that distinguish the class indicate a typical class member's ability to
contribute to society;43

(3) Whether the distinguishing characteristic is "immutable" or beyond the class members' control;44
and

(4) The political power of the subject class.45

These factors, it must be emphasized, are not constitutive essential elements of a suspect or quasi-
suspect class, as to individually demand a certain weight.46 The U.S. Supreme Court has applied the four
factors in a flexible manner; it has neither required, nor even discussed, every factor in every case.47
Indeed, no single talisman can define those groups likely to be the target of classifications offensive to
the equal protection clause and therefore warranting heightened or strict scrutiny; experience, not
abstract logic, must be the primary guide.48

In any event, the first two factors – history of intentional discrimination and relationship of classifying
characteristic to a person's ability to contribute – have always been present when heightened scrutiny
has been applied.49 They have been critical to the analysis and could be considered as prerequisites to
concluding a group is a suspect or quasi-suspect class.50 However, the last two factors – immutability of
the characteristic and political powerlessness of the group – are considered simply to supplement the
analysis as a means to discern whether a need for heightened scrutiny exists.51

Guided by this framework, and considering further that classifications based on sex or gender – albeit on
a male/female, man/woman basis – have been previously held to trigger heightened scrutiny, I
respectfully submit that classification on the basis of sexual orientation (i.e., homosexuality and/or
bisexuality) is a quasi-suspect classification that prompts intermediate review.

The first consideration is whether homosexuals have suffered a history of purposeful unequal treatment
because of their sexual orientation.52 One cannot, in good faith, dispute that gay and lesbian persons
historically have been, and continue to be, the target of purposeful and pernicious discrimination due
solely to their sexual orientation.53 Paragraphs 6 and 7 of Ang Ladlad’s Petition for Registration for party-
list accreditation in fact state:
6. There have been documented cases of discrimination and violence perpetuated against the LGBT
Community, among which are:

(a) Effeminate or gay youths being beaten up by their parents and/or guardians to make them conform
to standard gender norms of behavior;

(b) Fathers and/or guardians who allow their daughters who are butch lesbians to be raped[, so as] to
"cure" them into becoming straight women;

(c) Effeminate gays and butch lesbians are kicked out of school, NGOs, and choirs because of their
identity;

(d) Effeminate youths and masculine young women are refused admission from (sic) certain schools, are
suspended or are automatically put on probation;

(e) Denial of jobs, promotions, trainings and other work benefits once one’s sexual orientation and
gender identity is (sic) revealed;

(f) Consensual partnerships or relationships by gays and lesbians who are already of age, are broken up
by their parents or guardians using the [A]nti-kidnapping [L]aw;

(g) Pray-overs, exorcisms, and other religious cures are performed on gays and lesbians to "reform"
them;

(h) Young gays and lesbians are forcibly subjected to psychiatric counseling and therapy to cure them[,]
despite the de-listing (sic) of homosexuality and lesbianism as a mental disorder by the American
Psychiatric Association;

(i) Transgenders, or individuals who were born mail but who self-identity as women and dress as such,
are denied entry or services in certain restaurants and establishments; and

(j) Several murders from the years 2003-3006 were committed against gay men, but were not
acknowledged by police as hate crimes or violent acts of bigotry.
7. In the recent May 2009 US asylum case of Philip Belarmino, he testified that as a young gay person in
the Philippines, he was subjected to a variety of sexual abuse and violence, including repeated rapes[,]
which he could not report to [the] police [or speak of] to his own parents.

Accordingly, this history of discrimination suggests that any legislative burden placed on lesbian and gay
people as a class is "more likely than others to reflect deep-seated prejudice rather than legislative
rationality in pursuit of some legitimate objective."54

A second relevant consideration is whether the character-in-issue is related to the person’s ability to
contribute to society.55 Heightened scrutiny is applied when the classification bears no relationship to
this ability; the existence of this factor indicates the classification is likely based on irrelevant stereotypes
and prejudice.56 Insofar as sexual orientation is concerned, it is gainful to repair to Kerrigan v.
Commissioner of Public Health,57 viz.:

The defendants also concede that sexual orientation bears no relation to a person's ability to participate
in or contribute to society, a fact that many courts have acknowledged, as well. x x x If homosexuals were
afflicted with some sort of impediment to their ability to perform and to contribute to society, the entire
phenomenon of ‘staying in the [c]loset’ and of ‘coming out’ would not exist; their impediment would
betray their status. x x x In this critical respect, gay persons stand in stark contrast to other groups that
have been denied suspect or quasi-suspect class recognition, despite a history of discrimination, because
the distinguishing characteristics of those groups adversely affect their ability or capacity to perform
certain functions or to discharge certain responsibilities in society.58

Unlike the characteristics unique to those groups, however, "homosexuality bears no relation at all to
[an] individual's ability to contribute fully to society."59 Indeed, because an individual's homosexual
orientation "implies no impairment in judgment, stability, reliability or general social or vocational
capabilities";60 the observation of the United States Supreme Court that race, alienage and national
origin -all suspect classes entitled to the highest level of constitutional protection- "are so seldom
relevant to the achievement of any legitimate state interest that laws grounded in such considerations
are deemed to reflect prejudice and antipathy"61 is no less applicable to gay persons. (italics supplied)

Clearly, homosexual orientation is no more relevant to a person's ability to perform and contribute to
society than is heterosexual orientation.62

A third factor that courts have considered in determining whether the members of a class are entitled to
heightened protection for equal protection purposes is whether the attribute or characteristic that
distinguishes them is immutable or otherwise beyond their control.63 Of course, the characteristic that
distinguishes gay persons from others and qualifies them for recognition as a distinct and discrete group
is the characteristic that historically has resulted in their social and legal ostracism, namely, their
attraction to persons of the same sex.64

Immutability is a factor in determining the appropriate level of scrutiny because the inability of a person
to change a characteristic that is used to justify different treatment makes the discrimination violative of
the rather "‘basic concept of our system that legal burdens should bear some relationship to individual
responsibility.’"65 However, the constitutional relevance of the immutability factor is not reserved to
those instances in which the trait defining the burdened class is absolutely impossible to change.66 That
is, the immutability prong of the suspectness inquiry surely is satisfied when the identifying trait is "so
central to a person's identity that it would be abhorrent for government to penalize a person for refusing
to change [it]."67

Prescinding from these premises, it is not appropriate to require a person to repudiate or change his or
her sexual orientation in order to avoid discriminatory treatment, because a person's sexual orientation
is so integral an aspect of one's identity.68 Consequently, because sexual orientation "may be altered [if
at all] only at the expense of significant damage to the individual’s sense of self," classifications based
thereon "are no less entitled to consideration as a suspect or quasi-suspect class than any other group
that has been deemed to exhibit an immutable characteristic."69 Stated differently, sexual orientation is
not the type of human trait that allows courts to relax their standard of review because the barrier is
temporary or susceptible to self-help.70

The final factor that bears consideration is whether the group is "a minority or politically powerless."71
However, the political powerlessness factor of the level-of-scrutiny inquiry does not require a showing of
absolute political powerlessness.72 Rather, the touchstone of the analysis should be "whether the group
lacks sufficient political strength to bring a prompt end to the prejudice and discrimination through
traditional political means."73

Applying this standard, it would not be difficult to conclude that gay persons are entitled to heightened
constitutional protection despite some recent political progress.74 The discrimination that they have
suffered has been so pervasive and severe – even though their sexual orientation has no bearing at all on
their ability to contribute to or perform in society – that it is highly unlikely that legislative enactments
alone will suffice to eliminate that discrimination.75 Furthermore, insofar as the LGBT community plays a
role in the political process, it is apparent that their numbers reflect their status as a small and insular
minority.76
It is therefore respectfully submitted that any state action singling lesbians, gays, bisexuals and trans-
genders out for disparate treatment is subject to heightened judicial scrutiny to ensure that it is not the
product of historical prejudice and stereotyping.77

In this case, the assailed Resolutions of the COMELEC unmistakably fail the intermediate level of review.
Regrettably, they betray no more than bigotry and intolerance; they raise the inevitable inference that
the disadvantage imposed is born of animosity toward the class of persons affected78 (that is, lesbian,
gay, bisexual and trans-gendered individuals). In our constitutional system, status-based classification
undertaken for its own sake cannot survive.79

FOURTH. It has been suggested that the LGBT community cannot participate in the party-list system
because it is not a "marginalized and underrepresented sector" enumerated either in the Constitution80
or Republic Act No. (RA) 7941.81 However, this position is belied by our ruling in Ang Bagong Bayani-
OFW Labor Party v. COMELEC,82 where we clearly held that the enumeration of marginalized and
underrepresented sectors in RA 7941 is not exclusive.

I likewise see no logical or factual obstacle to classifying the members of the LGBT community as
marginalized and underrepresented, considering their long history (and indeed, ongoing narrative) of
persecution, discrimination, and pathos. In my humble view, marginalization for purposes of party-list
representation encompasses social marginalization as well. To hold otherwise is tantamount to
trivializing socially marginalized groups as "mere passive recipients of the State’s benevolence" and
denying them the right to "participate directly [in the mainstream of representative democracy] in the
enactment of laws designed to benefit them."83 The party-list system could not have been
conceptualized to perpetuate this injustice.

Accordingly, I vote to grant the petition.

REYNATO S. PUNO

Chief Justice

Footnotes

1 Section 5, Article III of the 1987 Constitution states: "No law shall be made respecting an establishment
of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall forever be allowed. No religious test
shall be required for the exercise of civil or political rights."

2 The November 11, 2009 Resolution of the COMELEC cited the following passage from the Bible to
support its holding: "For this cause God gave them up into vile affections: for even their women did
change the natural use into that which is against nature: And likewise also the men, leaving the natural
use of the woman, burned in their lust one toward another; men with men working that which is
unseemly, and receiving in themselves that recompense of their error which was meet." (Romans 1:26-
27)

3 The November 11, 2009 Resolution of the COMELEC cited the following passages from the Koran to
support its holding:

"For ye practice your lusts on men in preference to women: ye are indeed a people transgressing beyond
bounds." (7:81)

"And we rained down on them a shower (of brimstone): Then see what was the end of those who
indulged in sin and crime!" (7.84)

"He said: "O my Lord! Help Thou me against people who do mischief!" (29:30)

4 Estrada v. Escritor, 455 Phil. 411 (2003).

5 Id.

6 Id.

7 Section 5, Article III of the 1987 Constitution.

8 Lemon v. Kurtzman, 403 U.S. 602 (1971).

9 COMELEC’s Comment, p. 13.

10 Id.

11 See Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472.

12 Id.

13 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850, 112 S.Ct. 2791, 120 L.Ed.2d 674
(1992).

14 Ang Ladlad defined "sexual orientation" as a person’s capacity for profound emotional, affectional and
sexual attraction to, and intimate and sexual relations with, individuals of a different gender, of the same
gender, or more than one gender." (italics supplied)

15 Paragraph 24 of Ang Ladlad’s Petition for Registration stated, in relevant part: "In 2007, Men Having
Sex with Men or MSMs in the Philippines were estimated at 670,000."

16 Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, as cited in the Dissenting Opinion of
Mr. Justice Blackmun in Bowers v. Hardwick, infra.

17 478 U.S. 186, 106 S.Ct. 2841.

18 Supra note 11.

19 Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63, 93 S.Ct. 2628, 2638, 37 L.Ed.2d 446 (1973); See also
Carey v. Population Services International, 431 U.S. 678, 685, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977).

20 See Karst, The Freedom of Intimate Association, 89 Yale L.J. 624, 637 (1980); cf. Eisenstadt v. Baird,
405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972); Roe v. Wade, 410 U.S., at 153, 93 S.Ct., at
726.

21 Wisconsin v. Yoder, 406 U.S. 205, 223-224, 92 S.Ct. 1526, 1537, 32 L.Ed.2d 15 (1972).
22 Lawrence v. Texas, supra note 11.

23 Id.

24 Planned Parenthood of Southeastern Pa. v. Casey, supra note 13.

25 Id.

26 Id.

27 Supra note 11.

28 Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, 487 Phil. 531, 583 (2004).

29 Id.

30 Pace Membership Warehouse, Div. of K-Mart Corp. v. Axelson, 938 P.2d 504.

31 16B Am. Jur. 2d Constitutional Law § 857, citing Clark v. Jeter, 486 U.S. 456, 108 S. Ct. 1910, 100 L. Ed.
2d 465 (1988); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S. Ct. 948, 74 L. Ed. 2d
794, 9 Ed. Law Rep. 23 (1983); Christie v. Coors Transp. Co., 933 P.2d 1330 (Colo. 1997); Baker v. City of
Ottumwa, 560 N.W.2d 578 (Iowa 1997); Zempel v. Uninsured Employers' Fund, 282 Mont. 424, 938 P.2d
658 (1997); Hovland v. City of Grand Forks, 1997 ND 95, 563 N.W.2d 384 (N.D. 1997).

32 Murray v. State of Louisiana, 2010 WL 334537. See Burlington N. R.R. Co. v. Ford, 112 S.Ct. 2184, 2186
(1992) (holding classification based on religion is a suspect classification); Graham v. Richardson, 91 S.Ct.
1848, 1852 (1971) (holding classification based on alienage is a suspect classification); Loving v. Virginia,
87 S.Ct. 1817, 1823 (1967) (holding classification based on race is a suspect classification); Oyama v.
California, 68 S.Ct. 269, 274-74 (1948) (holding classification based on national origin is a suspect
classification); Hirabayashi v. U.S., 63 S.Ct. 1375 (1943) (holding classification based on ancestry is a
suspect classification).
33 Johnson v. Robison, 415 U.S. 361, 94 S. Ct. 1160, 39 L. Ed. 2d 389 (1974).

34 Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972); Hunter v. Erickson, 393 U.S.
385, 89 S. Ct. 557, 21 L. Ed. 2d 616 (1969); McLaughlin v. State of Fla., 379 U.S. 184, 85 S. Ct. 283, 13 L.
Ed. 2d 222 (1964).

35 Supra note 31.

36 United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 2275, 135 L.Ed.2d 735, 751 (1996).

37 Murray v. State of Louisiana, supra note 32. See Mississippi University for Women v. Hogan, 102 S.Ct.
3331, 3336 (1982) (holding classifications based on gender calls for heightened standard of review);
Trimble v. Gordon, 97 S.Ct. 1459, 1463 (1977) (holding illegitimacy is a quasi-suspect classification).

38 Supra note 31.

39 Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 97 S. Ct. 1898, 52 L. Ed. 2d 513 (1977);
Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976); Costner
v. U.S., 720 F.2d 539 (8th Cir. 1983).

40 Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996); Cornerstone Christian Schools v. University
Interscholastic League, 563 F.3d 127, 243 Ed. Law Rep. 609 (5th Cir. 2009); Independent Charities of
America, Inc. v. State of Minn., 82 F.3d 791 (8th Cir. 1996); Bah v. City of Atlanta, 103 F.3d 964 (11th Cir.
1997).

41 Varnum v. Brien, 763 N.W.2d 862 (2009) citing the following passage from Plyler v. Doe, 457 U.S. 202,
216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786, 799 (1982):

Several formulations might explain our treatment of certain classifications as "suspect." Some
classifications are more likely than others to reflect deep-seated prejudice rather than legislative
rationality in pursuit of some legitimate objective. Legislation predicated on such prejudice is easily
recognized as incompatible with the constitutional understanding that each person is to be judged
individually and is entitled to equal justice under the law. Classifications treated as suspect tend to be
irrelevant to any proper legislative goal. Finally, certain groups, indeed largely the same groups, have
historically been "relegated to such a position of political powerlessness as to command extraordinary
protection from the majoritarian political process." The experience of our Nation has shown that
prejudice may manifest itself in the treatment of some groups. Our response to that experience is
reflected in the Equal Protection Clause of the Fourteenth Amendment. Legislation imposing special
disabilities upon groups disfavored by virtue of circumstances beyond their control suggests the kind of
"class or caste" treatment that the Fourteenth Amendment was designed to abolish.

42 See United States v. Virginia, 518 U.S. at 531-32, 116 S.Ct. at 2274-75, 135 L.Ed.2d at 750 (observing
‘long and unfortunate history of sex discrimination" (quoting Frontiero v. Richardson, 411 U.S. 677, 684,
93 S.Ct. 1764, 1769, 36 L.Ed.2d 583, 590 (1973) (Brennan, J., plurality opinion))); Lyng v. Castillo, 477 U.S.
635, 638, 106 S.Ct. 2727, 2729, 91 L.Ed.2d 527, 533 (1986) (noting subject class had "not been subjected
to discrimination"); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 at 443, 105 S.Ct. at 3256, 87
L.Ed.2d at 332 (mentally retarded not victims of "continuing antipathy or prejudice"); Mass. Bd. of Ret. v.
Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520, 525 (1976) (considering "history of
purposeful unequal treatment" (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28, 93
S.Ct. 1278, 1294, 36 L.Ed.2d 16, 40 (1973))).

43 See Cleburne Living Ctr., 473 U.S. at 440, 105 S.Ct. at 3254, 87 L.Ed.2d at 320 (certain classifications
merely "reflect prejudice and antipathy"); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725, 102 S.Ct.
3331, 3336, 73 L.Ed.2d 1090, 1098 (1982) ("Care must be taken in ascertain-ing whether the statutory
objective itself reflects archaic and stereotypic notions."); Murgia, 427 U.S. at 313, 96 S.Ct. at 2566, 49
L.Ed.2d at 525 (considering whether aged have "been subjected to unique disabilities on the basis of
stereotyped characteristics not truly indicative of their abilities"); Frontiero, 411 U.S. at 686, 93 S.Ct. at
1770, 36 L.Ed.2d at 591 (Brennan, J., plurality opinion) ("[T]he sex characteristic frequently bears no
relation to ability to perform or contribute to society.").

44 Lyng, 477 U.S. at 638, 106 S.Ct. at 2729, 91 L.Ed.2d at 533 (close relatives "do not exhibit obvious,
immutable, or distinguishing characteristics that define them as a discrete group"); Cleburne Living Ctr.,
473 U.S. at 442, 105 S.Ct. at 3255-56, 87 L.Ed.2d at 322 (mentally retarded people are different from
other classes of people, "immutably so, in relevant respects"); Plyler, 457 U.S. at 220, 102 S.Ct. at 2396,
72 L.Ed.2d at 801 (children of illegal aliens, unlike their parents, have "legal characteristic[s] over which
children can have little control"); Mathews v. Lucas, 427 U.S. 495, 505, 96 S.Ct. 2755, 2762, 49 L.Ed.2d
651, 660 (1976) (status of illegitimacy "is, like race or national origin, a characteristic determined by
causes not within the control of the illegitimate individual"); Frontiero, 411 U.S. at 686, 93 S.Ct. at 1770,
36 L.Ed.2d at 591 (Brennan, J., plurality opinion) ("[S]ex, like race and national origin, is an immutable
characteristic determined solely by the accident of birth....").

45 Lyng, 477 U.S. at 638, 106 S.Ct. at 2729, 91 L.Ed.2d at 533 (close relatives of primary household are
"not a minority or politically powerless"); Cleburne Living Ctr., 473 U.S. at 445, 105 S.Ct. at 3257, 87
L.Ed.2d at 324 (refusing to find "that the mentally retarded are politically powerless"); San Antonio
Indep. Sch. Dist., 411 U.S. at 28, 93 S.Ct. at 1294, 36 L.Ed.2d at 40 (considering whether minority and
poor school children were "relegated to such a position of political powerlessness as to command
extraordinary protection from the majoritarian political process").

46 Varnum v. Brien, supra note 41; Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 957 A.2d
407 (2008).

47 Varnum v. Brien, id., citing, among others, Palmore v. Sidoti, 466 U.S. 429, 433-34, 104 S.Ct. 1879,
1882-83, 80 L.Ed.2d 421, 426 (1984) (foregoing analysis of political power); Nyquist v. Mauclet, 432 U.S.
1, 9 n. 11, 97 S.Ct. 2120, 2125 n. 11, 53 L.Ed.2d 63, 71 n. 11 (1977) (jettisoning immutability requirement
and scrutinizing classification of resident aliens closely despite aliens' voluntary status as residents);
Mathews, 427 U.S. at 505-06, 96 S.Ct. at 2762-63, 49 L.Ed.2d at 660-61 (according heightened scrutiny to
classifications based on illegitimacy despite mutability and political power of illegitimates); Murgia, 427
U.S. at 313-14, 96 S.Ct. at 2567, 49 L.Ed.2d at 525 (omitting any reference to immutability); San Antonio
Indep. Sch. Dist., 411 U.S. at 25, 93 S.Ct. at 1292, 36 L.Ed.2d at 38 (omitting any reference to
immutability); Frontiero, 411 U.S. at 685-88, 93 S.Ct. at 1770-71, 36 L.Ed.2d at 591-92 (Brennan, J.,
plurality opinion) (scrutinizing classification based on gender closely despite political power of women);
Graham v. Richardson, 403 U.S. 365, 371-72, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534, 541-42 (1971)
(foregoing analysis of immutability); see also Lyng, 477 U.S. at 638, 106 S.Ct. at 2729, 91 L.Ed.2d at 533
(referring to whether members of the class "exhibit obvious, immutable, or distinguishing characteristics
that define them as a discrete group").

48 Concurring and Dissenting Opinion of Mr. Justice Thurgood Marshall in Cleburne v. Cleburne Living
Center, Inc., infra.

49 Varnum v. Brien, supra note 41.

50 Id.

51 Id.

52 Id.; Kerrigan v. Commissioner of Public Health, supra note 46.

53 Kerrigan v. Commissioner of Public Health, id.

54 Varnum v. Brien, supra note 41.

55 Id.

56 Id.

57 Supra note 46.

58 See, e.g., Cleburne v. Cleburne Living Center, Inc., 473 U.S. at 442, 105 S.Ct. 3249 (for purposes of
federal constitution, mental retardation is not quasi-suspect classification because, inter alia, "it is
undeniable ... that those who are mentally retarded have a reduced ability to cope with and function in
the everyday world"); Massachusetts Board of Retirement v. Murgia, 427 U.S. at 315, 96 S.Ct. 2562 (age
is not suspect classification because, inter alia, "physical ability generally declines with age"); see also
Gregory v. Ashcroft, 501 U.S. 452, 472, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) ("[i]t is an unfortunate fact
of life that physical [capacity] and mental capacity sometimes diminish with age").

59 L. Tribe, American Constitutional Law (2d Ed. 1988) § 16-33, p. 1616.

60 Jantz v. Muci, 759 F.Supp. 1543, 1548 (D.Kan.1991) (quoting 1985 Resolution of the American
Psychological Association), 976 F.2d 623 (10th Cir.1992), cert. denied, 508 U.S. 952, 113 S.Ct. 2445, 124
L.Ed.2d 662 (1993).

61 Cleburne v. Cleburne Living Center, Inc., 473 U.S. at 440, 105 S.Ct. 3249.

62 Kerrigan v. Commissioner of Public Health, supra note 46.

63 Id.

64 Id.

65 Varnum v. Brien, supra note 41.

66 Id.

67 Id. citing Kerrigan v. Commissioner of Public Health, supra note 46.

68 Id. citing In re Marriage Cases, 183 P.3d at 442.

69 Id. citing Kerrigan v. Commissioner of Public Health, supra note 46.

70 Id.

71 Kerrigan v. Commissioner of Public Health, supra note 46.

72 Varnum v. Brien, supra note 41, citing Kerrigan v. Commissioner of Public Health, supra note 46.

73 Id.

74 Kerrigan v. Commissioner of Public Health, supra note 46.

75 Id.

76 Id.

77 Id.

78 Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620.

79 Id.
80 Section 5(2), Article VI of the 1987 Constitution states, in relevant part:

SECTION 5. x x x x

(2) The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party list. For three consecutive terms after the ratification of
this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided
by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities,
women, youth, and such other sectors as may be provided by law, except the religious sector. (italics
supplied)

81 On the other hand, Section 5 of RA 7941 provides:

SECTION 5. Registration. — Any organized group of persons may register as a party, organization or
coalition for purposes of the party-list system by filing with the COMELEC not later than ninety (90) days
before the election a petition verified by its president or secretary stating its desire to participate in the
party-list system as a national, regional or sectoral party or organization or a coalition of such parties or
organizations, attaching thereto its constitution, by-laws, platform or program of government, list of
officers, coalition agreement and other relevant information as the COMELEC may require: Provided,
That the sectors shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities,
elderly, handicapped, women, youth, veterans, overseas workers, and professionals. (italics supplied)

82 G.R. No. 147589, June 26, 2001, 359 SCRA 698.

83 Id.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

CORONA, J.:
Stripped of the complicated and contentious issues of morality and religion, I believe the basic issue here
is simple: does petitioner Ang Ladlad LGBT Party qualify, under the terms of the Constitution and RA
7941, as a marginalized and underrepresented sector in the party-list system?

The relevant facts are likewise relatively uncomplicated. Petitioner seeks accreditation by the respondent
Commission on Elections as a political organization of a marginalized and underrepresented sector under
the party-list system. Finding that petitioner is not a marginalized sector under RA 7941, the Commission
on Elections denied its petition.

A System For Marginalized

And Underrepresented Sectors

The party-list system is an innovation of the 1987 Constitution. It is essentially a tool for the
advancement of social justice with the fundamental purpose of affording opportunity to marginalized
and underrepresented sectors to participate in the shaping of public policy and the crafting of national
laws. It is premised on the proposition that the advancement of the interests of the marginalized sectors
contributes to the advancement of the common good and of our nation’s democratic ideals.

But who are the marginalized and underrepresented sectors for whom the party-list system was
designed?

The Texts of the Constitution

And of RA1 7941

The resolution of a constitutional issue primarily requires that the text of the fundamental law be
consulted. Section 5(2), Article VI of the Constitution directs the course of our present inquiry. It
provides:

SEC. 5. x x x
(2) The party-list representatives shall constitute twenty per centum of the total number of
Representatives including those under the party-list. For three consecutive terms after the ratification of
this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided
by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities,
women, youth, and such other sectors as may be provided by law, except the religious sector. (emphasis
supplied)

The Constitution left the matter of determining the groups or sectors that may qualify as "marginalized"
to the hands of Congress. Pursuant to this constitutional mandate, RA 7941 or the Party-List System Act
was enacted in 1995. The law provides:

Section 2. Declaration of policy. — The State shall promote proportional representation in the election of
representatives to the House of Representatives through a party-list system of registered national,
regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens
belonging to marginalized and under-represented sectors, organizations and parties, and who lack well-
defined political constituencies but who could contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a whole, to become members of the House of
Representatives. Towards this end, the State shall develop and guarantee a full, free and open party
system in order to attain the broadest possible representation of party, sectoral or group interests in the
House of Representatives by enhancing their chances to compete for and win seats in the legislature,
and shall provide the simplest scheme possible.

xxx xxx xxx

Section 5. Registration. — Any organized group of persons may register as a party, organization or
coalition for purposes of the party-list system by filing with the COMELEC not later than ninety (90) days
before the election a petition verified by its president or secretary stating its desire to participate in the
party-list system as a national, regional or sectoral party or organization or a coalition of such parties or
organizations, attaching thereto its constitution, by-laws, platform or program of government, list of
officers, coalition agreement and other relevant information as the COMELEC may require: Provided,
That the sectors shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities,
elderly, handicapped, women, youth, veterans, overseas workers, and professionals.

The COMELEC shall publish the petition in at least two (2) national newspapers of general circulation.

The COMELEC shall, after due notice and hearing, resolve the petition within fifteen (15) days from the
date it was submitted for decision but in no case not later than sixty (60) days before election.
Section 6. Refusal and/or Cancellation of Registration. — The COMELEC may, motu propio or upon
verified complaint of any interested party, refuse or cancel, after due notice and hearing, the registration
of any national, regional or sectoral party, organization or coalition on any of the following grounds:

(1) It is a religious sect or denomination, organization or association, organized for religious purposes;

(2) It advocates violence or unlawful means to seek its goal;

(3) It is a foreign party or organization;

(4) It is receiving support from any foreign government, foreign political party, foundation, organization,
whether directly or through any of its officers or members or indirectly through third parties for partisan
election purposes;

(5) It violates or fails to comply with laws, rules or regulations relating to elections;

(6) It declares untruthful statements in its petition;

(7) It has ceased to exist for at least one (1) year; or

(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum
(2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency
in which it has registered. (emphasis supplied)

The Court’s Previous Pronouncements

As the oracle of the Constitution, this Court divined the intent of the party-list system and defined its
meaning in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections:2

That political parties may participate in the party-list elections does not mean, however, that any political
party -- or any organization or group for that matter -- may do so. The requisite character of these parties
or organizations must be consistent with the purpose of the party-list system, as laid down in the
Constitution and RA 7941. x x x

The Marginalized and Underrepresented to Become Lawmakers Themselves

[Section 2 of RA 7941] mandates a state policy of promoting proportional representation by means of

the Filipino-style party-list system, which will "enable" the election to the House of Representatives of
Filipino citizens,

1. who belong to marginalized and underrepresented sectors, organizations and parties; and

2. who lack well-defined constituencies; but

3. who could contribute to the formulation and enactment of appropriate legislation that will benefit the
nation as a whole.

The key words in this policy are "proportional representation," "marginalized and underrepresented,"
and "lack [of] well-defined constituencies."

"Proportional representation" here does not refer to the number of people in a particular district,
because the party-list election is national in scope. Neither does it allude to numerical strength in a
distressed or oppressed group. Rather, it refers to the representation of the "marginalized and
underrepresented" as exemplified by the enumeration in Section 5 of the law; namely, "labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans,
overseas workers, and professionals."

However, it is not enough for the candidate to claim representation of the marginalized and
underrepresented, because representation is easy to claim and to feign. The party-list organization or
party must factually and truly represent the marginalized and underrepresented constituencies
mentioned in Section 5. Concurrently, the persons nominated by the party-list candidate-organization
must be "Filipino citizens belonging to marginalized and underrepresented sectors, organizations and
parties."
Finally, "lack of well-defined constituenc[y]" refers to the absence of a traditionally identifiable electoral
group, like voters of a congressional district or territorial unit of government. Rather, it points again to
those with disparate interests identified with the "marginalized or underrepresented."

In the end, the role of the Comelec is to see to it that only those Filipinos who are "marginalized and
underrepresented" become members of Congress under the party-list system, Filipino-style.

The intent of the Constitution is clear: to give genuine power to the people, not only by giving more law
to those who have less in life, but more so by enabling them to become veritable lawmakers themselves.
Consistent with this intent, the policy of the implementing law, we repeat, is likewise clear: "to enable
Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, x x x,
to become members of the House of Representatives." Where the language of the law is clear, it must be
applied according to its express terms.

The marginalized and underrepresented sectors to be represented under the party-list system are
enumerated in Section 5 of RA 7941, which states:

"SEC. 5. Registration. -- Any organized group of persons may register as a party, organization or coalition
for purposes of the party-list system by filing with the COMELEC not later than ninety (90) days before
the election a petition verified by its president or secretary stating its desire to participate in the party-
list system as a national, regional or sectoral party or organization or a coalition of such parties or
organizations, attaching thereto its constitution, by-laws, platform or program of government, list of
officers, coalition agreement and other relevant information as the COMELEC may require: Provided,
that the sector shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities,
elderly, handicapped, women, youth, veterans, overseas workers, and professionals."

While the enumeration of marginalized and underrepresented sectors is not exclusive, it demonstrates
the clear intent of the law that not all sectors can be represented under the party-list system. It is a
fundamental principle of statutory construction that words employed in a statute are interpreted in
connection with, and their meaning is ascertained by reference to, the words and the phrases with
which they are associated or related. Thus, the meaning of a term in a statute may be limited, qualified
or specialized by those in immediate association.

xxx xxx xxx

Indeed, the law crafted to address the peculiar disadvantages of Payatas hovel dwellers cannot be
appropriated by the mansion owners of Forbes Park. The interests of these two sectors are manifestly
disparate; hence, the OSG’s position to treat them similarly defies reason and common sense. In
contrast, and with admirable candor, Atty. Lorna Patajo-Kapunan admitted during the Oral Argument that
a group of bankers, industrialists and sugar planters could not join the party-list system as
representatives of their respective sectors.

While the business moguls and the mega-rich are, numerically speaking, a tiny minority, they are neither
marginalized nor underrepresented, for the stark reality is that their economic clout engenders political
power more awesome than their numerical limitation. Traditionally, political power does not necessarily
emanate from the size of one’s constituency; indeed, it is likely to arise more directly from the number
and amount of one’s bank accounts.

It is ironic, therefore, that the marginalized and underrepresented in our midst are the majority who
wallow in poverty, destitution and infirmity. It was for them that the party-list system was enacted -- to
give them not only genuine hope, but genuine power; to give them the opportunity to be elected and to
represent the specific concerns of their constituencies; and simply to give them a direct voice in
Congress and in the larger affairs of the State. In its noblest sense, the party-list system truly empowers
the masses and ushers a new hope for genuine change. Verily, it invites those marginalized and
underrepresented in the past – the farm hands, the fisher folk, the urban poor, even those in the
underground movement – to come out and participate, as indeed many of them came out and
participated during the last elections. The State cannot now disappoint and frustrate them by disabling
and desecrating this social justice vehicle.

xxx xxx xxx

Verily, allowing the non-marginalized and overrepresented to vie for the remaining seats under the
party-list system would not only dilute, but also prejudice the chance of the marginalized and
underrepresented, contrary to the intention of the law to enhance it. The party-list system is a tool for
the benefit of the underprivileged; the law could not have given the same tool to others, to the prejudice
of the intended beneficiaries.

This Court, therefore, cannot allow the party-list system to be sullied and prostituted by those who are
neither marginalized nor underrepresented. It cannot let that flicker of hope be snuffed out. The clear
state policy must permeate every discussion of the qualification of political parties and other
organizations under the party-list system. (emphasis and underscoring supplied)

Hence, in Ang Bagong Bayani-OFW Labor Party, the Court stressed that the party-list system is reserved
only for those sectors marginalized and underrepresented in the past (e.g., labor, peasant, fisherfolk,
urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas
workers, professionals and even those in the underground movement who wish to come out and
participate). They are those sectors traditionally and historically marginalized and deprived of an
opportunity to participate in the formulation of national policy although their sectoral interests are also
traditionally and historically regarded as vital to the national interest. That is why Section 2 of RA 7941
speaks of "marginalized and under-represented sectors, organizations and parties, and who lack well-
defined political constituencies but who could contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a whole."

How should the matter of whether a particular sectoral interest is vital to national interest (and
therefore beneficial to the nation as a whole) be determined? Chief Justice Reynato S. Puno’s opinion3 in
Barangay Association for National Advancement and Transparency (BANAT) v. Commission on Elections4
offers valuable insight:

… Similarly, limiting the party-list system to the marginalized and excluding the major political parties
from participating in the election of their representatives is aligned with the constitutional mandate to
"reduce social, economic, and political inequalities, and remove cultural inequalities by equitably
diffusing wealth and political power for the common good"; the right of the people and their
organizations to effective and reasonable participation at all levels of social, political, and economic
decision-making; the right of women to opportunities that will enhance their welfare and enable them
to realize their full potential in the service of the nation; the right of labor to participate in policy and
decision-making processes affecting their rights and benefits in keeping with its role as a primary social
economic force; the right of teachers to professional advancement; the rights of indigenous cultural
communities to the consideration of their cultures, traditions and institutions in the formulation of
national plans and policies, and the indispensable role of the private sector in the national economy.

As such, the interests of marginalized sectors are by tradition and history vital to national interest and
therefore beneficial to the nation as a whole because the Constitution declares a national policy
recognizing the role of these sectors in the nation’s life. In other words, the concept of marginalized and
underrepresented sectors under the party-list scheme has been carefully refined by concrete examples
involving sectors deemed to be significant in our legal tradition. They are essentially sectors with a
constitutional bond, that is, specific sectors subject of specific provisions in the Constitution, namely,
labor,5 peasant,6 urban poor,7 indigenous cultural communities,8 women,9 youth,10 veterans,11
fisherfolk,12 elderly,13 handicapped,14 overseas workers15 and professionals.16

The premise is that the advancement of the interests of these important yet traditionally and historically
marginalized sectors promotes the national interest. The Filipino people as a whole are benefited by the
empowerment of these sectors.
The long-muffled voices of marginalized sectors must be heard because their respective interests are
intimately and indispensably woven into the fabric of the national democratic agenda. The social,
economic and political aspects of discrimination and marginalization should not be divorced from the
role of a particular sector or group in the advancement of the collective goals of Philippine society as a
whole. In other words, marginalized sectors should be given a say in governance through the party-list
system, not simply because they desire to say something constructive but because they deserve to be
heard on account of their traditionally and historically decisive role in Philippine society.

A Unifying Thread

Fidelity to the Constitution requires commitment to its text. Thus, in the exercise of its function as official
interpreter of the Constitution, the Court should always bear in mind that judicial prudence means that
it is safer to construe the Constitution from what appears upon its face.17

With regard to the matter of what qualifies as marginalized and underrepresented sectors under the
party-list system, Section 5(2), Article VI of the Constitution mentions "the labor, peasant, urban poor,
indigenous cultural communities, women, youth, and such other sectors as may be provided by law,
except the religious sector." On the other hand, the law speaks of "labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and
professionals."18

Surely, the enumeration of sectors considered as marginalized and underrepresented in the fundamental
law and in the implementing law (RA 7941) cannot be without significance. To ignore them is to
disregard the texts of the Constitution and of RA 7941. For, indeed, the very first of Ang Bagong Bayani-
OFW Labor Party’s eight guidelines for screening party-list participants is this: the parties, sectors or
organizations "must represent the marginalized and underrepresented groups identified in Section 5 of
RA 7941."19

For this reason, I submit the majority’s decision is cryptic and wanting when it makes short shrift of the
issue of whether petitioner is a marginalized and underrepresented sector in the following manner:

The crucial element is not whether a sector is specifically enumerated, but whether a particular
organization complies with the requirements of the Constitution and RA 7941.

The resolution of petitions for accreditation in the party-list system on a case-to-case basis not tethered
to the enumeration of the Constitution and of RA 7941 invites the exercise of unbridled discretion.
Unless firmly anchored on the fundamental law and the implementing statute, the party-list system will
be a ship floating aimlessly in the ocean of uncertainty, easily tossed by sudden waves of flux and tipped
by shifting winds of change in societal attitudes towards certain groups. Surely, the Constitution and RA
7941 did not envision such kind of a system.

Indeed, the significance of the enumeration in Section 5(2), Article VI of the Constitution and Section 5 of
RA 7941 is clearly explained in Ang Bagong Bayani-OFW Labor Party:

"Proportional representation" here does not refer to the number of people in a particular district,
because the party-list election is national in scope. Neither does it allude to numerical strength in a
distressed or oppressed group. Rather, it refers to the representation of the "marginalized and
underrepresented" as exemplified by the enumeration in Section 5 of the law; namely, "labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans,
overseas workers, and professionals."

However, it is not enough for the candidate to claim representation of the marginalized and
underrepresented, because representation is easy to claim and to feign. The party-list organization or
party must factually and truly represent the marginalized and underrepresented constituencies
mentioned in Section 5. Concurrently, the persons nominated by the party-list candidate-organization
must be "Filipino citizens belonging to marginalized and underrepresented sectors, organizations and
parties."

xxx xxx xxx

The marginalized and underrepresented sectors to be represented under the party-list system are
enumerated in Section 5 of RA 7941, which states:

"SEC. 5. Registration. -- Any organized group of persons may register as a party, organization or coalition
for purposes of the party-list system by filing with the COMELEC not later than ninety (90) days before
the election a petition verified by its president or secretary stating its desire to participate in the party-
list system as a national, regional or sectoral party or organization or a coalition of such parties or
organizations, attaching thereto its constitution, by-laws, platform or program of government, list of
officers, coalition agreement and other relevant information as the COMELEC may require: Provided,
that the sector shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities,
elderly, handicapped, women, youth, veterans, overseas workers, and professionals."

While the enumeration of marginalized and underrepresented sectors is not exclusive, it demonstrates
the clear intent of the law that not all sectors can be represented under the party-list system. It is a
fundamental principle of statutory construction that words employed in a statute are interpreted in
connection with, and their meaning is ascertained by reference to, the words and the phrases with
which they are associated or related. Thus, the meaning of a term in a statute may be limited, qualified
or specialized by those in immediate association.20 (emphasis and underscoring supplied)

More importantly, in defining the concept of a "sectoral party," Section 3(d) of RA 7941 limits
"marginalized and underrepresented sectors" and expressly refers to the list in Section 5 thereof:

Section 3. Definition of Terms. — x x x

(d) A sectoral party refers to an organized group of citizens belonging to any of the sectors enumerated
in Section 5 hereof whose principal advocacy pertains to the special interest and concerns of their sector,
x x x. (emphasis supplied)

Petitioner does not question the constitutionality of Sections 2, 3(d) and 5 of RA 7941. (Its charges of
violation of non-establishment of religion, equal protection, free speech and free association are all
leveled at the assailed resolutions of the Commission on Elections.) Thus, petitioner admits and accepts
that its case must rise or fall based on the aforementioned provisions of RA 7941.

Following the texts of the Constitution and of RA 7941, and in accordance with established rules of
statutory construction and the Court’s pronouncement in Ang Bagong Bayani-OFW Labor Party, the
meaning of "marginalized sectors" under the party list system is limited and qualified. Hence, other
sectors that may qualify as marginalized and underrepresented should have a close connection to the
sectors mentioned in the Constitution and in the law. In other words, the marginalized and
underrepresented sectors qualified to participate in the party-list system refer only to the labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans,
overseas workers, professionals and other related or similar sectors.

This interpretation is faithful to and deeply rooted in the language of the fundamental law and of its
implementing statute. It is coherent with the mandate of the Constitution that marginalized sectors
qualified to participate in the party-list system but not mentioned in Section 5(2), Article VI are "such
other sectors as may be provided by law" duly enacted by Congress. It is also consistent with the basic
canon of statutory construction, ejusdem generis, which requires that a general word or phrase that
follows an enumeration of particular and specific words of the same class, the general word or phrase
should be construed to include, or to be restricted to persons, things or cases, akin to, resembling, or of
the same kind or class as those specifically mentioned.21 Moreover, it reins in the subjective elements of
passion and prejudice that accompany discussions of issues with moral or religious implications as it
avoids the need for complex balancing and undue policy-making.
What is the unifying thread that runs through the marginalized and underrepresented sectors under the
party-list system? What are the family resemblances that would characterize them?22

Based on the language of the Constitution and of RA 7941 and considering the pronouncements of this
Court in Ang Bagong Bayani-OFW Labor Party and BANAT, the following factors are significant:

(a) they must be among, or closely connected with or similar to, the sectors mentioned in Section 5 of
RA 7941;

(b) they must be sectors whose interests are traditionally and historically regarded as vital to the national
interest but they have long been relegated to the fringes of society and deprived of an opportunity to
participate in the formulation of national policy;

(c) the vinculum that will establish the close connection with or similarity of sectors to those expressly
mentioned in Section 5 of RA 7941 is a constitutional provision specifically recognizing the special
significance of the said sectors (other than people’s organizations, unless such people’s organizations
represent sectors mentioned in Section 5 of RA 7941)23 to the advancement of the national interest and

(d) while lacking in well-defined political constituencies, they must have regional or national presence to
ensure that their interests and agenda will be beneficial not only to their respective sectors but, more
importantly, to the nation as a whole.

For Purposes of the Party-List System,

Petitioner is Not a Marginalized Sector

In this case, petitioner asserts that it is entitled to accreditation as a marginalized and underrepresented
sector under the party-list system. However, the Commission on Elections disagrees.

The majority reverses the Commission on Elections. While it focuses on the contentious issues of
morality, religion, equal protection, and freedom of expression and association, by granting the petition,
the majority effectively rules that petitioner is a qualified marginalized and underrepresented sector,
thereby allowing its accreditation and participation in the party-list system.
I disagree.

Even assuming that petitioner was able to show that the community of lesbians, gays, bisexuals and
transsexuals (LGBT) is underrepresented, it cannot be properly considered as marginalized under the
party-list system. First, petitioner is not included in the sectors mentioned in Section 5(2), Article VI of
the Constitution and Section 5 of RA 7941. Unless an overly strained interpretation is resorted to, the
LGBT sector cannot establish a close connection to any of the said sectors. Indeed, petitioner does not
even try to show its link to any of the said sectors. Rather, it represents itself as an altogether distinct
sector with its own peculiar interests and agenda.

Second, petitioner’s interest as a sector, which is basically the legal recognition of its members’ sexual
orientation as a right, cannot be reasonably considered as an interest that is traditionally and historically
considered as vital to national interest. At best, petitioner may cite an emergent awareness of the
implications of sexual orientation on the national human rights agenda. However, an emergent
awareness is but a confirmation of lack of traditional and historical recognition.24 Moreover, even the
majority admits that there is no "clear cut consensus favorable to gay rights claims."25

Third, petitioner is cut off from the common constitutional thread that runs through the marginalized
and underrepresented sectors under the party-list system. It lacks the vinculum, a constitutional bond, a
provision in the fundamental law that specifically recognizes the LGBT sector as specially significant to
the national interest. This standard, implied in BANAT, is required to create the necessary link of a
particular sector to those sectors expressly mentioned in Section 5(2), Article VI of the Constitution and
Section 5 of RA 7941.

Finally, considering our history and tradition as a people, to consider the promotion of the LGBT agenda
and "gay rights" as a national policy as beneficial to the nation as a whole is debatable at best. Even the
majority (aside from extensively invoking foreign practice and international conventions rather than
Philippine laws) states:

We do not suggest that public opinion, even at its most liberal, reflect a clear cut strong consensus
favorable to gay rights claims….26

This is so unlike the significance of the interests of the sectors in Section 5 of RA 7941 which are, without
doubt, indisputable.

Regardless of the personal beliefs and biases of its individual members, this Court can only apply and
interpret the Constitution and the laws. Its power is not to create policy but to recognize, review or
reverse the policy crafted by the political departments if and when a proper case is brought before it.
Otherwise, it will tread on the dangerous grounds of judicial legislation.

In this instance, Congress, in the exercise of its authority under Section 5(2), Article VI of the
Constitution, enacted RA 7941. Sections 2, 3(d) and (5) of the said law instituted a policy when it
enumerated certain sectors as qualified marginalized and underrepresented sectors under the party-list
system. Respect for that policy and fidelity to the Court’s duty in our scheme of government require us
to declare that only sectors expressly mentioned or closely related to those sectors mentioned in Section
5 of RA 7941 are qualified to participate in the party-list system. That is the tenor of the Court’s rulings in
Ang Bagong Bayani-OFW Labor Party and BANAT. As there is no strong reason for the Court to rule
otherwise, stare decisis compels a similar conclusion in this case.

The Court is called upon to exercise judicial restraint in this case by strictly adhering to, rather than
expanding, legislative policy on the matter of marginalized sectors as expressed in the enumeration in
Section 5 of RA 7941. The Court has no power to amend and expand Sections 2, 3(d) and 5 of RA 7941 in
the guise of interpretation. The Constitution expressly and exclusively vests the authority to determine
"such other [marginalized] sectors" qualified to participate in the party-list system to Congress. Thus,
until and unless Congress amends the law to include the LGBT and other sectors in the party-list system,
deference to Congress’ determination on the matter is proper.

A Final Word

To be succinctly clear about it, I do not say that there is no truth to petitioner’s claim of discriminatory
and oppressive acts against its members. I am in no position to make that claim. Nor do I claim that
petitioner has no right to speak, to assemble or to access our political departments, particularly the
legislature, to promote the interests of its constituency. Social perceptions of sexual and other moral
issues may change over time, and every group has the right to persuade its fellow citizens that its view of
such matters is the best.27 But persuading one’s fellow citizens is one thing and insisting on a right to
participate in the party-list system is something else. Considering the facts, the law and jurisprudence,
petitioner cannot properly insist on its entitlement to use the party-list system as a vehicle for advancing
its social and political agenda.

While bigotry, social stereotyping and other forms of discrimination must be given no place in a truly
just, democratic and libertarian society, the party-list system has a well-defined purpose. The party-list
system was not designed as a tool to advocate tolerance and acceptance of any and all socially
misunderstood sectors. Rather, it is a platform for the realization of the aspirations of marginalized
sectors whose interests are, by nature and history, also the nation’s but which interests have not been
sufficiently brought to public attention because of these sectors’ underrepresentation.
Congress was given by the Constitution full discretion to determine what sectors may qualify as
marginalized and underrepresented. The Court’s task is to respect that legislative determination by
strictly adhering to it. If we effectively and unduly expand such congressional determination, we will be
dabbling in policy-making, an act of political will and not of judicial judgment.

Accordingly, I respectfully vote to dismiss the petition.

RENATO C. CORONA

Associate Justice

Footnotes

1 Republic Act.

2 412 Phil. 308 (2001).

3 The Chief Justice’s stance is the official stance of the Court on the matter because majority of the
members of the Court sided with him on the issue of disallowing major political parties from
participating in the party-list elections, directly or indirectly.

4 G.R. No. 179271, 21 April 2009, 586 SCRA 210, 258-259.

5 Section 18, Article II; Section 3, Article XIII.

6 Section 21, Article II; Section 4, Article XIII.

7 Section 9, Article II; Section 10, Article XIII.

8 Section 22, Article II; Section 5, Article XII.

9 Section 14, Article II; Section 14, Article XIII.

10 Section 13, Article II; Section 3(2), Article XV.

11 Section 7, Article XVI.

12 Paragraph three of Section 2, Article XII, Section 7, Article XIII.

13 Section 11, Article XIII.

14 Sections 11 and 13 XIII.

15 Section 18, Article II; Section 3, Article XIII.

16 Section 14, Article XII.

17 Civil Liberties Union v. Executive Secretary, G.R. No.83896, 22 February 1991, 194 SCRA 317, 337.

18 See proviso of the first paragraph of Section 5, RA 7941.

19 Supra note 2 at 342.

20 Supra note 2.

21 Miranda v. Abaya, 370 Phil. 642, 658 (1999).

22 The notion of family resemblances (familienähnlichkeit) was introduced by the leading analytic
philosopher, Ludwig Wittgenstein, in his book Philosophical Investigations. As used in this opinion,
however, family resemblances specifically refer to the DNA, the basic component unit, that identifies a
sector as a member of the family of marginalized and underrepresented sectors enumerated in Section
5(2), Article VI of the Constitution and Section 5 of RA 7941.

23 The reason behind this exception is obvious. If all people’s organizations are automatically considered
as marginalized and underrepresented, then no sector or organization may be disqualified on the
grounds of non-marginalization and lack of underrepresentation. The Court’s guidelines in Ang Bagong
Bayani-OFW Labor Party would have been unnecessary after all and, worse, the constitutional
requirement that the sectors qualified to participate in the party-list system be determined by law would
have been merely superfluous and pointless.

24 Lawrence v. Texas, 539 U.S. 558 (2003), (Scalia, J., dissenting).

25 Decision, p. 23.

26 Id.

27 Lawrence v. Texas, supra note 29 (J. Scalia, dissenting).

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION

ABAD, J.:

I have to concur only in the result set forth in the well-written ponencia of Justice Mariano C. Del Castillo
because I arrived at the same conclusion following a different path.
I also felt that the Court needs, in resolving the issues in this case, to say more about what the
Constitution and Republic Act (R.A.) 7941 intends in the case of the party-list system to abate the
aggravations and confusion caused by the alarming overnight proliferation of sectoral parties.

The underlying policy of R.A. 7941 or The Party-List System Act is to give the marginalized and
underrepresented sectors of society an opportunity to take a direct part in enacting the laws of the land.
In Ang Bagong Bayani-OFW Labor Party v. Commission on Elections (COMELEC),1 the Court laid down
guidelines for accreditation, but these seem to leave the COMELEC like everyone else even more
perplexed and dumbfounded about what organizations, clubs, or associations can pass for sectoral
parties with a right to claim a seat in the House of Representatives. The Court can, in adjudicating this
case, unravel some of the difficulties.

Here, I fully agree that the COMELEC erred when it denied Ang Ladlad’s petition for sectoral party
accreditation on religious and moral grounds. The COMELEC has never applied these tests on regular
candidates for Congress. There is no reason for it to apply them on Ang Ladlad. But the ponencia already
amply and lucidly discussed this point.

What I am more concerned about is COMELEC’s claim in its comment on the petition that the Ang Ladlad
sectoral party was not marginalized and underrepresented since it is not among, or even associated
with, the sectors specified in the Constitution and in R.A. 7941.2 Ang Ladlad, it claims, did not qualify as
a marginalized and underrepresented group of people like those representing labor, peasant, fisherfolk,
urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas
workers, and professionals. This is effectively the COMELEC’s frame of mind in adjudicating applications
for accreditation.

But, the COMELEC’s proposition imposes an unwarranted restriction which is inconsistent with the
purpose and spirit of the Constitution and the law. A reading of Ang Bagong Bayani will show that, based
on the Court’s reading, neither the Constitution nor R.A. 7941 intends the excessively limited coverage
that the COMELEC now suggests. In fact, the Court said in that case that the list in R.A. 7941 is not
exclusive. Thus, while the party-list system is not meant for all sectors of society, it was envisioned as a
social justice tool for the marginalized and underrepresented in general.

As it happened, the only clue that the Constitution provides respecting the identity of the sectors that
will make up the party-list system is found in the examples it gives, namely, the labor, the peasant, the
urban poor, the indigenous cultural minorities, the women, and the youth segments of society. Section
5(2), Article VI of the 1987 Constitution provides:
(2) The party-list representative shall constitute twenty per centum of the total number of
representatives including those under the party list. For three consecutive terms after the ratification of
this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided
by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities,
women, youth, and such other sectors as may be provided by law, except the religious sector."
(Underscoring supplied.)

Getting its bearing from the examples given above, the Congress provided in Section 2 of R.A. 7941 a
broad standard for screening and identifying those who may qualify for the party-list system. Thus:

Sec. 2. Declaration of policy. The State shall promote proportional representation in the election of
representatives to the House of Representatives through a party-list system of registered regional and
sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to
marginalized and underrepresented sectors, organizations and parties, and who lack well defined
political constituencies but who could contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole, to become members of the House of Representatives.
Towards this end, the State shall develop and guarantee a full, free and open party system or group
interests in the House of Representatives by enhancing their chances to compete for and win seats in the
legislature, and shall provide the simplest scheme possible. (Underscoring supplied.)

The above speaks of "marginalized and underrepresented sectoral parties or organizations x x x lack well
defined political constituencies x x x who could contribute to the formulation and enactment of
appropriate legislation." But, as the Court said in Ang Bagong Bayani, the whole thing boils down to
ascertaining whether the party seeking accreditation belongs to the "marginalized and
underrepresented."3

Unfortunately, Congress did not provide a definition of the term "marginalized and underrepresented."
Nor did the Court dare provide one in its decision in Ang Bagong Bayani. It is possible, however, to get a
sense of what Congress intended in adopting such term. No doubt, Congress crafted that term—
marginalized and underrepresented—from its reading of the concrete examples that the Constitution
itself gives of groupings that are entitled to accreditation. These examples are the labor, the peasant, the
urban poor, the indigenous cultural minorities, the women, and the youth sectors. Fortunately, quite
often ideas are best described by examples of what they are, which was what those who drafted the
1987 Constitution did, rather than by an abstract description of them.

For Congress it was much like looking at a gathering of "a dog, a cat, a horse, an elephant, and a tiger"
and concluding that it is a gathering of "animals." Here, it looked at the samples of qualified groups
(labor, peasant, urban poor, indigenous cultural minorities, women, and youth) and found a common
thread that passes through them all. Congress concluded that these groups belonged to the
"marginalized and underrepresented."

So what is the meaning of the term "marginalized and underrepresented?" The examples given (labor,
peasant, urban poor, indigenous cultural minorities, women, and youth) should be the starting point in
any search for definition. Congress has added six others to this list: the fisherfolk, the elderly, the
handicapped, the veterans, the overseas workers, and the professionals.4 Thus, the pertinent portion of
Section 5 of R.A. 7941 provides:

Sec. 5. Registration. – x x x Provided, that the sector shall include labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and
professionals.

If one were to analyze these Constitutional and statutory examples of qualified parties, it should be
evident that they represent the working class (labor, peasant, fisherfolk, overseas workers), the service
class (professionals), the economically deprived (urban poor), the social outcasts (indigenous cultural
minorities), the vulnerable (women, youth) and the work impaired (elderly, handicapped, veterans). This
analysis provides some understanding of who, in the eyes of Congress, are marginalized and
underrepresented.

The parties of the marginalized and underrepresented should be more than just lobby or interest groups.
They must have an authentic identity that goes beyond mere similarities in background or
circumstances. It is not enough that their members belong to the same industry, speak the same dialect,
have a common hobby or sport, or wish to promote public support for their mutual interests. The group
should be characterized by a shared advocacy for genuine issues affecting basic human rights as these
apply to their groups. This is in keeping with the statutory objective of sharing with them seats in the
House of Representatives so they can take part in enacting beneficial legislation.

It should be borne in mind, however, that both the Constitution and R.A. 7941 merely provide by
examples a sense of what the qualified organizations should look like. As the Court acknowledged in Ang
Bagong Bayani, these examples are not exclusive. For instance, there are groups which are pushed to the
margin because they advocate an extremist political ideology, such as the extreme right and the extreme
left of the political divide. They may be regarded, if the evidence warrants, as qualified sectors.

Further, to qualify, a party applying for accreditation must represent a narrow rather than a specific
definition of the class of people they seek to represent. For example, the Constitution uses the term
"labor," a narrower definition than the broad and more abstract term, "working class," without slipping
down to the more specific and concrete definition like "carpenters," "security guards," "microchips
factory workers," "barbers," "tricycle drivers," and similar sub-groupings in the "labor" group. See the
other illustrations below.

Broad

Definition *Narrow

Definition Specifically Defined Groups

Working Class Labor Carpenters, security guards, microchip

factory workers, barbers, tricycle drivers

Economically

Deprived Urban

Poor Informal settlers, the jobless, persons displaced by domestic wars

The Vulnerable WomenWorking women, battered women,

victims of slavery

Work Impaired Handi-

Capped Deaf and dumb, the blind, people on wheelchairs

*The definition that the Constitution and R.A. 7941 use by their examples.

Obviously, the level of representation desired by both the Constitution and R.A. 7941 for the party-list
system is the second, the narrow definition of the sector that the law regards as "marginalized and
underrepresented." The implication of this is that, if any of the sub-groupings (the carpenters, the
security guards, the microchips factory workers, the barbers, the tricycle drivers in the example) within
the sector desires to apply for accreditation as a party-list group, it must compete with other sub-groups
for the seat allotted to the "labor sector" in the House of Representatives. This is the apparent intent of
the Constitution and the law.

An interpretation that will allow concretely or specifically defined groups to seek election as a separate
party-list sector by itself will result in riot and redundancy in the mix of sectoral parties grabbing seats in
the House of Representatives. It will defeat altogether the objectives of the party-list system. If they can
muster enough votes, the country may have a party-list of pedicab drivers and another of tricycle drivers.
There will be an irrational apportionment of party-list seats in the legislature.

In addition, Section 5 of R.A. 7941 provides that parties interested in taking part in the party-list system
must state if they are to be considered as national, regional, or sectoral parties. Thus:
Sec. 5. Registration. – Any organized group of persons may register as a party, organization or coalition
for purposes of the party-list system by filing with the COMELEC not later than ninety (90) days before
the election a petition verified by its president or secretary stating its desire to participate in the party-
list system as a national, regional or sectoral party or organization or a coalition of such parties or
organizations, x x x.

This provision, taken alongside with the territorial character of the sample sectors provided by the
Constitution and R.A. 7941, indicates that every sectoral party-list applicant must have an inherently
regional presence (indigenous cultural minorities) or a national presence (all the rest).

The people they represent are not bound up by the territorial borders of provinces, cities, or
municipalities. A sectoral group representing the sugar plantation workers of Negros Occidental, for
example, will not qualify because it does not represent the inherently national character of the labor
sector.

Finally, as the Court held in Ang Bagong Bayani, it is not enough for a party to claim that it represents the
marginalized and underrepresented. That is easy to do. The party must factually and truly represent the
marginalized and underrepresented. It must present to the COMELEC clear and convincing evidence of
its history, authenticity, advocacy, and magnitude of presence. The COMELEC must reject those who put
up building props overnight as in the movies to create an illusion of sectoral presence so they can get
through the door of Congress without running for a seat in a regular legislative district.

In sum, to qualify for accreditation:

One, the applying party must show that it represents the "marginalized and underrepresented,"
exemplified by the working class, the service class, the economically deprived, the social outcasts, the
vulnerable, the work impaired, or some such similar class of persons.

Two, the applying party should be characterized by a shared advocacy for genuine issues affecting basic
human rights as these apply to the sector it represents.

Three, the applying party must share the cause of their sector, narrowly defined as shown above. If such
party is a sub-group within that sector, it must compete with other sub-groups for the seat allocated to
their sector.
Four, the members of the party seeking accreditation must have an inherent regional or national
presence.

And five, except for matters the COMELEC can take judicial notice of, the party applying for accreditation
must prove its claims by clear and convincing evidence.

In this case, Ang Ladlad represents men and women who identify themselves as lesbians, gays, bisexuals,
or trans-gendered persons (LGBTs). Applying the universally accepted estimate that one out of every 10
persons is an LGBT of a certain kind,5 the Filipino LGBTs should now stand at about 8.7 million. Despite
this, however, they are by and large, subtly if not brutally, excluded from the mainstream, discriminated
against, and persecuted. That the COMELEC denied Ang Ladlad’s petition on religious and moral grounds
is proof of this discrimination.

Ang Ladlad claims that many cases of intolerance and violence against LGBTs have been documented. At
home, effeminate or gay youths are subjected to physical abuse by parents or guardians to make them
conform to standard gender norms of behavior, while lesbian youths are raped to cure them of their
perceived affliction. LGBTs are refused admission from certain schools, or are suspended and put on
probation. Meanwhile, in the workplace, they are denied promotions or benefits which are otherwise
available to heterosexuals holding the same positions. There is bigotry for their group.

Ang Ladlad has amply proved that it meets the requirements for sectoral party accreditation. Their
members are in the vulnerable class like the women and the youth. Ang Ladlad represents a narrow
definition of its class (LGBTs) rather than a concrete and specific definition of a sub-group within the class
(group of gay beauticians, for example). The people that Ang Ladlad seeks to represent have a national
presence.

The lesbians, gays, bisexuals, and trans-gendered persons in our communities are our brothers, sisters,
friends, or colleagues who have suffered in silence all these years. True, the party-list system is not
necessarily a tool for advocating tolerance or acceptance of their practices or beliefs. But it does promise
them, as a marginalized and underrepresented group, the chance to have a direct involvement in crafting
legislations that impact on their lives and existence. It is an opportunity for true and effective
representation which is the very essence of our party-list system.

For the above reasons, I vote to GRANT the petition.

 G.R. No. 179271 April 21, 2009

BARANGAY ASSOCIATION FOR NATIONAL ADVANCEMENT AND TRANSPARENCY (BANAT), Petitioner,

vs.

COMMISSION ON ELECTIONS (sitting as the National Board of Canvassers), Respondent.

ARTS BUSINESS AND SCIENCE PROFESSIONALS, Intervenor.

AANGAT TAYO, Intervenor.

COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE PHILIPPINES, INC. (SENIOR CITIZENS),

Intervenor.

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

G.R. No. 179295 April 21, 2009

BAYAN MUNA, ADVOCACY FOR TEACHER EMPOWERMENT THROUGH ACTION, COOPERATION AND
HARMONY TOWARDS EDUCATIONAL REFORMS, INC., and ABONO, Petitioners,

vs.

COMMISSION ON ELECTIONS, Respondent.

DECISION

CARPIO, J.:

The Case

Petitioner in G.R. No. 179271 — Barangay Association for National Advancement and Transparency
(BANAT) — in a petition for certiorari and mandamus,1 assails the Resolution2 promulgated on 3 August
2007 by the Commission on Elections (COMELEC) in NBC No. 07-041 (PL). The COMELEC’s resolution in
NBC No. 07-041 (PL) approved the recommendation of Atty. Alioden D. Dalaig, Head of the National
Board of Canvassers (NBC) Legal Group, to deny the petition of BANAT for being moot. BANAT filed
before the COMELEC En Banc, acting as NBC, a Petition to Proclaim the Full Number of Party-List
Representatives Provided by the Constitution.
The following are intervenors in G.R. No. 179271: Arts Business and Science Professionals (ABS), Aangat
Tayo (AT), and Coalition of Associations of Senior Citizens in the Philippines, Inc. (Senior Citizens).

Petitioners in G.R. No. 179295 — Bayan Muna, Abono, and Advocacy for Teacher Empowerment Through
Action, Cooperation and Harmony Towards Educational Reforms (A Teacher) — in a petition for certiorari
with mandamus and prohibition,3 assails NBC Resolution No. 07-604 promulgated on 9 July 2007. NBC
No. 07-60 made a partial proclamation of parties, organizations and coalitions that obtained at least two
percent of the total votes cast under the Party-List System. The COMELEC announced that, upon
completion of the canvass of the party-list results, it would determine the total number of seats of each
winning party, organization, or coalition in accordance with Veterans Federation Party v. COMELEC5
(Veterans).

Estrella DL Santos, in her capacity as President and First Nominee of the Veterans Freedom Party, filed a
motion to intervene in both G.R. Nos. 179271 and 179295.

The Facts

The 14 May 2007 elections included the elections for the party-list representatives. The COMELEC
counted 15,950,900 votes cast for 93 parties under the Party-List System.6

On 27 June 2002, BANAT filed a Petition to Proclaim the Full Number of Party-List Representatives
Provided by the Constitution, docketed as NBC No. 07-041 (PL) before the NBC. BANAT filed its petition
because "[t]he Chairman and the Members of the [COMELEC] have recently been quoted in the national
papers that the [COMELEC] is duty bound to and shall implement the Veterans ruling, that is, would
apply the Panganiban formula in allocating party-list seats."7 There were no intervenors in BANAT’s
petition before the NBC. BANAT filed a memorandum on 19 July 2007.

On 9 July 2007, the COMELEC, sitting as the NBC, promulgated NBC Resolution No. 07-60. NBC
Resolution No. 07-60 proclaimed thirteen (13) parties as winners in the party-list elections, namely:
Buhay Hayaan Yumabong (BUHAY), Bayan Muna, Citizens’ Battle Against Corruption (CIBAC), Gabriela’s
Women Party (Gabriela), Association of Philippine Electric Cooperatives (APEC), A Teacher, Akbayan!
Citizen’s Action Party (AKBAYAN), Alagad, Luzon Farmers Party (BUTIL), Cooperative-Natco Network Party
(COOP-NATCCO), Anak Pawis, Alliance of Rural Concerns (ARC), and Abono. We quote NBC Resolution
No. 07-60 in its entirety below:
WHEREAS, the Commission on Elections sitting en banc as National Board of Canvassers, thru its Sub-
Committee for Party-List, as of 03 July 2007, had officially canvassed, in open and public proceedings, a
total of fifteen million two hundred eighty three thousand six hundred fifty-nine (15,283,659) votes
under the Party-List System of Representation, in connection with the National and Local Elections
conducted last 14 May 2007;

WHEREAS, the study conducted by the Legal and Tabulation Groups of the National Board of Canvassers
reveals that the projected/maximum total party-list votes cannot go any higher than sixteen million
seven hundred twenty three thousand one hundred twenty-one (16,723,121) votes given the following
statistical data:

Projected/Maximum Party-List Votes for May 2007 Elections

i. Total party-list votes already canvassed/tabulated 15,283,659

ii. Total party-list votes remaining uncanvassed/ untabulated (i.e. canvass deferred) 1,337,032

iii. Maximum party-list votes (based on 100% outcome) from areas not yet submitted for canvass
(Bogo, Cebu; Bais City; Pantar, Lanao del Norte; and Pagalungan, Maguindanao) 102,430

Maximum Total Party-List Votes 16,723,121

WHEREAS, Section 11 of Republic Act No. 7941 (Party-List System Act) provides in part:

The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for
the party-list system shall be entitled to one seat each: provided, that those garnering more than two
percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of
votes: provided, finally, that each party, organization, or coalition shall be entitled to not more than
three (3) seats.

WHEREAS, for the 2007 Elections, based on the above projected total of party-list votes, the presumptive
two percent (2%) threshold can be pegged at three hundred thirty four thousand four hundred sixty-two
(334,462) votes;

WHEREAS, the Supreme Court, in Citizen’s Battle Against Corruption (CIBAC) versus COMELEC, reiterated
its ruling in Veterans Federation Party versus COMELEC adopting a formula for the additional seats of
each party, organization or coalition receving more than the required two percent (2%) votes, stating
that the same shall be determined only after all party-list ballots have been completely canvassed;
WHEREAS, the parties, organizations, and coalitions that have thus far garnered at least three hundred
thirty four thousand four hundred sixty-two (334,462) votes are as follows:

RANK PARTY/ORGANIZATION/

COALITION VOTES

RECEIVED

1 BUHAY 1,163,218

2 BAYAN MUNA 972,730

3 CIBAC 760,260

4 GABRIELA 610,451

5 APEC 538,971

6 A TEACHER 476,036

7 AKBAYAN 470,872

8 ALAGAD 423,076

9 BUTIL 405,052

10 COOP-NATCO 390,029

11 BATAS 386,361

12 ANAK PAWIS 376,036

13 ARC 338,194

14 ABONO 337,046

WHEREAS, except for Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS), against
which an URGENT PETITION FOR CANCELLATION/REMOVAL OF REGISTRATION AND DISQUALIFICATION
OF PARTY-LIST NOMINEE (With Prayer for the Issuance of Restraining Order) has been filed before the
Commission, docketed as SPC No. 07-250, all the parties, organizations and coalitions included in the
aforementioned list are therefore entitled to at least one seat under the party-list system of
representation in the meantime.

NOW, THEREFORE, by virtue of the powers vested in it by the Constitution, the Omnibus Election Code,
Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941, and other election laws, the Commission
on Elections, sitting en banc as the National Board of Canvassers, hereby RESOLVES to PARTIALLY
PROCLAIM, subject to certain conditions set forth below, the following parties, organizations and
coalitions participating under the Party-List System:

1 Buhay Hayaan Yumabong BUHAY

2 Bayan Muna BAYAN MUNA

3 Citizens Battle Against Corruption CIBAC

4 Gabriela Women’s PartyGABRIELA

5 Association of Philippine Electric Cooperatives APEC

6 Advocacy for Teacher Empowerment Through Action, Cooperation and Harmony Towards
Educational Reforms, Inc. A TEACHER

7 Akbayan! Citizen’s Action Party AKBAYAN

8 Alagad ALAGAD

9 Luzon Farmers Party BUTIL

10 Cooperative-Natco Network Party COOP-NATCCO

11 Anak Pawis ANAKPAWIS

12 Alliance of Rural Concerns ARC

13 Abono ABONO

This is without prejudice to the proclamation of other parties, organizations, or coalitions which may
later on be established to have obtained at least two percent (2%) of the total actual votes cast under
the Party-List System.

The total number of seats of each winning party, organization or coalition shall be determined pursuant
to Veterans Federation Party versus COMELEC formula upon completion of the canvass of the party-list
results.

The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS) is hereby

deferred until final resolution of SPC No. 07-250, in order not to render the proceedings therein moot
and academic.

Finally, all proclamation of the nominees of concerned parties, organizations and coalitions with pending
disputes shall likewise be held in abeyance until final resolution of their respective cases.
Let the Clerk of the Commission implement this Resolution, furnishing a copy thereof to the Speaker of
the House of Representatives of the Philippines.

SO ORDERED.8 (Emphasis in the original)

Pursuant to NBC Resolution No. 07-60, the COMELEC, acting as NBC, promulgated NBC Resolution No.
07-72, which declared the additional seats allocated to the appropriate parties. We quote from the
COMELEC’s interpretation of the Veterans formula as found in NBC Resolution No. 07-72:

WHEREAS, on July 9, 2007, the Commission on Elections sitting en banc as the National Board of
Canvassers proclaimed thirteen (13) qualified parties, organization[s] and coalitions based on the
presumptive two percent (2%) threshold of 334,462 votes from the projected maximum total number of
party-list votes of 16,723,121, and were thus given one (1) guaranteed party-list seat each;

WHEREAS, per Report of the Tabulation Group and Supervisory Committee of the National Board of
Canvassers, the projected maximum total party-list votes, as of July 11, 2007, based on the votes actually
canvassed, votes canvassed but not included in Report No. 29, votes received but uncanvassed, and
maximum votes expected for Pantar, Lanao del Norte, is 16,261,369; and that the projected maximum
total votes for the thirteen (13) qualified parties, organizations and coalition[s] are as follows:

Party-List Projected total number of votes

1 BUHAY 1,178,747

2 BAYAN MUNA 977,476

3 CIBAC 755,964

4 GABRIELA 621,718

5 APEC 622,489

6 A TEACHER 492,369

7 AKBAYAN 462,674

8 ALAGAD 423,190

9 BUTIL 409,298

10 COOP-NATCO 412,920

11 ANAKPAWIS 370,165
12 ARC 375,846

13 ABONO 340,151

WHEREAS, based on the above Report, Buhay Hayaan Yumabong (Buhay) obtained the highest number
of votes among the thirteen (13) qualified parties, organizations and coalitions, making it the "first party"
in accordance with Veterans Federation Party versus COMELEC, reiterated in Citizen’s Battle Against
Corruption (CIBAC) versus COMELEC;

WHEREAS, qualified parties, organizations and coalitions participating under the party-list system of
representation that have obtained one guaranteed (1) seat may be entitled to an additional seat or seats
based on the formula prescribed by the Supreme Court in Veterans;

WHEREAS, in determining the additional seats for the "first party", the correct formula as expressed in
Veterans, is:

Number of votes of first party

Total votes for party-list system = Proportion of votes of first

party relative to total votes for

party-list system

wherein the proportion of votes received by the first party (without rounding off) shall entitle it to
additional seats:

Proportion of votes received

by the first party Additional seats

Equal to or at least 6% Two (2) additional seats

Equal to or greater than 4% but less than 6% One (1) additional seat

Less than 4% No additional seat

WHEREAS, applying the above formula, Buhay obtained the following percentage:

1,178,747

16,261,369 = 0.07248 or 7.2%

which entitles it to two (2) additional seats.

WHEREAS, in determining the additional seats for the other qualified parties, organizations and
coalitions, the correct formula as expressed in Veterans and reiterated in CIBAC is, as follows:

Additional seats for

a concerned party = No. of votes of

concerned party

No. of votes of

first party x No. of additional

seats allocated

to first party

WHEREAS, applying the above formula, the results are as follows:

Party List Percentage Additional Seat

BAYAN MUNA 1.65 1

CIBAC 1.28 1

GABRIELA 1.05 1

APEC 1.05 1

A TEACHER 0.83 0

AKBAYAN 0.78 0

ALAGAD 0.71 0

BUTIL 0.69 0

COOP-NATCO 0.69 0

ANAKPAWIS 0.62 0

ARC 0.63 0

ABONO 0.57 0

NOW THEREFORE, by virtue of the powers vested in it by the Constitution, Omnibus Election Code,
Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941 and other elections laws, the Commission
on Elections en banc sitting as the National Board of Canvassers, hereby RESOLVED, as it hereby
RESOLVES, to proclaim the following parties, organizations or coalitions as entitled to additional seats, to
wit:

Party List Additional Seats

BUHAY 2

BAYAN MUNA 1

CIBAC 1

GABRIELA 1

APEC 1

This is without prejudice to the proclamation of other parties, organizations or coalitions which may later
on be established to have obtained at least two per cent (2%) of the total votes cast under the party-list
system to entitle them to one (1) guaranteed seat, or to the appropriate percentage of votes to entitle
them to one (1) additional seat.

Finally, all proclamation of the nominees of concerned parties, organizations and coalitions with pending
disputes shall likewise be held in abeyance until final resolution of their respective cases.

Let the National Board of Canvassers Secretariat implement this Resolution, furnishing a copy hereof to
the Speaker of the House of Representatives of the Philippines.

SO ORDERED.9

Acting on BANAT’s petition, the NBC promulgated NBC Resolution No. 07-88 on 3 August 2007, which
reads as follows:

This pertains to the Petition to Proclaim the Full Number of Party-List Representatives Provided by the
Constitution filed by the Barangay Association for National Advancement and Transparency (BANAT).

Acting on the foregoing Petition of the Barangay Association for National Advancement and
Transparency (BANAT) party-list, Atty. Alioden D. Dalaig, Head, National Board of Canvassers Legal Group
submitted his comments/observations and recommendation thereon [NBC 07-041 (PL)], which reads:
COMMENTS / OBSERVATIONS:

Petitioner Barangay Association for National Advancement and Transparency (BANAT), in its Petition to
Proclaim the Full Number of Party-List Representatives Provided by the Constitution prayed for the
following reliefs, to wit:

1. That the full number -- twenty percent (20%) -- of Party-List representatives as mandated by Section 5,
Article VI of the Constitution shall be proclaimed.

2. Paragraph (b), Section 11 of RA 7941 which prescribes the 2% threshold votes, should be harmonized
with Section 5, Article VI of the Constitution and with Section 12 of the same RA 7941 in that it should be
applicable only to the first party-list representative seats to be allotted on the basis of their initial/first
ranking.

3. The 3-seat limit prescribed by RA 7941 shall be applied; and

4. Initially, all party-list groups shall be given the number of seats corresponding to every 2% of the votes
they received and the additional seats shall be allocated in accordance with Section 12 of RA 7941, that
is, in proportion to the percentage of votes obtained by each party-list group in relation to the total
nationwide votes cast in the party-list election, after deducting the corresponding votes of those which
were allotted seats under the 2% threshold rule. In fine, the formula/procedure prescribed in the
"ALLOCATION OF PARTY-LIST SEATS, ANNEX "A" of COMELEC RESOLUTION 2847 dated 25 June 1996, shall
be used for [the] purpose of determining how many seats shall be proclaimed, which party-list groups
are entitled to representative seats and how many of their nominees shall seat [sic].

5. In the alternative, to declare as unconstitutional Section 11 of Republic Act No. 7941 and that the
procedure in allocating seats for party-list representative prescribed by Section 12 of RA 7941 shall be
followed.

R E C O M M E N D A T I O N:

The petition of BANAT is now moot and academic.

The Commission En Banc in NBC Resolution No. 07-60 promulgated July 9, 2007 re "In the Matter of the
Canvass of Votes and Partial Proclamation of the Parties, Organizations and Coalitions Participating
Under the Party-List System During the May 14, 2007 National and Local Elections" resolved among
others that the total number of seats of each winning party, organization or coalition shall be
determined pursuant to the Veterans Federation Party versus COMELEC formula upon completion of the
canvass of the party-list results."1awphi1

WHEREFORE, premises considered, the National Board of Canvassers RESOLVED, as it hereby RESOLVES,
to approve and adopt the recommendation of Atty. Alioden D. Dalaig, Head, NBC Legal Group, to DENY
the herein petition of BANAT for being moot and academic.

Let the Supervisory Committee implement this resolution.

SO ORDERED.10

BANAT filed a petition for certiorari and mandamus assailing the ruling in NBC Resolution No. 07-88.
BANAT did not file a motion for reconsideration of NBC Resolution No. 07-88.

On 9 July 2007, Bayan Muna, Abono, and A Teacher asked the COMELEC, acting as NBC, to reconsider its
decision to use the Veterans formula as stated in its NBC Resolution No. 07-60 because the Veterans
formula is violative of the Constitution and of Republic Act No. 7941 (R.A. No. 7941). On the same day,
the COMELEC denied reconsideration during the proceedings of the NBC.11

Aside from the thirteen party-list organizations proclaimed on 9 July 2007, the COMELEC proclaimed
three other party-list organizations as qualified parties entitled to one guaranteed seat under the Party-
List System: Agricultural Sector Alliance of the Philippines, Inc. (AGAP),12 Anak Mindanao (AMIN),13 and
An Waray.14 Per the certification15 by COMELEC, the following party-list organizations have been
proclaimed as of 19 May 2008:

Party-List No. of Seat(s)

1.1 Buhay 3

1.2 Bayan Muna 2

1.3 CIBAC 2

1.4 Gabriela 2
1.5 APEC 2

1.6 A Teacher 1

1.7 Akbayan 1

1.8 Alagad 1

1.9 Butil 1

1.10 Coop-Natco [sic] 1

1.11 Anak Pawis 1

1.12 ARC 1

1.13 Abono 1

1.14 AGAP 1

1.15 AMIN 1

The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS), against

which an Urgent Petition for Cancellation/Removal of Registration and Disqualification of Party-list
Nominee (with Prayer for the Issuance of Restraining Order) has been filed before the COMELEC, was
deferred pending final resolution of SPC No. 07-250.

Issues

BANAT brought the following issues before this Court:

1. Is the twenty percent allocation for party-list representatives provided in Section 5(2), Article VI of the
Constitution mandatory or is it merely a ceiling?

2. Is the three-seat limit provided in Section 11(b) of RA 7941 constitutional?

3. Is the two percent threshold and "qualifier" votes prescribed by the same Section 11(b) of RA 7941
constitutional?

4. How shall the party-list representatives be allocated?16

Bayan Muna, A Teacher, and Abono, on the other hand, raised the following issues in their petition:

I. Respondent Commission on Elections, acting as National Board of Canvassers, committed grave abuse
of discretion amounting to lack or excess of jurisdiction when it promulgated NBC Resolution No. 07-60
to implement the First-Party Rule in the allocation of seats to qualified party-list organizations as said
rule:

A. Violates the constitutional principle of proportional representation.

B. Violates the provisions of RA 7941 particularly:

1. The 2-4-6 Formula used by the First Party Rule in allocating additional seats for the "First Party"
violates the principle of proportional representation under RA 7941.

2. The use of two formulas in the allocation of additional seats, one for the "First Party" and another for
the qualifying parties, violates Section 11(b) of RA 7941.

3. The proportional relationships under the First Party Rule are different from those required under RA
7941;

C. Violates the "Four Inviolable Parameters" of the Philippine party-list system as provided for under the
same case of Veterans Federation Party, et al. v. COMELEC.

II. Presuming that the Commission on Elections did not commit grave abuse of discretion amounting to
lack or excess of jurisdiction when it implemented the First-Party Rule in the allocation of seats to
qualified party-list organizations, the same being merely in consonance with the ruling in Veterans
Federations Party, et al. v. COMELEC, the instant Petition is a justiciable case as the issues involved herein
are constitutional in nature, involving the correct interpretation and implementation of RA 7941, and are
of transcendental importance to our nation.17

Considering the allegations in the petitions and the comments of the parties in these cases, we defined
the following issues in our advisory for the oral arguments set on 22 April 2008:
1. Is the twenty percent allocation for party-list representatives in Section 5(2), Article VI of the
Constitution mandatory or merely a ceiling?

2. Is the three-seat limit in Section 11(b) of RA 7941 constitutional?

3. Is the two percent threshold prescribed in Section 11(b) of RA 7941 to qualify for one seat
constitutional?

4. How shall the party-list representative seats be allocated?

5. Does the Constitution prohibit the major political parties from participating in the party-list elections?
If not, can the major political parties be barred from participating in the party-list elections?18

The Ruling of the Court

The petitions have partial merit. We maintain that a Philippine-style party-list election has at least four
inviolable parameters as clearly stated in Veterans. For easy reference, these are:

First, the twenty percent allocation — the combined number of all party-list congressmen shall not
exceed twenty percent of the total membership of the House of Representatives, including those elected
under the party list;

Second, the two percent threshold — only those parties garnering a minimum of two percent of the
total valid votes cast for the party-list system are "qualified" to have a seat in the House of
Representatives;

Third, the three-seat limit — each qualified party, regardless of the number of votes it actually obtained,
is entitled to a maximum of three seats; that is, one "qualifying" and two additional seats;

Fourth, proportional representation— the additional seats which a qualified party is entitled to shall be
computed "in proportion to their total number of votes."19
However, because the formula in Veterans has flaws in its mathematical interpretation of the term
"proportional representation," this Court is compelled to revisit the formula for the allocation of
additional seats to party-list organizations.

Number of Party-List Representatives:

The Formula Mandated by the Constitution

Section 5, Article VI of the Constitution provides:

Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty
members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their
respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided
by law, shall be elected through a party-list system of registered national, regional, and sectoral parties
or organizations.

(2) The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party-list. For three consecutive terms after the ratification of
this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided
by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities,
women, youth, and such other sectors as may be provided by law, except the religious sector.

The first paragraph of Section 11 of R.A. No. 7941 reads:

Section 11. Number of Party-List Representatives. — The party-list representatives shall constitute
twenty per centum (20%) of the total number of the members of the House of Representatives including
those under the party-list.

xxx

Section 5(1), Article VI of the Constitution states that the "House of Representatives shall be composed
of not more than two hundred and fifty members, unless otherwise fixed by law." The House of
Representatives shall be composed of district representatives and party-list representatives. The
Constitution allows the legislature to modify the number of the members of the House of
Representatives.1avvphi1.zw+
Section 5(2), Article VI of the Constitution, on the other hand, states the ratio of party-list
representatives to the total number of representatives. We compute the number of seats available to
party-list representatives from the number of legislative districts. On this point, we do not deviate from
the first formula in Veterans, thus:

Number of seats

available to legislative districts

.80

x .20 = Number of seats available to

party-list representatives

This formula allows for the corresponding increase in the number of seats available for party-list
representatives whenever a legislative district is created by law. Since the 14th Congress of the
Philippines has 220 district representatives, there are 55 seats available to party-list representatives.

220

.80 x .20 = 55

After prescribing the ratio of the number of party-list representatives to the total number of
representatives, the Constitution left the manner of allocating the seats available to party-list
representatives to the wisdom of the legislature.

Allocation of Seats for Party-List Representatives:

The Statutory Limits Presented by the Two Percent Threshold

and the Three-Seat Cap

All parties agree on the formula to determine the maximum number of seats reserved under the Party-
List System, as well as on the formula to determine the guaranteed seats to party-list candidates
garnering at least two-percent of the total party-list votes. However, there are numerous interpretations
of the provisions of R.A. No. 7941 on the allocation of "additional seats" under the Party-List System.
Veterans produced the First Party Rule,20 and Justice Vicente V. Mendoza’s dissent in Veterans presented
Germany’s Niemeyer formula21 as an alternative.
The Constitution left to Congress the determination of the manner of allocating the seats for party-list
representatives. Congress enacted R.A. No. 7941, paragraphs (a) and (b) of Section 11 and Section 12 of
which provide:

Section 11. Number of Party-List Representatives. — x x x

In determining the allocation of seats for the second vote,22 the following procedure shall be observed:

(a) The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the
number of votes they garnered during the elections.

(b) The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for
the party-list system shall be entitled to one seat each: Provided, That those garnering more than two
percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of
votes: Provided, finally, That each party, organization, or coalition shall be entitled to not more than
three (3) seats.

Section 12. Procedure in Allocating Seats for Party-List Representatives. — The COMELEC shall tally all
the votes for the parties, organizations, or coalitions on a nationwide basis, rank them according to the
number of votes received and allocate party-list representatives proportionately according to the
percentage of votes obtained by each party, organization, or coalition as against the total nationwide
votes cast for the party-list system. (Emphasis supplied)

In G.R. No. 179271, BANAT presents two interpretations through three formulas to allocate party-list
representative seats.

The first interpretation allegedly harmonizes the provisions of Section 11(b) on the 2% requirement with
Section 12 of R.A. No. 7941. BANAT described this procedure as follows:

(a) The party-list representatives shall constitute twenty percent (20%) of the total Members of the
House of Representatives including those from the party-list groups as prescribed by Section 5, Article VI
of the Constitution, Section 11 (1st par.) of RA 7941 and Comelec Resolution No. 2847 dated 25 June
1996. Since there are 220 District Representatives in the 14th Congress, there shall be 55 Party-List
Representatives. All seats shall have to be proclaimed.
(b) All party-list groups shall initially be allotted one (1) seat for every two per centum (2%) of the total
party-list votes they obtained; provided, that no party-list groups shall have more than three (3) seats
(Section 11, RA 7941).

(c) The remaining seats shall, after deducting the seats obtained by the party-list groups under the
immediately preceding paragraph and after deducting from their total the votes corresponding to those
seats, the remaining seats shall be allotted proportionately to all the party-list groups which have not
secured the maximum three (3) seats under the 2% threshold rule, in accordance with Section 12 of RA
7941.23

Forty-four (44) party-list seats will be awarded under BANAT’s first interpretation.

The second interpretation presented by BANAT assumes that the 2% vote requirement is declared
unconstitutional, and apportions the seats for party-list representatives by following Section 12 of R.A.
No. 7941. BANAT states that the COMELEC:

(a) shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis;

(b) rank them according to the number of votes received; and,

(c) allocate party-list representatives proportionately according to the percentage of votes obtained by
each party, organization or coalition as against the total nationwide votes cast for the party-list
system.24

BANAT used two formulas to obtain the same results: one is based on the proportional percentage of the
votes received by each party as against the total nationwide party-list votes, and the other is "by making
the votes of a party-list with a median percentage of votes as the divisor in computing the allocation of
seats."25 Thirty-four (34) party-list seats will be awarded under BANAT’s second interpretation.

In G.R. No. 179295, Bayan Muna, Abono, and A Teacher criticize both the COMELEC’s original 2-4-6
formula and the Veterans formula for systematically preventing all the party-list seats from being filled
up. They claim that both formulas do not factor in the total number of seats alloted for the entire Party-
List System. Bayan Muna, Abono, and A Teacher reject the three-seat cap, but accept the 2% threshold.
After determining the qualified parties, a second percentage is generated by dividing the votes of a
qualified party by the total votes of all qualified parties only. The number of seats allocated to a qualified
party is computed by multiplying the total party-list seats available with the second percentage. There
will be a first round of seat allocation, limited to using the whole integers as the equivalent of the
number of seats allocated to the concerned party-list. After all the qualified parties are given their seats,
a second round of seat allocation is conducted. The fractions, or remainders, from the whole integers are
ranked from highest to lowest and the remaining seats on the basis of this ranking are allocated until all
the seats are filled up.26

We examine what R.A. No. 7941 prescribes to allocate seats for party-list representatives.

Section 11(a) of R.A. No. 7941 prescribes the ranking of the participating parties from the highest to the
lowest based on the number of votes they garnered during the elections.

Table 1. Ranking of the participating parties from the highest to the lowest based on the number of votes
garnered during the elections.27

Rank Party Votes Garnered Rank Party Votes Garnered

1 BUHAY 1,169,234 48 KALAHI 88,868

2 BAYAN MUNA 979,039 49 APOI 79,386

3 CIBAC 755,686 50 BP 78,541

4 GABRIELA 621,171 51 AHONBAYAN 78,424

5 APEC 619,657 52 BIGKIS 77,327

6 A TEACHER 490,379 53 PMAP 75,200

7 AKBAYAN 466,112 54 AKAPIN 74,686

8 ALAGAD 423,149 55 PBA 71,544

9 COOP-NATCCO 409,883 56 GRECON 62,220

10 BUTIL 409,160 57 BTM 60,993

11 BATAS 385,810 58 A SMILE 58,717

12 ARC 374,288 59 NELFFI 57,872

13 ANAKPAWIS 370,261 60 AKSA 57,012

14 ABONO 339,990 61 BAGO 55,846

15 AMIN 338,185 62 BANDILA 54,751

16 AGAP 328,724 63 AHON 54,522

17 AN WARAY 321,503 64 ASAHAN MO 51,722

18 YACAP 310,889 65 AGBIAG! 50,837

19 FPJPM 300,923 66 SPI 50,478

20 UNI-MAD 245,382 67 BAHANDI 46,612

21 ABS 235,086 68 ADD 45,624

22 KAKUSA 228,999 69 AMANG 43,062

23 KABATAAN 228,637 70 ABAY PARAK 42,282

24 ABA-AKO 218,818 71 BABAE KA 36,512

25 ALIF 217,822 72 SB 34,835

26 SENIOR CITIZENS 213,058 73 ASAP 34,098

27 AT 197,872 74 PEP 33,938

28 VFP 196,266 75 ABA ILONGGO 33,903

29 ANAD 188,521 76 VENDORS 33,691

30 BANAT 177,028 77 ADD-TRIBAL 32,896

31 ANG KASANGGA 170,531 78 ALMANA 32,255

32 BANTAY 169,801 79 AANGAT KA PILIPINO 29,130

33 ABAKADA 166,747 80 AAPS 26,271

34 1-UTAK 164,980 81 HAPI 25,781

35 TUCP 162,647 82 AAWAS 22,946

36 COCOFED 155,920 83 SM 20,744

37 AGHAM146,032 84 AG 16,916

38 ANAK 141,817 85 AGING PINOY 16,729

39 ABANSE! PINAY 130,356 86 APO 16,421

40 PM 119,054 87 BIYAYANG BUKID 16,241

41 AVE 110,769 88 ATS 14,161

42 SUARA 110,732 89 UMDJ 9,445

43 ASSALAM 110,440 90 BUKLOD FILIPINA 8,915

44 DIWA 107,021 91 LYPAD 8,471

45 ANC 99,636 92 AA-KASOSYO 8,406

46 SANLAKAS 97,375 93 KASAPI 6,221

47 ABC 90,058

TOTAL 15,950,900

The first clause of Section 11(b) of R.A. No. 7941 states that "parties, organizations, and coalitions
receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one
seat each." This clause guarantees a seat to the two-percenters. In Table 2 below, we use the first 20
party-list candidates for illustration purposes. The percentage of votes garnered by each party is arrived
at by dividing the number of votes garnered by each party by 15,950,900, the total number of votes cast
for all party-list candidates.

Table 2. The first 20 party-list candidates and their respective percentage of votes garnered over the total
votes for the party-list.28

Rank Party Votes Garnered Votes Garnered over Total Votes for Party-List, in % Guaranteed
Seat

1 BUHAY 1,169,234 7.33% 1

2 BAYAN MUNA 979,039 6.14% 1

3 CIBAC 755,686 4.74% 1

4 GABRIELA 621,171 3.89% 1

5 APEC 619,657 3.88% 1

6 A TEACHER 490,379 3.07% 1

7 AKBAYAN 466,112 2.92% 1

8 ALAGAD 423,149 2.65% 1

9 COOP-NATCCO 409,883 2.57% 1

10 BUTIL 409,160 2.57% 1

11 BATAS29 385,810 2.42% 1

12 ARC 374,288 2.35% 1

13 ANAKPAWIS 370,261 2.32% 1

14 ABONO 339,990 2.13% 1

15 AMIN 338,185 2.12% 1

16 AGAP 328,724 2.06% 1

17 AN WARAY 321,503 2.02% 1

Total 17

18 YACAP 310,889 1.95% 0

19 FPJPM 300,923 1.89% 0

20 UNI-MAD 245,382 1.54% 0

From Table 2 above, we see that only 17 party-list candidates received at least 2% from the total number
of votes cast for party-list candidates. The 17 qualified party-list candidates, or the two-percenters, are
the party-list candidates that are "entitled to one seat each," or the guaranteed seat. In this first round of
seat allocation, we distributed 17 guaranteed seats.

The second clause of Section 11(b) of R.A. No. 7941 provides that "those garnering more than two
percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of
votes." This is where petitioners’ and intervenors’ problem with the formula in Veterans lies. Veterans
interprets the clause "in proportion to their total number of votes" to be in proportion to the votes of
the first party. This interpretation is contrary to the express language of R.A. No. 7941.

We rule that, in computing the allocation of additional seats, the continued operation of the two percent
threshold for the distribution of the additional seats as found in the second clause of Section 11(b) of
R.A. No. 7941 is unconstitutional. This Court finds that the two percent threshold makes it
mathematically impossible to achieve the maximum number of available party list seats when the
number of available party list seats exceeds 50. The continued operation of the two percent threshold in
the distribution of the additional seats frustrates the attainment of the permissive ceiling that 20% of the
members of the House of Representatives shall consist of party-list representatives.

To illustrate: There are 55 available party-list seats. Suppose there are 50 million votes cast for the 100
participants in the party list elections. A party that has two percent of the votes cast, or one million
votes, gets a guaranteed seat. Let us further assume that the first 50 parties all get one million votes.
Only 50 parties get a seat despite the availability of 55 seats. Because of the operation of the two
percent threshold, this situation will repeat itself even if we increase the available party-list seats to 60
seats and even if we increase the votes cast to 100 million. Thus, even if the maximum number of parties
get two percent of the votes for every party, it is always impossible for the number of occupied party-list
seats to exceed 50 seats as long as the two percent threshold is present.

We therefore strike down the two percent threshold only in relation to the distribution of the additional
seats as found in the second clause of Section 11(b) of R.A. No. 7941. The two percent threshold
presents an unwarranted obstacle to the full implementation of Section 5(2), Article VI of the
Constitution and prevents the attainment of "the broadest possible representation of party, sectoral or
group interests in the House of Representatives."30

In determining the allocation of seats for party-list representatives under Section 11 of R.A. No. 7941,
the following procedure shall be observed:

1. The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the
number of votes they garnered during the elections.

2. The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for
the party-list system shall be entitled to one guaranteed seat each.

3. Those garnering sufficient number of votes, according to the ranking in paragraph 1, shall be entitled
to additional seats in proportion to their total number of votes until all the additional seats are allocated.

4. Each party, organization, or coalition shall be entitled to not more than three (3) seats.

In computing the additional seats, the guaranteed seats shall no longer be included because they have
already been allocated, at one seat each, to every two-percenter. Thus, the remaining available seats for
allocation as "additional seats" are the maximum seats reserved under the Party List System less the
guaranteed seats. Fractional seats are disregarded in the absence of a provision in R.A. No. 7941 allowing
for a rounding off of fractional seats.

In declaring the two percent threshold unconstitutional, we do not limit our allocation of additional
seats in Table 3 below to the two-percenters. The percentage of votes garnered by each party-list
candidate is arrived at by dividing the number of votes garnered by each party by 15,950,900, the total
number of votes cast for party-list candidates. There are two steps in the second round of seat
allocation. First, the percentage is multiplied by the remaining available seats, 38, which is the difference
between the 55 maximum seats reserved under the Party-List System and the 17 guaranteed seats of the
two-percenters. The whole integer of the product of the percentage and of the remaining available seats
corresponds to a party’s share in the remaining available seats. Second, we assign one party-list seat to
each of the parties next in rank until all available seats are completely distributed. We distributed all of
the remaining 38 seats in the second round of seat allocation. Finally, we apply the three-seat cap to
determine the number of seats each qualified party-list candidate is entitled. Thus:
Table 3. Distribution of Available Party-List Seats

Rank Party Votes Garnered Votes Garnered over

Total Votes for Party List, in %

(A) Guaranteed Seat

(First Round)

(B) Additional

Seats

(Second Round)

(C) (B) plus (C), in whole integers

(D) Applying the three seat cap

(E)

1 BUHAY 1,169,234 7.33% 1 2.79 3 N.A.

2 BAYAN MUNA 979,039 6.14% 1 2.33 3 N.A.

3 CIBAC 755,686 4.74% 1 1.80 2 N.A.

4 GABRIELA 621,171 3.89% 1 1.48 2 N.A.

5 APEC 619,657 3.88% 1 1.48 2 N.A.

6 A Teacher 490,379 3.07% 1 1.17 2 N.A.

7 AKBAYAN 466,112 2.92% 1 1.11 2 N.A.

8 ALAGAD 423,149 2.65% 1 1.01 2 N.A.

931 COOP-NATCCO 409,883 2.57% 1 1 2 N.A.

10 BUTIL 409,160 2.57% 1 1 2 N.A.

11 BATAS 385,810 2.42% 1 1 2 N.A.

12 ARC 374,288 2.35% 1 1 2 N.A.

13 ANAKPAWIS 370,261 2.32% 1 1 2 N.A.

14 ABONO 339,990 2.13% 1 1 2 N.A.

15 AMIN 338,185 2.12% 1 1 2 N.A.

16 AGAP 328,724 2.06% 1 1 2 N.A.

17 AN WARAY 321,503 2.02% 1 1 2 N.A.

18 YACAP 310,889 1.95% 0 1 1 N.A.

19 FPJPM 300,923 1.89% 0 1 1 N.A.

20 UNI-MAD 245,382 1.54% 0 1 1 N.A.

21 ABS 235,086 1.47% 0 1 1 N.A.

22 KAKUSA 228,999 1.44% 0 1 1 N.A.

23 KABATAAN 228,637 1.43% 0 1 1 N.A.

24 ABA-AKO 218,818 1.37% 0 1 1 N.A.

25 ALIF 217,822 1.37% 0 1 1 N.A.

26 SENIOR CITIZENS 213,058 1.34% 0 1 1 N.A.

27 AT 197,872 1.24% 0 1 1 N.A.

28 VFP 196,266 1.23% 0 1 1 N.A.

29 ANAD 188,521 1.18% 0 1 1 N.A.

30 BANAT 177,028 1.11% 0 1 1 N.A.

31 ANG KASANGGA 170,531 1.07% 0 1 1 N.A.

32 BANTAY 169,801 1.06% 0 1 1 N.A.

33 ABAKADA 166,747 1.05% 0 1 1 N.A.

34 1-UTAK 164,980 1.03% 0 1 1 N.A.

35 TUCP 162,647 1.02% 0 1 1 N.A.

36 COCOFED 155,920 0.98% 0 1 1 N.A.

Total

17

55

Applying the procedure of seat allocation as illustrated in Table 3 above, there are 55 party-list
representatives from the 36 winning party-list organizations. All 55 available party-list seats are filled.
The additional seats allocated to the parties with sufficient number of votes for one whole seat, in no
case to exceed a total of three seats for each party, are shown in column (D).

Participation of Major Political Parties in Party-List Elections

The Constitutional Commission adopted a multi-party system that allowed all political parties to
participate in the party-list elections. The deliberations of the Constitutional Commission clearly bear
this out, thus:

MR. MONSOD. Madam President, I just want to say that we suggested or proposed the party list system
because we wanted to open up the political system to a pluralistic society through a multiparty system. x
x x We are for opening up the system, and we would like very much for the sectors to be there. That is
why one of the ways to do that is to put a ceiling on the number of representatives from any single party
that can sit within the 50 allocated under the party list system. x x x.

xxx

MR. MONSOD. Madam President, the candidacy for the 198 seats is not limited to political parties. My
question is this: Are we going to classify for example Christian Democrats and Social Democrats as
political parties? Can they run under the party list concept or must they be under the district legislation
side of it only?

MR. VILLACORTA. In reply to that query, I think these parties that the Commissioner mentioned can field
candidates for the Senate as well as for the House of Representatives. Likewise, they can also field
sectoral candidates for the 20 percent or 30 percent, whichever is adopted, of the seats that we are
allocating under the party list system.

MR. MONSOD. In other words, the Christian Democrats can field district candidates and can also
participate in the party list system?

MR. VILLACORTA. Why not? When they come to the party list system, they will be fielding only sectoral
candidates.

MR. MONSOD. May I be clarified on that? Can UNIDO participate in the party list system?

MR. VILLACORTA. Yes, why not? For as long as they field candidates who come from the different
marginalized sectors that we shall designate in this Constitution.
MR. MONSOD. Suppose Senator Tañada wants to run under BAYAN group and says that he represents
the farmers, would he qualify?

MR. VILLACORTA. No, Senator Tañada would not qualify.

MR. MONSOD. But UNIDO can field candidates under the party list system and say Juan dela Cruz is a
farmer. Who would pass on whether he is a farmer or not?

MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin ito. Political parties, particularly
minority political parties, are not prohibited to participate in the party list election if they can prove that
they are also organized along sectoral lines.

MR. MONSOD. What the Commissioner is saying is that all political parties can participate because it is
precisely the contention of political parties that they represent the broad base of citizens and that all
sectors are represented in them. Would the Commissioner agree?

MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang political party, it will
dominate the party list at mawawalang saysay din yung sector. Lalamunin mismo ng political parties ang
party list system. Gusto ko lamang bigyan ng diin ang "reserve." Hindi ito reserve seat sa marginalized
sectors. Kung titingnan natin itong 198 seats, reserved din ito sa political parties.

MR. MONSOD. Hindi po reserved iyon kasi anybody can run there. But my question to Commissioner
Villacorta and probably also to Commissioner Tadeo is that under this system, would UNIDO be banned
from running under the party list system?

MR. VILLACORTA. No, as I said, UNIDO may field sectoral candidates. On that condition alone, UNIDO
may be allowed to register for the party list system.

MR. MONSOD. May I inquire from Commissioner Tadeo if he shares that answer?

MR. TADEO. The same.

MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral lines.

xxxx

MR. OPLE. x x x In my opinion, this will also create the stimulus for political parties and mass
organizations to seek common ground. For example, we have the PDP-Laban and the UNIDO. I see no
reason why they should not be able to make common goals with mass organizations so that the very
leadership of these parties can be transformed through the participation of mass organizations. And if
this is true of the administration parties, this will be true of others like the Partido ng Bayan which is now
being formed. There is no question that they will be attractive to many mass organizations. In the
opposition parties to which we belong, there will be a stimulus for us to contact mass organizations so
that with their participation, the policies of such parties can be radically transformed because this
amendment will create conditions that will challenge both the mass organizations and the political
parties to come together. And the party list system is certainly available, although it is open to all the
parties. It is understood that the parties will enter in the roll of the COMELEC the names of
representatives of mass organizations affiliated with them. So that we may, in time, develop this
excellent system that they have in Europe where labor organizations and cooperatives, for example,
distribute themselves either in the Social Democratic Party and the Christian Democratic Party in
Germany, and their very presence there has a transforming effect upon the philosophies and the
leadership of those parties.

It is also a fact well known to all that in the United States, the AFL-CIO always vote with the Democratic
Party. But the businessmen, most of them, always vote with the Republican Party, meaning that there is
no reason at all why political parties and mass organizations should not combine, reenforce, influence
and interact with each other so that the very objectives that we set in this Constitution for sectoral
representation are achieved in a wider, more lasting, and more institutionalized way. Therefore, I support
this [Monsod-Villacorta] amendment. It installs sectoral representation as a constitutional gift, but at the
same time, it challenges the sector to rise to the majesty of being elected representatives later on
through a party list system; and even beyond that, to become actual political parties capable of
contesting political power in the wider constitutional arena for major political parties.

x x x 32 (Emphasis supplied)

R.A. No. 7941 provided the details for the concepts put forward by the Constitutional Commission.
Section 3 of R.A. No. 7941 reads:

Definition of Terms. (a) The party-list system is a mechanism of proportional representation in the
election of representatives to the House of Representatives from national, regional and sectoral parties
or organizations or coalitions thereof registered with the Commission on Elections (COMELEC).
Component parties or organizations of a coalition may participate independently provided the coalition
of which they form part does not participate in the party-list system.

(b) A party means either a political party or a sectoral party or a coalition of parties.

(c) A political party refers to an organized group of citizens advocating an ideology or platform, principles
and policies for the general conduct of government and which, as the most immediate means of
securing their adoption, regularly nominates and supports certain of its leaders and members as
candidates for public office.

It is a national party when its constituency is spread over the geographical territory of at least a majority
of the regions. It is a regional party when its constituency is spread over the geographical territory of at
least a majority of the cities and provinces comprising the region.

(d) A sectoral party refers to an organized group of citizens belonging to any of the sectors enumerated
in Section 5 hereof whose principal advocacy pertains to the special interests and concerns of their
sector,

(e) A sectoral organization refers to a group of citizens or a coalition of groups of citizens who share
similar physical attributes or characteristics, employment, interests or concerns.

(f) A coalition refers to an aggrupation of duly registered national, regional, sectoral parties or
organizations for political and/or election purposes.

Congress, in enacting R.A. No. 7941, put the three-seat cap to prevent any party from dominating the
party-list elections.

Neither the Constitution nor R.A. No. 7941 prohibits major political parties from participating in the
party-list system. On the contrary, the framers of the Constitution clearly intended the major political
parties to participate in party-list elections through their sectoral wings. In fact, the members of the
Constitutional Commission voted down, 19-22, any permanent sectoral seats, and in the alternative the
reservation of the party-list system to the sectoral groups.33 In defining a "party" that participates in
party-list elections as either "a political party or a sectoral party," R.A. No. 7941 also clearly intended
that major political parties will participate in the party-list elections. Excluding the major political parties
in party-list elections is manifestly against the Constitution, the intent of the Constitutional Commission,
and R.A. No. 7941. This Court cannot engage in socio-political engineering and judicially legislate the
exclusion of major political parties from the party-list elections in patent violation of the Constitution
and the law.

Read together, R.A. No. 7941 and the deliberations of the Constitutional Commission state that major
political parties are allowed to establish, or form coalitions with, sectoral organizations for electoral or
political purposes. There should not be a problem if, for example, the Liberal Party participates in the
party-list election through the Kabataang Liberal ng Pilipinas (KALIPI), its sectoral youth wing. The other
major political parties can thus organize, or affiliate with, their chosen sector or sectors. To further
illustrate, the Nacionalista Party can establish a fisherfolk wing to participate in the party-list election,
and this fisherfolk wing can field its fisherfolk nominees. Kabalikat ng Malayang Pilipino (KAMPI) can do
the same for the urban poor.

The qualifications of party-list nominees are prescribed in Section 9 of R.A. No. 7941:

Qualifications of Party-List Nominees. — No person shall be nominated as party-list representative unless

he is a natural born citizen of the Philippines, a registered voter, a resident of the Philippines for a period
of not less than one (1) year immediately preceding the day of the elections, able to read and write,
bona fide member of the party or organization which he seeks to represent for at least ninety (90) days
preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election.

In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty
(30) years of age on the day of the election. Any youth sectoral representative who attains the age of
thirty (30) during his term shall be allowed to continue until the expiration of his term.

Under Section 9 of R.A. No. 7941, it is not necessary that the party-list organization’s nominee "wallow in
poverty, destitution and infirmity"34 as there is no financial status required in the law. It is enough that
the nominee of the sectoral party/organization/coalition belongs to the marginalized and
underrepresented sectors,35 that is, if the nominee represents the fisherfolk, he or she must be a
fisherfolk, or if the nominee represents the senior citizens, he or she must be a senior citizen.

Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire 20% allocation of party-
list representatives found in the Constitution. The Constitution, in paragraph 1, Section 5 of Article VI,
left the determination of the number of the members of the House of Representatives to Congress: "The
House of Representatives shall be composed of not more than two hundred and fifty members, unless
otherwise fixed by law, x x x." The 20% allocation of party-list representatives is merely a ceiling; party-
list representatives cannot be more than 20% of the members of the House of Representatives.
However, we cannot allow the continued existence of a provision in the law which will systematically
prevent the constitutionally allocated 20% party-list representatives from being filled. The three-seat
cap, as a limitation to the number of seats that a qualified party-list organization may occupy, remains a
valid statutory device that prevents any party from dominating the party-list elections. Seats for party-list
representatives shall thus be allocated in accordance with the procedure used in Table 3 above.

However, by a vote of 8-7, the Court decided to continue the ruling in Veterans disallowing major
political parties from participating in the party-list elections, directly or indirectly. Those who voted to
continue disallowing major political parties from the party-list elections joined Chief Justice Reynato S.
Puno in his separate opinion. On the formula to allocate party-list seats, the Court is unanimous in
concurring with this ponencia.

WHEREFORE, we PARTIALLY GRANT the petition. We SET ASIDE the Resolution of the COMELEC dated 3
August 2007 in NBC No. 07-041 (PL) as well as the Resolution dated 9 July 2007 in NBC No. 07-60. We
declare unconstitutional the two percent threshold in the distribution of additional party-list seats. The
allocation of additional seats under the Party-List System shall be in accordance with the procedure used
in Table 3 of this Decision. Major political parties are disallowed from participating in party-list elections.
This Decision is immediately executory. No pronouncement as to costs.

SO ORDERED.

ANTONIO T. CARPIO

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

LEONARDO A. QUISUMBING

Associate Justice CONSUELO YNARES-SANTIAGO

Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice RENATO C. CORONA

Associate Justice

CONCHITA CARPIO MORALES

Associate Justice DANTE O. TINGA

Associate Justice

MINITA V. CHICO-NAZARIO

Associate Justice PRESBITERO J. VELASCO, JR.

Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice ARTURO D. BRION

Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice DIOSDADO M. PERALTA

Associate Justice

LUCAS P. BERSAMIN

Associate Justice

CERTIFICATION

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

REYNATO S. PUNO

Chief Justice

Footnotes

1 Under Rule 65 of the 1997 Rules of Civil Procedure.

2 Rollo (G.R. No. 179271), pp. 86-87. Signed by Chairman Benjamin S. Abalos, Sr., Commissioners
Resurreccion Z. Borra, Florentino A. Tuason, Jr., Romeo A. Brawner, Rene V. Sarmiento, and Nicodemo T.
Ferrer.

3 Under Rule 65 of the 1997 Rules of Civil Procedure.

4 Rollo (G.R. No. 179295), pp. 103-108. Signed by Chairman Benjamin S. Abalos, Sr., Commissioners
Resurreccion Z. Borra, Florentino A. Tuason, Jr., Romeo A. Brawner, Rene V. Sarmiento, and Nicodemo T.
Ferrer.

5 396 Phil. 419 (2000).

6 Rollo (G.R. No. 179271), pp. 969-986; rollo (G.R. No. 179295), pp. 798-815. Party-List Canvass Report
No. 32, as of 31 August 2007, 6:00 p.m.

7 Rollo (G.R. No. 179271), p. 70.

8 Rollo (G.R. No. 179271), pp. 88-92.

9 Id. at 150-153.

10 Id. at 86-87.

11 Rollo (G.R. No. 179295), p. 112.

12 Rollo (G.R. No. 179271), pp. 158-159. NBC Resolution No. 07-74, 24 July 2007.

13 Id. at 160-161. NBC Resolution No. 07-87, 3 August 2007.

14 NBC Resolution No. 07-97, 4 September 2007.

15 Rollo (G.R. No. 179295), pp. 816-817. This COMELEC certification should have included An Waray,
which was proclaimed on 4 September 2007 under NBC Resolution No. 07-97.

16 Rollo (G.R. No. 179271), p. 14.

17 Rollo (G.R. No. 179295), pp. 21-22.

18 Rollo (G.R. No. 179271), p. 553; rollo (G. R. No. 179295), p. 341.

19 Supra note 5 at 424.

20 Id. at 446-451. We quote below the discussion in Veterans explaining the First Party Rule:

Formula for Determining

Additional Seats for the First Party

Now, how do we determine the number of seats the first party is entitled to? The only basis given by the
law is that a party receiving at least two percent of the total votes shall be entitled to one seat.
Proportionally, if the first party were to receive twice the number of votes of the second party, it should
be entitled to twice the latter’s number of seats and so on. The formula, therefore, for computing the
number of seats to which the first party is entitled is as follows:

Number of votes

of first party

Total votes for

party-list system = Proportion of votes of first party relative to

total votes for party-list system

If the proportion of votes received by the first party without rounding it off is equal to at least six percent
of the total valid votes cast for all the party list groups, then the first party shall be entitled to two
additional seats or a total of three seats overall. If the proportion of votes without a rounding off is equal
to or greater than four percent, but less than six percent, then the first party shall have one additional or
a total of two seats. And if the proportion is less than four percent, then the first party shall not be
entitled to any additional seat.

We adopted this six percent bench mark, because the first party is not always entitled to the maximum
number of additional seats. Likewise, it would prevent the allotment of more than the total number of
available seats, such as in an extreme case wherein 18 or more parties tie for the highest rank and are
thus entitled to three seats each. In such scenario, the number of seats to which all the parties are
entitled may exceed the maximum number of party-list seats reserved in the House of Representatives.

xxx

Note that the above formula will be applicable only in determining the number of additional seats the
first party is entitled to. It cannot be used to determine the number of additional seats of the other
qualified parties. As explained earlier, the use of the same formula for all would contravene the
proportional representation parameter. For example, a second party obtains six percent of the total
number of votes cast. According to the above formula, the said party would be entitled to two additional
seats or a total of three seats overall. However, if the first party received a significantly higher amount of
votes — say, twenty percent — to grant it the same number of seats as the second party would violate
the statutory mandate of proportional representation, since a party getting only six percent of the votes
will have an equal number of representatives as the one obtaining twenty percent. The proper solution,
therefore, is to grant the first party a total of three seats; and the party receiving six percent, additional
seats in proportion to those of the first party.

Formula for Additional

Seats of Other Qualified Parties

Step Three The next step is to solve for the number of additional seats that the other qualified parties
are entitled to, based on proportional representation. The formula is encompassed by the following
complex fraction:

Additional seats

for concerned party = No. of votes of

concerned party
Total No. of votes

of party-list system

No. of votes

of first party

Total No. of votes

of party-list system x No. of additional

seats allocated

to the first party

In simplified form, it is written as follows:

Additional seats

for concerned party = No. of votes of

concerned party

No. of votes

of first party x No. of additional

seats allocated to

the first party

xxx

Incidentally, if the first party is not entitled to any additional seat, then the ratio of the number of votes
for the other party to that for the first one is multiplied by zero. The end result would be zero additional
seat for each of the other qualified parties as well.

The above formula does not give an exact mathematical representation of the number of additional
seats to be awarded since, in order to be entitled to one additional seat, an exact whole number is
necessary. In fact, most of the actual mathematical proportions are not whole numbers and are not
rounded off for the reasons explained earlier. To repeat, rounding off may result in the awarding of a
number of seats in excess of that provided by the law. Furthermore, obtaining absolute proportional
representation is restricted by the three-seat-per-party limit to a maximum of two additional slots. An
increase in the maximum number of additional representatives a party may be entitled to would result in
a more accurate proportional representation. But the law itself has set the limit: only two additional
seats. Hence, we need to work within such extant parameter.
21 Id. at 475-481.

22 The second vote cast by a registered voter is for the party-list candidates as provided in Section 10 of
R.A. No. 7941.

23 Rollo (G.R. No. 179271), p. 47.

24 Id. at 48.

25 Id. at 1076.

26 Rollo (G.R. No. 179295), pp. 66-81.

27 Rollo (G.R. No. 179271), pp. 969-974; rollo (G.R. No. 179295), pp. 798-803. Party-List Canvass Report
No. 32, as of 31 August 2007, 6:00 p.m.

28 Id.

29 Proclamation deferred by COMELEC.

30 Section 2, R.A. No. 7941.

31 The product of the percentage and the remaining available seats of all parties ranked nine and below
is less than one.

32 II Record, Constitutional Commission 256-257 (25 July 1986), 568 (1 August 1986).

33 Id. at 584 (1 August 1986). Dissenting opinion of Justice Jose C. Vitug in Ang Bagong Bayani- OFW
Labor Party v. COMELEC, 412 Phil. 308, 350 (2001).
34 Ang Bagong Bayani-OFW Labor Party v. COMELEC, 412 Phil. 308, 336 (2001).

35 Section 2, R.A. No. 7941.

The Lawphil Project - Arellano Law Foundation

CONCURRING AND DISSENTING OPINION

PUNO, C.J.:

History has borne witness to the struggle of the faceless masses to find their voice, even as they are
relegated to the sidelines as genuine functional representation systemically evades them. It is by reason
of this underlying premise that the party-list system was espoused and embedded in the Constitution,
and it is within this context that I register my dissent to the entry of major political parties to the party-
list system.

The Court today effectively reversed the ruling in Ang Bagong Bayani v. Comelec1 with regard to the
computation of seat allotments and the participation of major political parties in the party-list system. I
vote for the formula propounded by the majority as it benefits the party-list system but I regret that my
interpretation of Article VI, Section 5 of the Constitution with respect to the participation of the major
political parties in the election of party-list representatives is not in direct congruence with theirs, hence
this dissent.

To revisit the crux of the controversy, the pertinent portion of Article VI, Section 5 of the Constitution
reads:

Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty
members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their
respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided
by law, shall be elected through a party-list system of registered national, regional, and sectoral parties
or organizations.
(2) The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party list. For three consecutive terms after the ratification of
this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided
by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities,
women, youth, and such other sectors as may be provided by law, except the religious sector.2

It will be remembered that the petitioners in Ang Bagong Bayani sought the disqualification of the major
political parties on the ground that the party-list system was intended to benefit the marginalized and
underrepresented, and not the mainstream political parties, the non-marginalized or overrepresented.
Rising to the occasion, the Court ruled through then Associate, later Chief Justice Panganiban, that while
any duly registered political party, organization or group may participate, the role of the Comelec is to
ensure that only those who are marginalized and underrepresented become members of Congress
through the "Filipino-style" party-list elections. Characterizing the party-list system as a social justice
vehicle, the Court batted for the empowerment of the masses, thus—

It is ironic, therefore, that the marginalized and underrepresented in our midst are the majority who
wallow in poverty, destitution and infirmity. It was for them that the party-list system was enacted — to
give them not only genuine hope, but genuine power; to give them the opportunity to be elected and to
represent the specific concerns of their constituencies; and simply to give them a direct voice in
Congress and in the larger affairs of the State. In its noblest sense, the party-list system truly empowers
the masses and ushers a new hope for genuine change. Verily, it invites those marginalized and
underrepresented in the past — the farm hands, the fisher folk, the urban poor, even those in the
underground movement — to come out and participate, as indeed many of them came out and
participated during the last elections. The State cannot now disappoint and frustrate them by disabling
and desecrating this social justice vehicle.

Today, less than a decade after, there is an attempt to undo the democratic victory achieved by the
marginalized in the political arena in Ang Bagong Bayani. In permitting the major political parties to
participate in the party-list system, Mr. Justice Carpio relies on the deliberations of the Constitutional
Commission. Allegedly, the said deliberations indicate that the party-list system is open to all political
parties, as long as they field candidates who come from the different marginalized sectors.3 Buttressing
his view, Mr. Justice Carpio notes that the major political parties also fall within the term "political
parties" in the Definition of Terms in Republic Act 7941, otherwise known as the Party-List System Act.4
Likewise, he holds that the qualifications of a party-list nominee as prescribed in Section 9 of the said law
do not specify any financial status or educational requirement, hence, it is not necessary for the party-
list nominee to "wallow in poverty, destitution and infirmity."5 It is then concluded that major political
parties may now participate in the party-list system.
With all due respect, I cannot join this submission. We stand on solid grounds when we interpret the
Constitution to give utmost deference to the democratic sympathies, ideals and aspirations of the
people. More than the deliberations in the Constitutional Commission, these are expressed in the text of
the Constitution which the people ratified. Indeed, it is the intent of the sovereign people that matters in
interpreting the Constitution. In Civil Liberties Union v. Executive Secretary, we held:

While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional
convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may
be had only when other guides fail as said proceedings are powerless to vary the terms of the
Constitution when the meaning is clear. Debates in the constitutional convention "are of value as
showing the views of the individual members, and as indicating the reason for their votes, but they give
us no light as to the views of the large majority who did not talk, much less of the mass or our fellow
citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to
construe the constitution from what appears upon its face.6

Everybody agrees that the best way to interpret the Constitution is to harmonize the whole instrument,
its every section and clause. 7 We should strive to make every word of the fundamental law operative
and avoid rendering some words idle and nugatory.8 The harmonization of Article VI, Section 5 with
related constitutional provisions will better reveal the intent of the people as regards the party-list
system. Thus, under Section 7 of the Transitory Provisions,9 the President was permitted to fill by
appointment the seats reserved for sectoral representation under the party-list system from a list of
nominees submitted by the respective sectors. This was the result of historical precedents that saw how
the elected Members of the interim Batasang Pambansa and the regular Batasang Pambansa tried to
torpedo sectoral representation and delay the seating of sectoral representatives on the ground that
they could not rise to the same levelled status of dignity as those elected by the people.101avvphi1 To
avoid this bias against sectoral representatives, the President was given all the leeway to "break new
ground and precisely plant the seeds for sectoral representation so that the sectoral representatives will
take roots and be part and parcel exactly of the process of drafting the law which will stipulate and
provide for the concept of sectoral representation."11 Similarly, limiting the party-list system to the
marginalized and excluding the major political parties from participating in the election of their
representatives is aligned with the constitutional mandate to "reduce social, economic, and political
inequalities, and remove cultural inequalities by equitably diffusing wealth and political power for the
common good";12 the right of the people and their organizations to effective and reasonable
participation at all levels of social, political, and economic decision-making;13 the right of women to
opportunities that will enhance their welfare and enable them to realize their full potential in the service
of the nation;14 the right of labor to participate in policy and decision-making processes affecting their
rights and benefits in keeping with its role as a primary social economic force;15 the right of teachers to
professional advancement;16 the rights of indigenous cultural communities to the consideration of their
cultures, traditions and institutions in the formulation of national plans and policies,17 and the
indispensable role of the private sector in the national economy.18
There is no gainsaying the fact that the party-list parties are no match to our traditional political parties
in the political arena. This is borne out in the party-list elections held in 2001 where major political
parties were initially allowed to campaign and be voted for. The results confirmed the fear expressed by
some commissioners in the Constitutional Commission19 that major political parties would figure in the
disproportionate distribution of votes: of the 162 parties which participated, the seven major political
parties20 made it to the top 50. These seven parties garnered an accumulated 9.54% of the total
number of votes counted, yielding an average of 1.36% each, while the remaining 155 parties (including
those whose qualifications were contested) only obtained 90.45% or an average of 0.58% each. Of these
seven, three parties21 or 42.8% of the total number of the major parties garnered more than 2% of the
total number of votes each, a feat that would have entitled them to seat their members as party-list
representatives. In contrast, only about 4% of the total number of the remaining parties, or only 8 out of
the 155 parties garnered more than 2%.22

In sum, the evils that faced our marginalized and underrepresented people at the time of the framing of
the 1987 Constitution still haunt them today. It is through the party-list system that the Constitution
sought to address this systemic dilemma. In ratifying the Constitution, our people recognized how the
interests of our poor and powerless sectoral groups can be frustrated by the traditional political parties
who have the machinery and chicanery to dominate our political institutions. If we allow major political
parties to participate in the party-list system electoral process, we will surely suffocate the voice of the
marginalized, frustrate their sovereignty and betray the democratic spirit of the Constitution. That
opinion will serve as the graveyard of the party-list system.

IN VIEW WHEREOF, I dissent on the ruling allowing the entry of major political parties into the party-list
system.

REYNATO S. PUNO

Chief Justice

Footnotes

1 G.R. No. 147589, June 26, 2001, 359 SCRA 698.

2 Id.
3 II Record, Constitutional Commission, 25 July 1986, pp. 256-257.

4 Section 3.

5 Main opinion, p. 33.

6 G.R. No.83896, February 22, 1991, 194 SCRA 317, 337.

7 Lamborn v. Bell, 20 L.R.A. 241, 18 Colo. 346, 32.

8 Id.

9 Article XVIII.

10 V Record, Constitutional Commission, 1 October 1986, p. 332.

11 Id. at 330.

12 Article XIII, Section 1.

13 Article XIII, Sec. 16.

14 Article XIII, Sec. 3, in relation to section 14.

15 Article XIII, Sec. 3, in relation to Article II, Sec. 18.

16 Article XIV, Sec. 5.

17 Article XIV, Sec. 17.

18 Article II, Sec. 20.

19 Id., at 562.

20 As noted in Bagong Bayani: Nationalist People’s Coalition, Lakas NUCD-UMDP, Laban ng

Demokratikong Pilipino, Aksyon Demokratiko, Partido ng Masang Pilipino, Partido Demokratikong Pilipino
Lakas ng Bayan and Liberal Party.

21 Nationalist People’s Coalition, Lakas NUCD-UMDP and Laban ng Demokratikong Pilipino.

22 Party List Canvass Report No. 26, Commission on Elections.

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION

NACHURA, J.:

I concur with the well-written ponencia of Justice Antonio T. Carpio.

However, I wish to add a few words to support the proposition that the inflexible 2% threshold vote
required for entitlement by a party-list group to a seat in the House of Representatives in Republic Act
(R.A.) No. 79411 is unconstitutional. This minimum vote requirement ─ fixed at 2% of the total number
of votes cast for the party list system ─ presents an unwarranted obstacle to the full implementation of
Section 5 (2), Article VI, of the Philippine Constitution. As such, it effectively defeats the declared
constitutional policy, as well as the legislative objective expressed in the enabling law, to allow the
people’s broadest representation in Congress,2 the raison d’etre for the adoption of the party-list
system.

Article VI, Section 5 of the 1987 Constitution pertinently provides:

Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty
members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their
respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided
by law, shall be elected through a party-list system of registered national, regional, and sectoral parties
or organizations.

(2) The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party-list. For three consecutive terms after the ratification of
this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided
by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities,
women, youth, and such other sectors as may be provided by law, except the religious sector.

(3) Each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent
territory. Each city with a population of at least hundred fifty thousand, or each province, shall have at
least one representative.

(4) Within three years following the return of every census, the Congress shall make a reapportionment
of legislative districts based on the standards provided in this section.3

This party-list provision in the Constitution intends to open the system4 of representation by allowing
different sectors, parties, organizations and coalitions to win a legislative seat. It diversifies the
membership in the legislature and "gives genuine power to the people."5 As aforesaid, the Constitution
desires the people’s widest representation in Congress.

To determine the total number of seats that will be allocated to party-list groups based on the foregoing
constitutional provision, this Court, in Veterans Federation Party v. Commission on Elections,6 declared:

Clearly, the Constitution makes the number of district representatives the determinant in arriving at the
number of seats allocated for party-list lawmakers, who shall comprise "twenty per centum of the total
number of representatives, including those under the party-list." We thus translate this legal provision
into a mathematical formula, as follows:

No. of district representatives

.80 x .20 = No. of party-list representatives

This formulation means that any increase in the number of district representatives, as may be provided
by law, will necessarily result in a corresponding increase in the number of party-list seats.

On the basis of this formula, the number of party-list seats is not static; it could add up to a substantial
figure depending on the additional number of legislative districts which Congress may create. Thus, for
instance, the ponencia states that "since the 14th Congress of the Philippines has 220 district
representatives, there are 55 seats available to party-list representatives," based on the following
computation:

220

.80 x .20 = 55

To provide the mechanics for the implementation of the party-list system, Congress enacted R.A. No.
7941, Section 117 of which sets, among others, the inviolable parameter that a party, sectoral
organization or coalition, must obtain at least two percent (2%) of the total votes cast for the party-list
system in order to claim one seat in the House of Representatives. This is referred to as the threshold
vote, or the minimum vote requirement.

Here lies the crux of its unconstitutionality.

Given this fixed 2% threshold vote, the maximum number of seats in the House of Representatives which
may be occupied by party-list representatives can never exceed fifty (50), because:

100%

(Total number of votes cast for party-list system)

2%

= 50

In other words, there will never be a situation where the number of party-list representatives will exceed
50, regardless of the number of district representatives.

I see a scenario in the future when, because of the inexorable growth in the country’s population,
Congress should see fit to increase the legislative district seats to 400. If that happens, there would be a
corresponding adjustment in party-list representation that will translate to 100 party-list seats, applying
the formula in Veterans Federation Party, viz:

400

.80 x .20 = 100

Yet, by virtue of the rigid 2% threshold requirement, the number of seats that the political parties,
organizations or coalitions registered under the party-list system could ever aspire for would still be
limited to only 50.

This is not an unlikely scenario. Today, a little over eight (8) years after this Court’s decision in Veterans
Federation Party, we see that in the 14th Congress, 55 seats are allocated to party-list representatives,
using the Veterans formula. But that figure (of 55) can never be realized, because the 2% threshold vote
requirement makes it mathematically impossible to have more than 50 seats. After all, the total number
of votes cast for the party-list system can never exceed 100%.

This, to my mind, stigmatizes the 2% minimum vote requirement in R.A. 7941. A legal provision that
poses an insurmountable barrier to the full implementation and realization of the constitutional
provision on the party-list system should be declared void. As Chief Justice Reynato S. Puno says in his
Concurring and Dissenting Opinion, "(W)e should strive to make every word of the fundamental law
operative and avoid rendering some word idle and nugatory."8

Lest I be misunderstood, I do not advocate doing away completely with a threshold vote requirement.
The need for such a minimum vote requirement was explained in careful and elaborate detail by Chief
Justice Puno in his separate concurring opinion in Veterans Federation Party. I fully agree with him that a
minimum vote requirement is needed —

1. to avoid a situation where the candidate will just use the party-list system as a fallback position;

2. to discourage nuisance candidates or parties, who are not ready and whose chances are very low,
from participating in the elections;

3. to avoid the reserve seat system by opening up the system;

4. to encourage the marginalized sectors to organize, work hard, and earn their seats within the system;
5. to enable sectoral representatives to rise to the same majesty as that of the elected representatives in
the legislative body, rather than owing to some degree their seats in the legislative body either to an
outright constitutional gift or to an appointment by the President of the Philippines;

6. if no threshold is imposed, this will actually proliferate political party groups and those who have not
really been given by the people sufficient basis for them to represent their constituents and, in turn, they
will be able to get to the Parliament through the backdoor under the name of the party-list system; and

7. to ensure that only those with a more or less substantial following can be represented.9

However, with the burgeoning of the population, the steady increase in the party-list seat allotment as it
keeps pace with the creation of additional legislative districts, and the foreseeable growth of party-list
groups, the fixed 2% vote requirement is no longer viable. It does not adequately respond to the
inevitable changes that come with time; and it is, in fact, inconsistent with the Constitution, because it
prevents the fundamental law from ever being fully operative.

It is correct to say, and I completely agree with Veterans Federation Party, that Section 5 (2), Article VI of
the Constitution, is not mandatory, that it merely provides a ceiling for the number of party-list seats in
Congress. But when the enabling law, R.A. 7941, enacted by Congress for the precise purpose of
implementing the constitutional provision, contains a condition that places the constitutional ceiling
completely beyond reach, totally impossible of realization, then we must strike down the offending
condition as an affront to the fundamental law. This is not simply an inquiry into the wisdom of the
legislative measure; rather it involves the duty of this Court to ensure that constitutional provisions
remain effective at all times. No rule of statutory construction can save a particular legislative enactment
that renders a constitutional provision inoperative and ineffectual.

In light of the foregoing disquisition, what then do we use as the norm for a minimum vote requirement
to entitle a political party, sectoral organization or coalition, to a party-list seat in the House of
Representatives?

I submit that, until Congress shall have effected an acceptable amendment to the minimum vote
requirement in R.A. 7941, we abide by the sensible standard of "proportional representation" and adopt
a gradually regressive threshold vote requirement, inversely proportional to the increase in the number
of party-list seats. Thus, at present, considering that there are 55 seats allocated for party-list groups, the
formula should be:
100%

(Total number of votes cast for party-list)

55 party-list seats

= 1.818%

The minimum vote requirement will gradually lessen as the number of party-list seats increases.
Accordingly, if the scenario we presented above should ever come to pass, and there are 100 seats
allocated for party-list groups, then the threshold vote should be 1%, based on the following
computation:

100%

(Total number of votes cast for party-list)

100 party-list seats

= 1%

This is the more logical and equitable formula. It would judiciously respond to the inevitable changes in
the composition of the House of Representatives; it would open opportunities for the broadest people’s
representation in the House of Representatives; and more importantly, it would not violate the
Constitution.

Time changes and laws change with it.10 And the Constitution ---

must grow with the society it seeks to re-structure and march apace with the progress of the race,
drawing from the vicissitudes of history the dynamism and vitality that will keep it, far from being a
petrified rule, a pulsing, living law attuned to the heartbeat of the nation.11

Thus, with respect to the fixed threshold vote of 2% in Section 11 of R.A. No. 7941, I join the Court in
declaring it unconstitutional, since all enactments inconsistent with the Constitution should be
invalidated.12
 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. 196271 : October 18, 2011]

DATU MICHAEL ABAS KIDA, IN HIS PERSONAL CAPACITY, AND IN REPRESENTATION OF MAGUINDANAO
FEDERATION OF AUTONOMOUS IRRIGATORS ASSOCIATION, INC., HADJI MUHMINA J. USMAN, JOHN
ANTHONY L. LIM, JAMILON T. ODIN, ASRIN TIMBOL JAIYARI, MUJIB M. KALANG, ALIH AL-SAIDI J. SAPI-E,
KESSAR DAMSIE ABDIL, AND BASSAM ALUH SAUPI, PETITIONERS, VS. SENATE OF THE PHILIPPINES,
REPRESENTED BY ITS PRESIDENT JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES, THRU SPEAKER
FELICIANO BELMONTE, COMMISSION ON ELECTIONS, THRU ITS CHAIRMAN, SIXTO BRILLANTES, JR.,
PAQUITO OCHOA, JR., OFFICE OF THE PRESIDENT EXECUTIVE SECRETARY, FLORENCIO ABAD, JR.,
SECRETARY OF BUDGET, AND ROBERTO TAN, TREASURER OF THE PHILIPPINES, RESPONDENTS.

[G.R. NO. 196305]

BASARI D. MAPUPUNO, PETITIONER, VS. SIXTO BRILLANTES, IN HIS CAPACITY AS CHAIRMAN OF THE
COMMISSION ON ELECTIONS, FLORENCIO ABAD, JR. IN HIS CAPACITY AS SECRETARY OF THE
DEPARTMENT OF BUDGET AND MANAGEMENT, PACQUITO OCHOA, JR., IN HIS CAPACITY AS EXECUTIVE
SECRETARY, JUAN PONCE ENRILE, IN HIS CAPACITY AS SENATE PRESIDENT, AND FELICIANO BELMONTE, IN
HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, RESPONDENTS.

[G.R. NO. 197221]

REP. EDCEL C. LAGMAN, PETITIONER, VS. PAQUITO N. OCHOA, JR., IN HIS CAPACITY AS THE EXECUTIVE
SECRETARY, AND THE COMMISSION ON ELECTIONS, RESPONDENTS.

[G.R. NO. 197280]

ALMARIM CENTI TILLAH, DATU CASAN CONDING CANA, AND PARTIDO DEMOKRATIKO PILIPINO LAKAS
NG BAYAN (PDP-LABAN), PETITIONERS, VS. THE COMMISSION ON ELECTIONS, THROUGH ITS CHAIRMAN,
SIXTO BRILLANTES, JR., HON. PAQUITO N. OCHOA, JR., IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON.
FLORENCIO B. ABAD, JR., IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT, AND HON. ROBERTO B. TAN, IN HIS CAPACITY AS TREASURER OF THE PHILIPPINES,
RESPONDENTS.

[G.R. NO. 197282]

ATTY. ROMULO B. MACALINTAL, PETITIONER, VS. COMMISSION ON ELECTIONS AND THE OFFICE OF THE
PRESIDENT, THROUGH EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., RESPONDENTS. LUIS "BAROK"
BIRAOGO, PETITIONER, VS. THE COMMISSION ON ELECTIONS AND EXECUTIVE SECRETARY PAQUITO N.
OCHOA, JR., RESPONDENTS.

[G.R. NO. 197392]

JACINTO V. PARAS, PETITIONER, VS. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., AND THE
COMMISSION ON ELECTIONS, RESPONDENTS.

[G.R. NO. 197454]

MINORITY RIGHTS FORUM, PHILIPPINES, INC., RESPONDENTS-INTERVENOR.

DECISION

BRION, J.:

On June 30, 2011, Republic Act (RA) No. 10153, entitled "An Act Providing for the Synchronization of the
Elections in the Autonomous Region in Muslim Mindanao (ARMM) with the National and Local Elections
and for Other Purposes" was enacted. The law reset the ARMM elections from the 8th of August 2011,
to the second Monday of May 2013 and every three (3) years thereafter, to coincide with the country's
regular national and local elections. The law as well granted the President the power to "appoint
officers-in-charge (OICs) for the Office of the Regional Governor, the Regional Vice-Governor, and the
Members of the Regional Legislative Assembly, who shall perform the functions pertaining to the said
offices until the officials duly elected in the May 2013 elections shall have qualified and assumed office."

Even before its formal passage, the bills that became RA No. 10153 already spawned petitions against
their validity; House Bill No. 4146 and Senate Bill No. 2756 were challenged in petitions filed with this
Court. These petitions multiplied after RA No. 10153 was passed.

Factual Antecedents
The State, through Sections 15 to 22, Article X of the 1987 Constitution, mandated the creation of
autonomous regions in Muslim Mindanao and the Cordilleras. Section 15 states:

Section 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras
consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive
historical and cultural heritage, economic and social structures, and other relevant characteristics within
the framework of this Constitution and the national sovereignty as well as territorial integrity of the
Republic of the Philippines.

Section 18 of the Article, on the other hand, directed Congress to enact an organic act for these
autonomous regions to concretely carry into effect the granted autonomy.

Section 18. The Congress shall enact an organic act for each autonomous region with the assistance and
participation of the regional consultative commission composed of representatives appointed by the
President from a list of nominees from multisectoral bodies. The organic act shall define the basic
structure of government for the region consisting of the executive department and legislative assembly,
both of which shall be elective and representative of the constituent political units. The organic acts shall
likewise provide for special courts with personal, family and property law jurisdiction consistent with the
provisions of this Constitution and national laws.

The creation of the autonomous region shall be effective when approved by a majority of the votes cast
by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and
geographic areas voting favorably in such plebiscite shall be included in the autonomous region.

On August 1, 1989 or two years after the effectivity of the 1987 Constitution, Congress acted through
Republic Act (RA) No. 6734 entitled "An Act Providing for an Organic Act for the Autonomous Region in
Muslim Mindanao." A plebiscite was held on November 6, 1990 as required by Section 18(2), Article X of
RA No. 6734, thus fully establishing the Autonomous Region of Muslim Mindanao (ARMM). The initially
assenting provinces were Lanao del Sur, Maguindanao, Sulu and Tawi-tawi. RA No. 6734 scheduled the
first regular elections for the regional officials of the ARMM on a date not earlier than 60 days nor later
than 90 days after its ratification.

RA No. 9054 (entitled "An Act to Strengthen and Expand the Organic Act for the Autonomous Region in
Muslim Mindanao, Amending for the Purpose Republic Act No. 6734, entitled An Act Providing for the
Autonomous Region in Muslim Mindanao, as Amended") was the next legislative act passed. This law
provided further refinement in the basic ARMM structure first defined in the original organic act, and
reset the regular elections for the ARMM regional officials to the second Monday of September 2001.
Congress passed the next law affecting ARMM - RA No. 9140[1] - on June 22, 2001. This law reset the
first regular elections originally scheduled under RA No. 9054, to November 26, 2001. It likewise set the
plebiscite to ratify RA No. 9054 to not later than August 15, 2001.

RA No. 9054 was ratified in a plebiscite held on August 14, 2001. The province of Basilan and Marawi City
voted to join ARMM on the same date.

RA No. 9333[2] was subsequently passed by Congress to reset the ARMM regional elections to the 2nd
Monday of August 2005, and on the same date every 3 years thereafter. Unlike RA No. 6734 and RA No.
9054, RA No. 9333 was not ratified in a plebiscite.

Pursuant to RA No. 9333, the next ARMM regional elections should have been held on August 8, 2011.
COMELEC had begun preparations for these elections and had accepted certificates of candidacies for
the various regional offices to be elected. But on June 30, 2011, RA No. 10153 was enacted, resetting the
ARMM elections to May 2013, to coincide with the regular national and local elections of the country.

RA No. 10153 originated in the House of Representatives as House Bill (HB) No. 4146, seeking the
postponement of the ARMM elections scheduled on August 8, 2011. On March 22, 2011, the House of
Representatives passed HB No. 4146, with one hundred ninety one (191) Members voting in its favor.

After the Senate received HB No. 4146, it adopted its own version, Senate Bill No. 2756 (SB No. 2756), on
June 6, 2011. Thirteen (13) Senators voted favorably for its passage. On June 7, 2011, the House of
Representative concurred with the Senate amendments, and on June 30, 2011, the President signed RA
No. 10153 into law.

As mentioned, the early challenge to RA No. 10153 came through a petition filed with this Court - G.R.
No. 196271[3] - assailing the constitutionality of both HB No. 4146 and SB No. 2756, and challenging the
validity of RA No. 9333 as well for non-compliance with the constitutional plebiscite requirement.
Thereafter, petitioner Basari Mapupuno in G.R. No. 196305 filed another petition[4] also assailing the
validity of RA No. 9333.

With the enactment into law of RA No. 10153, the COMELEC stopped its preparations for the ARMM
elections. The law gave rise as well to the filing of the following petitions against its constitutionality:
a) Petition for Certiorari and Prohibition[5] filed by Rep. Edcel Lagman as a member of the House of
Representatives against Paquito Ochoa, Jr. (in his capacity as the Executive Secretary) and the COMELEC,
docketed as G.R. No. 197221;

b) Petition for Mandamus and Prohibition[6] filed by Atty. Romulo Macalintal as a taxpayer against the
COMELEC, docketed as G.R. No. 197282;

c) Petition for Certiorari and Mandamus, Injunction and Preliminary Injunction[7] filed by Louis "Barok"
Biraogo against the COMELEC and Executive Secretary Paquito N. Ochoa, Jr., docketed as G.R. No.
197392; and

d) Petition for Certiorari and Mandamus[8] filed by Jacinto Paras as a member of the House of
Representatives against Executive Secretary Paquito Ochoa, Jr. and the COMELEC, docketed as G.R. No.
197454.

Petitioners Alamarim Centi Tillah and Datu Casan Conding Cana as registered voters from the ARMM,
with the Partido Demokratiko Pilipino Lakas ng Bayan (a political party with candidates in the ARMM
regional elections scheduled for August 8, 2011), also filed a Petition for Prohibition and Mandamus[9]
against the COMELEC, docketed as G.R. No. 197280, to assail the constitutionality of RA No. 9140, RA No.
9333 and RA No. 10153.

Subsequently, Anak Mindanao Party-List, Minority Rights Forum Philippines, Inc. and Bangsamoro
Solidarity Movement filed their own Motion for Leave to Admit their Motion for Intervention and
Comment-in-Intervention dated July 18, 2011. On July 26, 2011, the Court granted the motion. In the
same Resolution, the Court ordered the consolidation of all the petitions relating to the constitutionality
of HB No. 4146, SB No. 2756, RA No. 9333, and RA No. 10153.

Oral arguments were held on August 9, 2011 and August 16, 2011. Thereafter, the parties were
instructed to submit their respective memoranda within twenty (20) days.

On September 13, 2011, the Court issued a temporary restraining order enjoining the implementation of
RA No. 10153 and ordering the incumbent elective officials of ARMM to continue to perform their
functions should these cases not be decided by the end of their term on September 30, 2011.

The Arguments
The petitioners assailing RA No. 9140, RA No. 9333 and RA No. 10153 assert that these laws amend RA
No. 9054 and thus, have to comply with the supermajority vote and plebiscite requirements prescribed
under Sections 1 and 3, Article XVII of RA No. 9094 in order to become effective.

The petitions assailing RA No. 10153 further maintain that it is unconstitutional for its failure to comply
with the three-reading requirement of Section 26(2), Article VI of the Constitution. Also cited as grounds
are the alleged violations of the right of suffrage of the people of ARMM, as well as the failure to adhere
to the "elective and representative" character of the executive and legislative departments of the
ARMM. Lastly, the petitioners challenged the grant to the President of the power to appoint OICs to
undertake the functions of the elective ARMM officials until the officials elected under the May 2013
regular elections shall have assumed office. Corrolarily, they also argue that the power of appointment
also gave the President the power of control over the ARMM, in complete violation of Section 16, Article
X of the Constitution.

The Issues

From the parties' submissions, the following issues were recognized and argued by the parties in the oral
arguments of August 9 and 16, 2011:

Whether the 1987 Constitution mandates the synchronization of elections

Whether the passage of RA No. 10153 violates Section 26(2), Article VI of the 1987 Constitution

Whether the passage of RA No. 10153 requires a supermajority vote and plebiscite

Does the postponement of the ARMM regular elections constitute an amendment to Section 7, Article
XVIII of RA No. 9054?

Does the requirement of a supermajority vote for amendments or revisions to RA No. 9054 violate
Section 1 and Section 16(2), Article VI of the 1987 Constitution and the corollary doctrine on irrepealable
laws?
Does the requirement of a plebiscite apply only in the creation of autonomous regions under paragraph
2, Section 18, Article X of the 1987 Constitution?

Whether RA No. 10153 violates the autonomy granted to the ARMM

Whether the grant of the power to appoint OICs violates:

Section 15, Article X of the 1987 Constitution

Section 16, Article X of the 1987 Constitution

Section 18, Article X of the 1987 Constitution

Whether the proposal to hold special elections is constitutional and legal.

We shall discuss these issues in the order they are presented above.

OUR RULING

We resolve to DISMISS the petitions and thereby UPHOLD the constitutionality of RA No. 10153 in toto.

I. Synchronization as a recognized constitutional mandate

The respondent Office of the Solicitor General (OSG) argues that the Constitution mandates
synchronization, and in support of this position, cites Sections 1, 2 and 5, Article XVIII (Transitory
Provisions) of the 1987 Constitution, which provides:

Section 1. The first elections of Members of the Congress under this Constitution shall be held on the
second Monday of May, 1987.
The first local elections shall be held on a date to be determined by the President, which may be
simultaneous with the election of the Members of the Congress. It shall include the election of all
Members of the city or municipal councils in the Metropolitan Manila area.

Section 2. The Senators, Members of the House of Representatives and the local officials first elected
under this Constitution shall serve until noon of June 30, 1992.

Of the Senators elected in the election in 1992, the first twelve obtaining the highest number of votes
shall serve for six year and the remaining twelve for three years.

xxx

Section 5. The six-year term of the incumbent President and Vice President elected in the February 7,
1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992.

The first regular elections for President and Vice-President under this Constitution shall be held on the
second Monday of May, 1992.

We agree with this position.

While the Constitution does not expressly state that Congress has to synchronize national and local
elections, the clear intent towards this objective can be gleaned from the Transitory Provisions (Article
XVIII) of the Constitution,[10] which show the extent to which the Constitutional Commission, by
deliberately making adjustments to the terms of the incumbent officials, sought to attain synchronization
of elections.[11]

The objective behind setting a common termination date for all elective officials, done among others
through the shortening the terms of the twelve winning senators with the least number of votes, is to
synchronize the holding of all future elections - whether national or local - to once every three years.[12]
This intention finds full support in the discussions during the Constitutional Commission deliberations.
[13]
These Constitutional Commission exchanges, read with the provisions of the Transitory Provisions of the
Constitution, all serve as patent indicators of the constitutional mandate to hold synchronized national
and local elections, starting the second Monday of May, 1992 and for all the following elections.

This Court was not left behind in recognizing the synchronization of the national and local elections as a
constitutional mandate. In Osmeña v. Commission on Elections,[14] we explained:

It is clear from the aforequoted provisions of the 1987 Constitution that the terms of office of Senators,
Members of the House of Representatives, the local officials, the President and the Vice-President have
been synchronized to end on the same hour, date and year -- noon of June 30, 1992.

It is likewise evident from the wording of the above-mentioned Sections that the term of synchronization
is used synonymously as the phrase holding simultaneously since this is the precise intent in terminating
their Office Tenure on the same day or occasion. This common termination date will synchronize future
elections to once every three years (Bernas, the Constitution of the Republic of the Philippines, Vol. II, p.
605).

That the election for Senators, Members of the House of Representatives and the local officials (under
Sec. 2, Art. XVIII) will have to be synchronized with the election for President and Vice President (under
Sec. 5, Art. XVIII) is likewise evident from the x x x records of the proceedings in the Constitutional
Commission. [Emphasis supplied.]

Although called regional elections, the ARMM elections should be included among the elections to be
synchronized as it is a "local" election based on the wording and structure of the Constitution.

A basic rule in constitutional construction is that the words used should be understood in the sense that
they have in common use and given their ordinary meaning, except when technical terms are employed,
in which case the significance thus attached to them prevails.[15] As this Court explained in People v.
Derilo,[16] "[a]s the Constitution is not primarily a lawyer's document, its language should be
understood in the sense that it may have in common. Its words should be given their ordinary meaning
except where technical terms are employed."

Understood in its ordinary sense, the word "local" refers to something that primarily serves the needs of
a particular limited district, often a community or minor political subdivision.[17] Regional elections in
the ARMM for the positions of governor, vice-governor and regional assembly representatives obviously
fall within this classification, since they pertain to the elected officials who will serve within the limited
region of ARMM.
From the perspective of the Constitution, autonomous regions are considered one of the forms of local
governments, as evident from Article X of the Constitution entitled "Local Government." Autonomous
regions are established and discussed under Sections 15 to 21 of this Article - the article wholly devoted
to Local Government. That an autonomous region is considered a form of local government is also
reflected in Section 1, Article X of the Constitution, which provides:

Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces,
cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao, and the
Cordilleras as hereinafter provided.

Thus, we find the contention - that the synchronization mandated by the Constitution does not include
the regional elections of the ARMM -unmeritorious. We shall refer to synchronization in the course of
our discussions below, as this concept permeates the consideration of the various issues posed in this
case and must be recalled time and again for its complete resolution.

II. The President's Certification on the Urgency of RA No. 10153

The petitioners in G.R. No. 197280 also challenge the validity of RA No. 10153 for its alleged failure to
comply with Section 26(2), Article VI of the Constitution[18] which provides that before bills passed by
either the House or the Senate can become laws, they must pass through three readings on separate
days. The exception is when the President certifies to the necessity of the bill's immediate enactment.

The Court, in Tolentino v. Secretary of Finance,[19] explained the effect of the President's certification of
necessity in the following manner:

The presidential certification dispensed with the requirement not only of printing but also that of
reading the bill on separate days. The phrase "except when the President certifies to the necessity of its
immediate enactment, etc." in Art. VI, Section 26[2] qualifies the two stated conditions before a bill can
become a law: [i] the bill has passed three readings on separate days and [ii] it has been printed in its
final form and distributed three days before it is finally approved.

xxx
That upon the certification of a bill by the President, the requirement of three readings on separate days
and of printing and distribution can be dispensed with is supported by the weight of legislative practice.
For example, the bill defining the certiorari jurisdiction of this Court which, in consolidation with the
Senate version, became Republic Act No. 5440, was passed on second and third readings in the House of
Representatives on the same day [May 14, 1968] after the bill had been certified by the President as
urgent.

In the present case, the records show that the President wrote to the Speaker of the House of
Representatives to certify the necessity of the immediate enactment of a law synchronizing the ARMM
elections with the national and local elections.[20] Following our Tolentino ruling, the President's
certification exempted both the House and the Senate from having to comply with the three separate
readings requirement.

On the follow-up contention that no necessity existed for the immediate enactment of these bills since
there was no public calamity or emergency that had to be met, again we hark back to our ruling in
Tolentino:

The sufficiency of the factual basis of the suspension of the writ of habeas corpus or declaration of
martial law Art. VII, Section 18, or the existence of a national emergency justifying the delegation of
extraordinary powers to the President under Art. VI, Section 23(2) is subject to judicial review because
basic rights of individuals may be of hazard. But the factual basis of presidential certification of bills,
which involves doing away with procedural requirements designed to insure that bills are duly
considered by members of Congress, certainly should elicit a different standard of review. [Emphasis
supplied.]

The House of Representatives and the Senate - in the exercise of their legislative discretion - gave full
recognition to the President's certification and promptly enacted RA No. 10153. Under the
circumstances, nothing short of grave abuse of discretion on the part of the two houses of Congress can
justify our intrusion under our power of judicial review.[21]

The petitioners, however, failed to provide us with any cause or justification for this course of action.
Hence, while the judicial department and this Court are not bound by the acceptance of the President's
certification by both the House of Representatives and the Senate, prudent exercise of our powers and
respect due our co-equal branches of government in matters committed to them by the Constitution,
caution a stay of the judicial hand.[22]

In any case, despite the President's certification, the two-fold purpose that underlies the requirement for
three readings on separate days of every bill must always be observed to enable our legislators and
other parties interested in pending bills to intelligently respond to them. Specifically, the purpose with
respect to Members of Congress is: (1) to inform the legislators of the matters they shall vote on and (2)
to give them notice that a measure is in progress through the enactment process.[23]

We find, based on the records of the deliberations on the law, that both advocates and the opponents of
the proposed measure had sufficient opportunities to present their views. In this light, no reason exists
to nullify RA No. 10153 on the cited ground.

III. A. RA No. 9333 and RA No. 10153 are not amendments to RA No. 9054

The effectivity of RA No. 9333 and RA No. 10153 has also been challenged because they did not comply
with Sections 1 and 3, Article XVII of RA No. 9054 in amending this law. These provisions require:

Section 1. Consistent with the provisions of the Constitution, this Organic Act may be reamended or
revised by the Congress of the Philippines upon a vote of two-thirds (2/3) of the Members of the House
of Representatives and of the Senate voting separately.

Section 3. Any amendment to or revision of this Organic Act shall become effective only when approved
by a majority of the vote cast in a plebiscite called for the purpose, which shall be held not earlier than
sixty (60) days or later than ninety (90) days after the approval of such amendment or revision.

We find no merit in this contention.

In the first place, neither RA No. 9333 nor RA No. 10153 amends RA No. 9054. As an examination of
these laws will show, RA No. 9054 only provides for the schedule of the first ARMM elections and does
not fix the date of the regular elections. A need therefore existed for the Congress to fix the date of the
subsequent ARMM regular elections, which it did by enacting RA No. 9333 and thereafter, RA No. 10153.
Obviously, these subsequent laws - RA No. 9333 and RA No. 10153 - cannot be considered amendments
to RA No. 9054 as they did not change or revise any provision in the latter law; they merely filled in a gap
in RA No. 9054 or supplemented the law by providing the date of the subsequent regular elections.

This view - that Congress thought it best to leave the determination of the date of succeeding ARMM
elections to legislative discretion - finds support in ARMM's recent history.
To recall, RA No. 10153 is not the first law passed that rescheduled the ARMM elections. The First
Organic Act - RA No. 6734 - not only did not fix the date of the subsequent elections; it did not even fix
the specific date of the first ARMM elections,[24] leaving the date to be fixed in another legislative
enactment. Consequently, RA No. 7647,[25] RA No. 8176,[26] RA No. 8746,[27] RA No. 8753,[28] and RA
No. 9012[29] were all enacted by Congress to fix the dates of the ARMM elections. Since these laws did
not change or modify any part or provision of RA No. 6734, they were not amendments to this latter law.
Consequently, there was no need to submit them to any plebiscite for ratification.

The Second Organic Act - RA No. 9054 - which lapsed into law on March 31, 2001, provided that the first
elections would be held on the second Monday of September 2001. Thereafter, Congress passed RA No.
9140[30] to reset the date of the ARMM elections. Significantly, while RA No. 9140 also scheduled the
plebiscite for the ratification of the Second Organic Act (RA No. 9054), the new date of the ARMM
regional elections fixed in RA No. 9140 was not among the provisions ratified in the plebiscite held to
approve RA No. 9054. Thereafter, Congress passed RA No. 9333,[31] which further reset the date of the
ARMM regional elections. Again, this law was not ratified through a plebiscite.

From these legislative actions, we see the clear intention of Congress to treat the laws which fix the date
of the subsequent ARMM elections as separate and distinct from the Organic Acts. Congress only acted
consistently with this intent when it passed RA No. 10153 without requiring compliance with the
amendment prerequisites embodied in Section 1 and Section 3, Article XVII of RA No. 9054.

III. B. Supermajority voting requirement unconstitutional

for giving RA No. 9054 the character of an irrepealable law

Even assuming that RA No. 9333 and RA No. 10153 did in fact amend RA No. 9054, the supermajority
(2/3) voting requirement required under Section 1, Article XVII of RA No. 9054[32] has to be struck down
for giving RA No. 9054 the character of an irrepealable law by requiring more than what the Constitution
demands.

Section 16(2), Article VI of the Constitution provides that a "majority of each House shall constitute a
quorum to do business." In other words, as long as majority of the members of the House of
Representatives or the Senate are present, these bodies have the quorum needed to conduct business
and hold session. Within a quorum, a vote of majority is generally sufficient to enact laws or approve
acts.

In contrast, Section 1, Article XVII of RA No. 9054 requires a vote of no less than two-thirds (2/3) of the
Members of the House of Representatives and of the Senate, voting separately, in order to effectively
amend RA No. 9054. Clearly, this 2/3 voting requirement is higher than what the Constitution requires
for the passage of bills, and served to restrain the plenary powers of Congress to amend, revise or repeal
the laws it had passed. The Court's pronouncement in City of Davao v. GSIS[33] on this subject best
explains the basis and reason for the unconstitutionality:

Moreover, it would be noxious anathema to democratic principles for a legislative body to have the
ability to bind the actions of future legislative body, considering that both assemblies are regarded with
equal footing, exercising as they do the same plenary powers. Perpetual infallibility is not one of the
attributes desired in a legislative body, and a legislature which attempts to forestall future amendments
or repeals of its enactments labors under delusions of omniscience.

xxx

A state legislature has a plenary law-making power over all subjects, whether pertaining to persons or
things, within its territorial jurisdiction, either to introduce new laws or repeal the old, unless prohibited
expressly or by implication by the federal constitution or limited or restrained by its own. It cannot bind
itself or its successors by enacting irrepealable laws except when so restrained. Every legislative body
may modify or abolish the acts passed by itself or its predecessors. This power of repeal may be
exercised at the same session at which the original act was passed; and even while a bill is in its progress
and before it becomes a law. This legislature cannot bind a future legislature to a particular mode of
repeal. It cannot declare in advance the intent of subsequent legislatures or the effect of subsequent
legislation upon existing statutes.[34] (Emphasis ours.)

Thus, while a supermajority is not a total ban against a repeal, it is a limitation in excess of what the
Constitution requires on the passage of bills and is constitutionally obnoxious because it significantly
constricts the future legislators' room for action and flexibility.

III. C. Section 3, Article XVII of RA No. 9054 excessively enlarged

the plebiscite requirement found in Section 18, Article X of the Constitution

The requirements of RA No. 9054 not only required an unwarranted supermajority, but enlarged as well
the plebiscite requirement, as embodied in its Section 3, Article XVII of that Act. As we did on the
supermajority requirement, we find the enlargement of the plebiscite requirement required under
Section 18, Article X of the Constitution to be excessive to point of absurdity and, hence, a violation of
the Constitution.
Section 18, Article X of the Constitution states that the plebiscite is required only for the creation of
autonomous regions and for determining which provinces, cities and geographic areas will be included in
the autonomous regions. While the settled rule is that amendments to the Organic Act have to comply
with the plebiscite requirement in order to become effective,[35] questions on the extent of the matters
requiring ratification may unavoidably arise because of the seemingly general terms of the Constitution
and the obvious absurdity that would result if a plebiscite were to be required for every statutory
amendment.

Section 18, Article X of the Constitution plainly states that "The creation of the autonomous region shall
be effective when approved by the majority of the votes case by the constituent units in a plebiscite
called for the purpose." With these wordings as standard, we interpret the requirement to mean that
only amendments to, or revisions of, the Organic Act constitutionally-essential to the creation of
autonomous regions - i.e., those aspects specifically mentioned in the Constitution which Congress must
provide for in the Organic Act - require ratification through a plebiscite. These amendments to the
Organic Act are those that relate to: (a) the basic structure of the regional government; (b) the region's
judicial system, i.e., the special courts with personal, family, and property law jurisdiction; and, (c) the
grant and extent of the legislative powers constitutionally conceded to the regional government under
Section 20, Article X of the Constitution.[36]

The date of the ARMM elections does not fall under any of the matters that the Constitution specifically
mandated Congress to provide for in the Organic Act. Therefore, even assuming that the supermajority
votes and the plebiscite requirements are valid, any change in the date of elections cannot be construed
as a substantial amendment of the Organic Act that would require compliance with these requirements.

IV. The synchronization issue

As we discussed above, synchronization of national and local elections is a constitutional mandate that
Congress must provide for and this synchronization must include the ARMM elections. On this point, an
existing law in fact already exists - RA No. 7166 - as the forerunner of the current RA No. 10153. RA No.
7166 already provides for the synchronization of local elections with the national and congressional
elections. Thus, what RA No. 10153 provides is an old matter for local governments (with the exception
of barangay and Sanggunian Kabataan elections where the terms are not constitutionally provided) and
is technically a reiteration of what is already reflected in the law, given that regional elections are in
reality local elections by express constitutional recognition.[37]

To achieve synchronization, Congress necessarily has to reconcile the schedule of the ARMM's regular
elections (which should have been held in August 2011 based on RA No. 9333) with the fixed schedule of
the national and local elections (fixed by RA No. 7166 to be held in May 2013).
During the oral arguments, the Court identified the three options open to Congress in order to resolve
this problem. These options are: (1) to allow the elective officials in the ARMM to remain in office in a
hold over capacity, pursuant to Section 7(1), Article VII of RA No. 9054, until those elected in the
synchronized elections assume office;[38] (2) to hold special elections in the ARMM, with the terms of
those elected to expire when those elected in the synchronized elections assume office; or (3) to
authorize the President to appoint OICs, pursuant to Section 3 of RA No. 10153, also until those elected
in the synchronized elections assume office.

As will be abundantly clear in the discussion below, Congress, in choosing to grant the President the
power to appoint OICs, chose the correct option and passed RA No. 10153 as a completely valid law.

V. The Constitutionality of RA No. 10153

A. Basic Underlying Premises

To fully appreciate the available options, certain underlying material premises must be fully understood.
The first is the extent of the powers of Congress to legislate; the second is the constitutional mandate for
the synchronization of elections; and the third is on the concept of autonomy as recognized and
established under the 1987 Constitution.

The grant of legislative power to Congress is broad, general and comprehensive.[39] The legislative body
possesses plenary power for all purposes of civil government.[40] Any power, deemed to be legislative
by usage and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it
elsewhere.[41] Except as limited by the Constitution, either expressly or impliedly, legislative power
embraces all subjects and extends to all matters of general concern or common interest.[42]

The constitutional limitations on legislative power are either express or implied. The express limitations
are generally provided in some provisions of the Declaration of Principles and State Policies (Article 2)
and in the provisions Bill of Rights (Article 3). Other constitutional provisions (such as the initiative and
referendum clause of Article 6, Sections 1 and 32, and the autonomy provisions of Article X) provide
their own express limitations. The implied limitations are found "in the evident purpose which was in
view and the circumstances and historical events which led to the enactment of the particular provision
as a part of organic law."[43]
The constitutional provisions on autonomy - specifically, Sections 15 to 21 of Article X of the Constitution
- constitute express limitations on legislative power as they define autonomy, its requirements and its
parameters, thus limiting what is otherwise the unlimited power of Congress to legislate on the
governance of the autonomous region.

Of particular relevance to the issues of the present case are the limitations posed by the prescribed basic
structure of government - i.e., that the government must have an executive department and a legislative
assembly, both of which must be elective and representative of the constituent political units; national
government, too, must not encroach on the legislative powers granted under Section 20, Article X.
Conversely and as expressly reflected in Section 17, Article X, "all powers and functions not granted by
this Constitution or by law to the autonomous regions shall be vested in the National Government."

The totality of Sections 15 to 21 of Article X should likewise serve as a standard that Congress must
observe in dealing with legislation touching on the affairs of the autonomous regions. The terms of
these sections leave no doubt on what the Constitution intends - the idea of self-rule or self-
government, in particular, the power to legislate on a wide array of social, economic and administrative
matters. But equally clear under these provisions are the permeating principles of national sovereignty
and the territorial integrity of the Republic, as expressed in the above-quoted Section 17 and in Section
15.[44] In other words, the Constitution and the supporting jurisprudence, as they now stand, reject the
notion of imperium et imperio[45] in the relationship between the national and the regional
governments.

In relation with synchronization, both autonomy and the synchronization of national and local elections
are recognized and established constitutional mandates, with one being as compelling as the other. If
their compelling force differs at all, the difference is in their coverage; synchronization operates on and
affects the whole country, while regional autonomy - as the term suggests - directly carries a narrower
regional effect although its national effect cannot be discounted.

These underlying basic concepts characterize the powers and limitations of Congress when it acted on
RA No. 10153. To succinctly describe the legal situation that faced Congress then, its decision to
synchronize the regional elections with the national, congressional and all other local elections (save for
barangay and sangguniang kabataan elections) left it with the problem of how to provide the ARMM
with governance in the intervening period between the expiration of the term of those elected in August
2008 and the assumption to office - twenty-one (21) months away - of those who will win in the
synchronized elections on May 13, 2013.

The problem, in other words, was for interim measures for this period, consistent with the terms of the
Constitution and its established supporting jurisprudence, and with the respect due to the concept of
autonomy. Interim measures, to be sure, is not a strange phenomenon in the Philippine legal landscape.
The Constitution's Transitory Provisions themselves collectively provide measures for transition from the
old constitution to the new[46] and for the introduction of new concepts.[47] As previously mentioned,
the adjustment of elective terms and of elections towards the goal of synchronization first transpired
under the Transitory Provisions. The adjustments, however, failed to look far enough or deeply enough,
particularly into the problems that synchronizing regional autonomous elections would entail; thus, the
present problem is with us today.

The creation of local government units also represents instances when interim measures are required.
In the creation of Quezon del Sur[48] and Dinagat Islands,[49] the creating statutes authorized the
President to appoint an interim governor, vice-governor and members of the sangguniang panlalawigan
although these positions are essentially elective in character; the appointive officials were to serve until
a new set of provincial officials shall have been elected and qualified.[50] A similar authority to appoint
is provided in the transition of a local government from a sub-province to a province.[51]

In all these, the need for interim measures is dictated by necessity; out-of-the-way arrangements and
approaches were adopted or used in order to adjust to the goal or objective in sight in a manner that
does not do violence to the Constitution and to reasonably accepted norms. Under these limitations,
the choice of measures was a question of wisdom left to congressional discretion.

To return to the underlying basic concepts, these concepts shall serve as the guideposts and markers in
our discussion of the options available to Congress to address the problems brought about by the
synchronization of the ARMM elections, properly understood as interim measures that Congress had to
provide. The proper understanding of the options as interim measures assume prime materiality as it is
under these terms that the passage of RA No. 10153 should be measured, i.e., given the constitutional
objective of synchronization that cannot legally be faulted, did Congress gravely abuse its discretion or
violate the Constitution when it addressed through RA No. 10153 the concomitant problems that the
adjustment of elections necessarily brought with it?

B. Holdover Option is Unconstitutional

We rule out the first option - holdover for those who were elected in executive and legislative positions
in the ARMM during the 2008-2011 term - as an option that Congress could have chosen because a
holdover violates Section 8, Article X of the Constitution. This provision states:

Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three consecutive
terms. [emphases ours]
Since elective ARMM officials are local officials, they are covered and bound by the three-year term limit
prescribed by the Constitution; they cannot extend their term through a holdover. As this Court put in
Osmeña v. COMELEC:[52]

It is not competent for the legislature to extend the term of officers by providing that they shall hold
over until their successors are elected and qualified where the constitution has in effect or by clear
implication prescribed the term and when the Constitution fixes the day on which the official term shall
begin, there is no legislative authority to continue the office beyond that period, even though the
successors fail to qualify within the time.

In American Jurisprudence it has been stated as follows:

"It has been broadly stated that the legislature cannot, by an act postponing the election to fill an office
the term of which is limited by the Constitution, extend the term of the incumbent beyond the period as
limited by the Constitution." [Emphasis ours.]

Independently of the Osmeña ruling, the primacy of the Constitution as the supreme law of the land
dictates that where the Constitution has itself made a determination or given its mandate, then the
matters so determined or mandated should be respected until the Constitution itself is changed by
amendment or repeal through the applicable constitutional process. A necessary corollary is that none
of the three branches of government can deviate from the constitutional mandate except only as the
Constitution itself may allow.[53] If at all, Congress may only pass legislation filing in details to fully
operationalize the constitutional command or to implement it by legislation if it is non-self-executing;
this Court, on the other hand, may only interpret the mandate if an interpretation is appropriate and
called for.[54]

In the case of the terms of local officials, their term has been fixed clearly and unequivocally, allowing no
room for any implementing legislation with respect to the fixed term itself and no vagueness that would
allow an interpretation from this Court. Thus, the term of three years for local officials should stay at
three (3) years as fixed by the Constitution and cannot be extended by holdover by Congress.

If it will be claimed that the holdover period is effectively another term mandated by Congress, the net
result is for Congress to create a new term and to appoint the occupant for the new term. This view - like
the extension of the elective term - is constitutionally infirm because Congress cannot do indirectly what
it cannot do directly, i.e., to act in a way that would effectively extend the term of the incumbents.
Indeed, if acts that cannot be legally done directly can be done indirectly, then all laws would be illusory.
[55] Congress cannot also create a new term and effectively appoint the occupant of the position for the
new term. This is effectively an act of appointment by Congress and an unconstitutional intrusion into
the constitutional appointment power of the President.[56] Hence, holdover - whichever way it is
viewed - is a constitutionally infirm option that Congress could not have undertaken.

Jurisprudence, of course, is not without examples of cases where the question of holdover was brought
before, and given the imprimatur of approval by, this Court. The present case though differs significantly
from past cases with contrary rulings, particularly from Sambarani v. COMELEC,[57] Adap v. Comelec,[58]
and Montesclaros v. Comelec,[59] where the Court ruled that the elective officials could hold on to their
positions in a hold over capacity.

All these past cases refer to elective barangay or sangguniang kabataan officials whose terms of office
are not explicitly provided for in the Constitution; the present case, on the other hand, refers to local
elective officials - the ARMM Governor, the ARMM Vice-Governor, and the members of the Regional
Legislative Assembly - whose terms fall within the three-year term limit set by Section 8, Article X of the
Constitution. Because of their constitutionally limited term, Congress cannot legislate an extension
beyond the term for which they were originally elected.

Even assuming that holdover is constitutionally permissible, and there had been statutory basis for it
(namely Section 7, Article VII of RA No. 9054) in the past,[60] we have to remember that the rule of
holdover can only apply as an available option where no express or implied legislative intent to the
contrary exists; it cannot apply where such contrary intent is evident.[61]

Congress, in passing RA No. 10153, made it explicitly clear that it had the intention of suppressing the
holdover rule that prevailed under RA No. 9054 by completely removing this provision. The deletion is a
policy decision that is wholly within the discretion of Congress to make in the exercise of its plenary
legislative powers; this Court cannot pass upon questions of wisdom, justice or expediency of legislation,
[62] except where an attendant unconstitutionality or grave abuse of discretion results.

C. The COMELEC has no authority to order special elections

Another option proposed by the petitioner in G.R. No. 197282 is for this Court to compel COMELEC to
immediately conduct special elections pursuant to Section 5 and 6 of Batas Pambansa Bilang (BP) 881.

The power to fix the date of elections is essentially legislative in nature, as evident from, and exemplified
by, the following provisions of the Constitution:
Section 8, Article VI, applicable to the legislature, provides:

Section 8. Unless otherwise provided by law, the regular election of the Senators and the Members of
the House of Representatives shall be held on the second Monday of May. [Emphasis ours]

Section 4(3), Article VII, with the same tenor but applicable solely to the President and Vice-President,
states:

xxxx

Section 4. xxx Unless otherwise provided by law, the regular election for President and Vice-President
shall be held on the second Monday of May. [Emphasis ours]

while Section 3, Article X, on local government, provides:

Section 3. The Congress shall enact a local government code which shall provide for xxx the
qualifications, election, appointment and removal, term, salaries, powers and functions and duties of
local officials[.] [Emphases ours]

These provisions support the conclusion that no elections may be held on any other date for the
positions of President, Vice President, Members of Congress and local officials, except when so provided
by another Act of Congress, or upon orders of a body or officer to whom Congress may have delegated
either the power or the authority to ascertain or fill in the details in the execution of that power.[63]

Notably, Congress has acted on the ARMM elections by postponing the scheduled August 2011 elections
and setting another date - May 13, 2011 - for regional elections synchronized with the presidential,
congressional and other local elections. By so doing, Congress itself has made a policy decision in the
exercise of its legislative wisdom that it shall not call special elections as an adjustment measure in
synchronizing the ARMM elections with the other elections.

After Congress has so acted, neither the Executive nor the Judiciary can act to the contrary by ordering
special elections instead at the call of the COMELEC. This Court, particularly, cannot make this call
without thereby supplanting the legislative decision and effectively legislating. To be sure, the Court is
not without the power to declare an act of Congress null and void for being unconstitutional or for
having been exercised in grave abuse of discretion.[64] But our power rests on very narrow ground and
is merely to annul a contravening act of Congress; it is not to supplant the decision of Congress nor to
mandate what Congress itself should have done in the exercise of its legislative powers. Thus, contrary
to what the petition in G.R. No. 197282 urges, we cannot compel COMELEC to call for special elections.

Furthermore, we have to bear in mind that the constitutional power of the COMELEC, in contrast with
the power of Congress to call for, and to set the date of, elections, is limited to enforcing and
administering all laws and regulations relative to the conduct of an election.[65] Statutorily, COMELEC
has no power to call for the holding of special elections unless pursuant to a specific statutory grant.
True, Congress did grant, via Sections 5 and 6 of BP 881, COMELEC with the power to postpone elections
to another date. However, this power is limited to, and can only be exercised within, the specific terms
and circumstances provided for in the law. We quote:

Section 5. Postponement of election. - When for any serious cause such as violence, terrorism, loss or
destruction of election paraphernalia or records, force majeure, and other analogous causes of such a
nature that the holding of a free, orderly and honest election should become impossible in any political
subdivision, the Commission, motu proprio or upon a verified petition by any interested party, and after
due notice and hearing, whereby all interested parties are afforded equal opportunity to be heard, shall
postpone the election therein to a date which should be reasonably close to the date of the election not
held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of
the cause for such postponement or suspension of the election or failure to elect.

Section 6. Failure of election. - If, on account of force majeure, violence, terrorism, fraud, or other
analogous causes the election in any polling place has not been held on the date fixed, or had been
suspended before the hour fixed by law for the closing of the voting, or after the voting and during the
preparation and the transmission of the election returns or in the custody or canvass thereof, such
election results in a failure to elect, and in any of such cases the failure or suspension of election would
affect the result of the election, the Commission shall, on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or continuation of the election not
held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the
election not held, suspended or which resulted in a failure to elect but not later than thirty days after the
cessation of the cause of such postponement or suspension of the election or failure to elect. [Emphasis
ours]

A close reading of Section 5 of BP 881 reveals that it is meant to address instances where elections have
already been scheduled to take place but have to be postponed because of (a) violence, (b) terrorism, (c)
loss or destruction of election paraphernalia or records, (d) force majeure, and (e) other analogous
causes of such a nature that the holding of a free, orderly and honest election should become impossible
in any political subdivision. Under the principle of ejusdem generis, the term "analogous causes" will be
restricted to those unforeseen or unexpected events that prevent the holding of the scheduled elections.
These "analogous causes" are further defined by the phrase "of such nature that the holding of a free,
orderly and honest election should become impossible."

Similarly, Section 6 of BP 881 applies only to those situations where elections have already been
scheduled but do not take place because of (a) force majeure, (b) violence, (c) terrorism, (d) fraud, or (e)
other analogous causes the election in any polling place has not been held on the date fixed, or had
been suspended before the hour fixed by law for the closing of the voting, or after the voting and during
the preparation and the transmission of the election returns or in the custody or canvass thereof, such
election results in a failure to elect. As in Section 5 of BP 881, Section 6 addresses instances where the
elections do not occur or had to be suspended because of unexpected and unforeseen circumstances.

In the present case, the postponement of the ARMM elections is by law - i.e., by congressional policy -
and is pursuant to the constitutional mandate of synchronization of national and local elections. By no
stretch of the imagination can these reasons be given the same character as the circumstances
contemplated by Section 5 or Section 6 of BP 881, which all pertain to extralegal causes that obstruct the
holding of elections. Courts, to be sure, cannot enlarge the scope of a statute under the guise of
interpretation, nor include situations not provided nor intended by the lawmakers.[66] Clearly, neither
Section 5 nor Section 6 of BP 881 can apply to the present case and this Court has absolutely no legal
basis to compel the COMELEC to hold special elections.

D. The Court has no power to shorten

the terms of elective officials

Even assuming that it is legally permissible for the Court to compel the COMELEC to hold special
elections, no legal basis likewise exists to rule that the newly elected ARMM officials shall hold office
only until the ARMM officials elected in the synchronized elections shall have assumed office.

In the first place, the Court is not empowered to adjust the terms of elective officials. Based on the
Constitution, the power to fix the term of office of elective officials, which can be exercised only in the
case of barangay officials,[67] is specifically given to Congress. Even Congress itself may be denied such
power, as shown when the Constitution shortened the terms of twelve Senators obtaining the least
votes,[68] and extended the terms of the President and the Vice-President[69] in order to synchronize
elections; Congress was not granted this same power. The settled rule is that terms fixed by the
Constitution cannot be changed by mere statute.[70] More particularly, not even Congress and certainly
not this Court, has the authority to fix the terms of elective local officials in the ARMM for less, or more,
than the constitutionally mandated three years[71] as this tinkering would directly contravene Section 8,
Article X of the Constitution as we ruled in Osmena.
Thus, in the same way that the term of elective ARMM officials cannot be extended through a holdover,
the term cannot be shortened by putting an expiration date earlier than the three (3) years that the
Constitution itself commands. This is what will happen - a term of less than two years - if a call for
special elections shall prevail. In sum, while synchronization is achieved, the result is at the cost of a
violation of an express provision of the Constitution.

Neither we nor Congress can opt to shorten the tenure of those officials to be elected in the ARMM
elections instead of acting on their term (where the "term" means the time during which the officer may
claim to hold office as of right and fixes the interval after which the several incumbents shall succeed one
another, while the "tenure" representsthe term during which the incumbent actually holds the office).
[72] As with the fixing of the elective term, neither Congress nor the Court has any legal basis to shorten
the tenure of elective ARMM officials. They would commit an unconstitutional act and gravely abuse
their discretion if they do so.

E. The President's Power to Appoint OICs

The above considerations leave only Congress' chosen interim measure - RA No. 10153 and the
appointment by the President of OICs to govern the ARMM during the pre-synchronization period
pursuant to Sections 3, 4 and 5 of this law - as the only measure that Congress can make. This choice
itself, however, should be examined for any attendant constitutional infirmity.

At the outset, the power to appoint is essentially executive in nature, and the limitations on or
qualifications to the exercise of this power should be strictly construed; these limitations or
qualifications must be clearly stated in order to be recognized.[73] The appointing power is embodied in
Section 16, Article VII of the Constitution, which states:

Section 16. The President shall nominate and, with the consent of the Commission on Appointments,
appoint the heads of the executive departments, ambassadors, other public ministers and consuls or
officers of the armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or
boards. [emphasis ours]

This provision classifies into four groups the officers that the President can appoint. These are:
First, the heads of the executive departments; ambassadors; other public ministers and consuls; officers
of the Armed Forces of the Philippines, from the rank of colonel or naval captain; and other officers
whose appointments are vested in the President in this Constitution;

Second, all other officers of the government whose appointments are not otherwise provided for by law;

Third, those whom the President may be authorized by law to appoint; and

Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone.
[74]

Since the President's authority to appoint OICs emanates from RA No. 10153, it falls under the third
group of officials that the President can appoint pursuant to Section 16, Article VII of the Constitution.
Thus, the assailed law facially rests on clear constitutional basis.

If at all, the gravest challenge posed by the petitions to the authority to appoint OICs under Section 3 of
RA No. 10153 is the assertion that the Constitution requires that the ARMM executive and legislative
officials to be "elective and representative of the constituent political units." This requirement indeed is
an express limitation whose non-observance in the assailed law leaves the appointment of OICs
constitutionally defective.

After fully examining the issue, we hold that this alleged constitutional problem is more apparent than
real and becomes very real only if RA No. 10153 were to be mistakenly read as a law that changes the
elective and representative character of ARMM positions. RA No. 10153, however, does not in any way
amend what the organic law of the ARMM (RA No. 9054) sets outs in terms of structure of governance.
What RA No. 10153 in fact only does is to "appoint officers-in-charge for the Office of the Regional
Governor, Regional Vice Governor and Members of the Regional Legislative Assembly who shall perform
the functions pertaining to the said offices until the officials duly elected in the May 2013 elections shall
have qualified and assumed office." This power is far different from appointing elective ARMM officials
for the abbreviated term ending on the assumption to office of the officials elected in the May 2013
elections.
As we have already established in our discussion of the supermajority and plebiscite requirements, the
legal reality is that RA No. 10153 did not amend RA No. 9054. RA No. 10153, in fact, provides only for
synchronization of elections and for the interim measures that must in the meanwhile prevail. And this
is how RA No. 10153 should be read - in the manner it was written and based on its unambiguous facial
terms.[75] Aside from its order for synchronization, it is purely and simply an interim measure
responding to the adjustments that the synchronization requires.

Thus, the appropriate question to ask is whether the interim measure is an unreasonable move for
Congress to adopt, given the legal situation that the synchronization unavoidably brought with it. In
more concrete terms and based on the above considerations, given the plain unconstitutionality of
providing for a holdover and the unavailability of constitutional possibilities for lengthening or
shortening the term of the elected ARMM officials, is the choice of the President's power to appoint - for
a fixed and specific period as an interim measure, and as allowed under Section 16, Article VII of the
Constitution - an unconstitutional or unreasonable choice for Congress to make?

Admittedly, the grant of the power to the President under other situations or where the power of
appointment would extend beyond the adjustment period for synchronization would be to foster a
government that is not "democratic and republican." For then, the people's right to choose the leaders
to govern them may be said to be systemically withdrawn to the point of fostering an undemocratic
regime. This is the grant that would frontally breach the "elective and representative" governance
requirement of Section 18, Article X of the Constitution.

But this conclusion would not be true under the very limited circumstances contemplated in RA No.
10153 where the period is fixed and, more importantly, the terms of governance - both under Section
18, Article X of the Constitution and RA No. 9054 - will not systemically be touched nor affected at all. To
repeat what has previously been said, RA No. 9054 will govern unchanged and continuously, with full
effect in accordance with the Constitution, save only for the interim and temporary measures that
synchronization of elections requires.

Viewed from another perspective, synchronization will temporarily disrupt the election process in a local
community, the ARMM, as well as the community's choice of leaders, but this will take place under a
situation of necessity and as an interim measure in the manner that interim measures have been
adopted and used in the creation of local government units[76] and the adjustments of sub-provinces to
the status of provinces.[77] These measures, too, are used in light of the wider national demand for the
synchronization of elections (considered vis-� -vis the regional interests involved). The adoption of
these measures, in other words, is no different from the exercise by Congress of the inherent police
power of the State, where one of the essential tests is the reasonableness of the interim measure taken
in light of the given circumstances.
Furthermore, the "representative" character of the chosen leaders need not necessarily be affected by
the appointment of OICs as this requirement is really a function of the appointment process; only the
"elective" aspect shall be supplanted by the appointment of OICs. In this regard, RA No. 10153
significantly seeks to address concerns arising from the appointments by providing, under Sections 3, 4
and 5 of the assailed law, concrete terms in the Appointment of OIC, the Manner and Procedure of
Appointing OICs, and their Qualifications.

Based on these considerations, we hold that RA No. 10153 - viewed in its proper context - is a law that is
not violative of the Constitution (specifically, its autonomy provisions), and one that is reasonable as well
under the circumstances.

VI. Other Constitutional Concerns

Outside of the above concerns, it has been argued during the oral arguments that upholding the
constitutionality of RA No. 10153 would set a dangerous precedent of giving the President the power to
cancel elections anywhere in the country, thus allowing him to replace elective officials with OICs.

This claim apparently misunderstands that an across-the-board cancellation of elections is a matter for
Congress, not for the President, to address. It is a power that falls within the powers of Congress in the
exercise of its legislative powers. Even Congress, as discussed above, is limited in what it can legislatively
undertake with respect to elections.

If RA No. 10153 cancelled the regular August 2011 elections, it was for a very specific and limited
purpose - the synchronization of elections. It was a temporary means to a lasting end - the
synchronization of elections. Thus, RA No. 10153 and the support that the Court gives this legislation are
likewise clear and specific, and cannot be transferred or applied to any other cause for the cancellation
of elections. Any other localized cancellation of elections and call for special elections can occur only in
accordance with the power already delegated by Congress to the COMELEC, as above discussed.

Given that the incumbent ARMM elective officials cannot continue to act in a holdover capacity upon the
expiration of their terms, and this Court cannot compel the COMELEC to conduct special elections, the
Court now has to deal with the dilemma of a vacuum in governance in the ARMM.

To emphasize the dire situation a vacuum brings, it should not be forgotten that a period of 21 months -
or close to 2 years - intervenes from the time that the incumbent ARMM elective officials' terms expired
and the time the new ARMM elective officials begin their terms in 2013. As the lessons of our Mindanao
history - past and current - teach us, many developments, some of them critical and adverse, can
transpire in the country's Muslim areas in this span of time in the way they transpired in the past.[78]
Thus, it would be reckless to assume that the presence of an acting ARMM Governor, an acting Vice-
Governor and a fully functioning Regional Legislative Assembly can be done away with even temporarily.
To our mind, the appointment of OICs under the present circumstances is an absolute necessity.

Significantly, the grant to the President of the power to appoint OICs to undertake the functions of the
elective members of the Regional Legislative Assembly is neither novel nor innovative. We hark back to
our earlier pronouncement in Menzon v. Petilla, etc., et al.:[79]

It may be noted that under Commonwealth Act No. 588 and the Revised Administrative Code of 1987,
the President is empowered to make temporary appointments in certain public offices, in case of any
vacancy that may occur. Albeit both laws deal only with the filling of vacancies in appointive positions.
However, in the absence of any contrary provision in the Local Government Code and in the best interest
of public service, we see no cogent reason why the procedure thus outlined by the two laws may not be
similarly applied in the present case. The respondents contend that the provincial board is the correct
appointing power. This argument has no merit. As between the President who has supervision over local
governments as provided by law and the members of the board who are junior to the vice-governor, we
have no problem ruling in favor of the President, until the law provides otherwise.

A vacancy creates an anomalous situation and finds no approbation under the law for it deprives the
constituents of their right of representation and governance in their own local government.

In a republican form of government, the majority rules through their chosen few, and if one of them is
incapacitated or absent, etc., the management of governmental affairs is, to that extent, may be
hampered. Necessarily, there will be a consequent delay in the delivery of basic services to the people of
Leyte if the Governor or the Vice-Governor is missing.[80](Emphasis ours.)

As in Menzon, leaving the positions of ARMM Governor, Vice Governor, and members of the Regional
Legislative Assembly vacant for 21 months, or almost 2 years, would clearly cause disruptions and delays
in the delivery of basic services to the people, in the proper management of the affairs of the regional
government, and in responding to critical developments that may arise. When viewed in this context,
allowing the President in the exercise of his constitutionally-recognized appointment power to appoint
OICs is, in our judgment, a reasonable measure to take.

B. Autonomy in the ARMM

It is further argued that while synchronization may be constitutionally mandated, it cannot be used to
defeat or to impede the autonomy that the Constitution granted to the ARMM. Phrased in this manner,
one would presume that there exists a conflict between two recognized Constitutional mandates -
synchronization and regional autonomy - such that it is necessary to choose one over the other.

We find this to be an erroneous approach that violates a basic principle in constitutional construction -
ut magis valeat quam pereat: that the Constitution is to be interpreted as a whole,[81] and one mandate
should not be given importance over the other except where the primacy of one over the other is clear.
[82] We refer to the Court's declaration in Ang-Angco v. Castillo, et al.,[83] thus:

A provision of the constitution should not be construed in isolation from the rest. Rather, the
constitution must be interpreted as a whole, and apparently, conflicting provisions should be reconciled
and harmonized in a manner that may give to all of them full force and effect. [Emphasis supplied.]

Synchronization is an interest that is as constitutionally entrenched as regional autonomy. They are

interests that this Court should reconcile and give effect to, in the way that Congress did in RA No. 10153
which provides the measure to transit to synchronized regional elections with the least disturbance on
the interests that must be respected. Particularly, regional autonomy will be respected instead of being
sidelined, as the law does not in any way alter, change or modify its governing features, except in a very
temporary manner and only as necessitated by the attendant circumstances.

Elsewhere, it has also been argued that the ARMM elections should not be synchronized with the
national and local elections in order to maintain the autonomy of the ARMM and insulate its own
electoral processes from the rough and tumble of nationwide and local elections. This argument leaves
us far from convinced of its merits.

As heretofore mentioned and discussed, while autonomous regions are granted political autonomy, the
framers of the Constitution never equated autonomy with independence. The ARMM as a regional entity
thus continues to operate within the larger framework of the State and is still subject to the national
policies set by the national government, save only for those specific areas reserved by the Constitution
for regional autonomous determination. As reflected during the constitutional deliberations of the
provisions on autonomous regions:

Mr. Bennagen. xxx We do not see here a complete separation from the central government, but rather
an efficient working relationship between the autonomous region and the central government. We see
this as an effective partnership, not a separation.
Mr. Romulo. Therefore, complete autonomy is not really thought of as complete independence.

Mr. Ople. We define it as a measure of self-government within the larger political framework of the
nation.[84] [Emphasis supplied.]

This exchange of course is fully and expressly reflected in the above-quoted Section 17, Article X of the
Constitution, and by the express reservation under Section 1 of the same Article that autonomy shall be
"within the framework of this Constitution and the national sovereignty as well as the territorial integrity
of the Republic of the Philippines."

Interestingly, the framers of the Constitution initially proposed to remove Section 17 of Article X,
believing it to be unnecessary in light of the enumeration of powers granted to autonomous regions in
Section 20, Article X of the Constitution. Upon further reflection, the framers decided to reinstate the
provision in order to "make it clear, once and for all, that these are the limits of the powers of the
autonomous government. Those not enumerated are actually to be exercised by the national
government[.]"[85] Of note is the Court's pronouncement in Pimentel, Jr. v. Hon. Aguirre[86] which we
quote:

Under the Philippine concept of local autonomy, the national government has not completely
relinquished all its powers over local governments, including autonomous regions. Only administrative
powers over local affairs are delegated to political subdivisions. The purpose of the delegation is to make
governance more directly responsive and effective at the local levels. In turn, economic, political and
social development at the smaller political units are expected to propel social and economic growth and
development. But to enable the country to develop as a whole, the programs and policies effected
locally must be integrated and coordinated towards a common national goal. Thus, policy-setting for the
entire country still lies in the President and Congress. [Emphasis ours.]

In other words, the autonomy granted to the ARMM cannot be invoked to defeat national policies and
concerns. Since the synchronization of elections is not just a regional concern but a national one, the
ARMM is subject to it; the regional autonomy granted to the ARMM cannot be used to exempt the
region from having to act in accordance with a national policy mandated by no less than the
Constitution.

Conclusion

Congress acted within its powers and pursuant to a constitutional mandate - the synchronization of
national and local elections - when it enacted RA No. 10153. This Court cannot question the manner by
which Congress undertook this task; the Judiciary does not and cannot pass upon questions of wisdom,
justice or expediency of legislation.[87] As judges, we can only interpret and apply the law and, despite
our doubts about its wisdom, cannot repeal or amend it.[88]

Nor can the Court presume to dictate the means by which Congress should address what is essentially a
legislative problem. It is not within the Court's power to enlarge or abridge laws; otherwise, the Court
will be guilty of usurping the exclusive prerogative of Congress.[89] The petitioners, in asking this Court
to compel COMELEC to hold special elections despite its lack of authority to do so, are essentially asking
us to venture into the realm of judicial legislation, which is abhorrent to one of the most basic principles
of a republican and democratic government - the separation of powers.

The petitioners allege, too, that we should act because Congress acted with grave abuse of discretion in
enacting RA No. 10153. Grave abuse of discretion is such capricious and whimsical exercise of judgment
that is patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform a
duty enjoined by law or to act at all in contemplation of the law as where the power is exercised in an
arbitrary and despotic manner by reason of passion and hostility.[90]

We find that Congress, in passing RA No. 10153, acted strictly within its constitutional mandate. Given an
array of choices, it acted within due constitutional bounds and with marked reasonableness in light of
the necessary adjustments that synchronization demands. Congress, therefore, cannot be accused of any
evasion of a positive duty or of a refusal to perform its duty. We thus find no reason to accord merit to
the petitioners' claims of grave abuse of discretion.

On the general claim that RA No. 10153 is unconstitutional, we can only reiterate the established rule
that every statute is presumed valid.[91] Congress, thus, has in its favor the presumption of
constitutionality of its acts, and the party challenging the validity of a statute has the onerous task of
rebutting this presumption.[92] Any reasonable doubt about the validity of the law should be resolved in
favor of its constitutionality.[93] As this Court declared in Garcia v. Executive Secretary:[94]

The policy of the courts is to avoid ruling on constitutional questions and to presume that the acts of the
political departments are valid in the absence of a clear and unmistakable showing to the contrary. To
doubt is to sustain. This presumption is based on the doctrine of separation of powers which enjoins
upon each department a becoming respect for the acts of the other departments. The theory is that as
the joint act of Congress and the President of the Philippines, a law has been carefully studied and
determined to be in accordance with the fundamental law before it was finally enacted.[95] [Emphasis
ours.]
Given the failure of the petitioners to rebut the presumption of constitutionality in favor of RA No.
10153, we must support and confirm its validity.

WHEREFORE, premises considered, we DISMISS the consolidated petitions assailing the validity of RA No.
10153 for lack of merit, and UPHOLD the constitutionality of this law. We likewise LIFT the temporary
restraining order we issued in our Resolution of September 13, 2011. No costs.

SO ORDERED.

Peralta, Bersamin, Del Castillo, Villarama, Jr., Mendoza, Reyes, and Perlas-Bernabe, JJ., concur.

Corona, C.J., join the dissent of J. Velasco with respect to the appointment of the OIC Governor and vote
to hold the law as unconstitutional.

Carpio, J., see dissenting opinion.

Velasco, Jr., J., join the dissent of J. Carpio but a disagree on the power of the Pres.to appoint OIC-
Governor of ARMM. (pls. see Dissenting Opinion.)

Leonardo-De Castro, and Abad, JJ., join the dissent of J. Velasco.

Perez, and Sereno, JJ., join the dissent of J. Carpio.

Endnotes:

[1] Entitled "An act fixing the date of the plebiscite for the approval of the amendments to Republic Act
No. 6734 and setting the date of the regular elections for elective officials of the Autonomous Region in
Muslim Mindanao on the last Monday of November 2001, amending for the purpose Republic Act No.
9054, entitled "An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim
Mindanao, amending for the purpose Republic Act No. 6734, entitled `An Act Providing for the
Autonomous Region in Muslim Mindanao,' as amended," and for other purposes.

[2] Entitled "An Act amending fixing the Date or Regular elections for Elective Officials of the
Autonomous Region in Muslim Mindanao pursuant to Republic Act No. 9054, entitled "An Act to
Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, amending for
the purpose Republic Act No. 6734, entitled `An Act Providing for an Organic Act for the Autonomous
Region in Muslim Mindanao, as amended"

[3] Filed by petitioners Datu Michael Abas Kida, in his personal capacity, and in representation of
Maguindanao Federation of Autonomous Irrigators Association, Inc., Hadji Muhmina Usman, John
Anthony L. Lim, Jamilon T. Odin, Asrin Timbol Jaiyari, Mujib M. Kalang, Alih Al-Saidi J. Sapi-e, Kessar
Damsie Abdil, and Bassam Aluh Saupi.

[4] Petition for Prohibition with Very Urgent Prayer for the Issuance of a Writ of Preliminary Injunction
and/or Temporary Restraining Order dated April 11, 2011 was filed against Sixto Brillantes, as
Chairperson of COMELEC, to challenge the effectivity of RA No. 9333 for not having been submitted to a
plebiscite. Since RA No. 9333 is inoperative, any other law seeking to amend it is also null and void.

[5] With Prayer for the Issuance of a Temporary Restraining Order and/or Writs of Preliminary Prohibitive
and Mandatory Injunction dated June 30, 2011.

[6] With Extremely Urgent Application for the Issuance of a Status Quo Order and Writ of Preliminary
Mandatory Injunction dated July 1, 2011.

[7] With Prayer for the issuance of a Temporary Restraining Order dated July 12, 2011.

[8] With Injunction and Preliminary Injunction with prayer for temporary restraining order dated July 11,
2011.

[9] With Prayer for Temporary Restraining Order and the Issuance of Writs of Preliminary Injunction,
Both Prohibitory and Mandatory dated July 1, 2011.

[10] Section 1. The first elections of Members of the Congress under this Constitution shall be held on
the second Monday of May, 1987.

The first local elections shall be held on a date to be determined by the President, which may be
simultaneous with the election of the Members of the Congress. It shall include the election of all
Members of the city or municipal councils in the Metropolitan Manila area.

Section 2. The Senators, Members of the House of Representatives, and the local officials first elected
under this Constitution shall serve until noon of June 30, 1992.
Of the Senators elected in the election in 1992, the first twelve obtaining the highest number of votes
shall serve for six years and the remaining twelve for three years.

xxx

Section 5. The six-year term of the incumbent President and Vice President elected in the February 7,
1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992.

The first regular elections for President and Vice-President under this Constitution shall be held on the
second Monday of May, 1992. [emphasis ours]

[11] To illustrate, while Section 8, Article X of the Constitution fixes the term of office of elective local
officials at three years, under the above-quoted provisions, the terms of the incumbent local officials
who were elected in January 1988, which should have expired on February 2, 1991, were fixed to expire
at noon of June 30, 1992. In the same vein, the terms of the incumbent President and Vice President
who were elected in February 1986 were extended to noon of June 30, 1992. On the other hand, in
order to synchronize the elections of the Senators, who have six-year terms, the twelve Senators who
obtained the lowest votes during the 1992 elections were made to serve only half the time of their
terms.

[12] Joaquin Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary (1996
ed.), p. 1199, citing Records of the Constitutional Commission, Vol. V, p. 429-4.

[13] MR. MAAMBONG. For purposes of identification, I will now read a section which we will temporarily
indicate as Section 14. It reads: "THE SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES AND
THE LOCAL OFFICIALS ELECTED IN THE FIRST ELECTION SHALL SERVE FOR FIVE YEARS, TO EXPIRE AT
NOON OF JUNE 1992."

This was presented by Commissioner Davide, so may we ask that Commissioner Davide be recognized.

THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner Davide is recognized.

MR. DAVIDE. Before going to the proposed amendment, I would only state that in view of the action
taken by the Commission on Section 2 earlier, I am formulating a new proposal. It will read as follows:
"THE SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES AND THE LOCAL OFFICIALS FIRST
ELECTED UNDER THIS CONSTITUTION SHALL SERVE UNTIL NOON OF JUNE 30, 1992."

I proposed this because of the proposed section of the Article on Transitory Provisions giving a term to
the incumbent President and Vice-President until 1992. Necessarily then, since the term provided by the
Commission for Members of the Lower House and for local officials is three years, if there will be an
election in 1987, the next election for said officers will be in 1990, and it would be very close to 1992.
We could never attain, subsequently, any synchronization of election which is once every three years.

So under my proposal we will be able to begin actual synchronization in 1992, and consequently, we
should not have a local election or an election for Members of the Lower House in 1990 for them to be
able to complete their term of three years each. And if we also stagger the Senate, upon the first
election it will result in an election in 1993 for the Senate alone, and there will be an election for 12
Senators in 1990. But for the remaining 12 who will be elected in 1987, if their term is for six years, their
election will be in 1993. So, consequently we will have elections in 1990, in 1992 and in 1993. The later
election will be limited to only 12 Senators and of course to local officials and the Members of the Lower
House. But, definitely, thereafter we can never have an election once every three years, therefore
defeating the very purpose of the Commission when we adopted the term of six years for the President
and another six years for the Senators with the possibility of staggering with 12 to serve for six years and
12 for three years insofar as the first Senators are concerned. And so my proposal is the only way to
effect the first synchronized election which would mean, necessarily, a bonus of two years to the
Members of the Lower House and a bonus of two years to the local elective officials.

THE PRESIDING OFFICER (Mr. Rodrigo). What does the committee say?

MR. DE CASTRO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner de Castro is recognized.

MR. DE CASTRO. Thank you.

During the discussion on the legislative and the synchronization of elections, I was the one who
proposed that in order to synchronize the elections every three years, which the body approved -- the
first national and local officials to be elected in 1987 shall continue in office for five years, the same thing
the Honorable Davide is now proposing. That means they will all serve until 1992, assuming that the
term of the President will be for six years and continue beginning in 1986. So from 1992, we will again
have national, local and presidential elections. This time, in 1992, the President shall have a term until
1998 and the first twelve Senators will serve until 1998, while the next 12 shall serve until 1995, and
then the local officials elected in 1992 will serve until 1995. From then on, we shall have an election
every three years.

So, I will say that the proposition of Commissioner Davide is in order, if we have to synchronize our
elections every three years which was already approved by the body.

Thank you, Mr. Presiding Officer.

xxx xxx xxx

MR. GUINGONA. What will be synchronized, therefore, is the election of the incumbent President and
Vice-President in 1992.

MR. DAVIDE. Yes.

MR. GUINGONA. Not the reverse. Will the committee not synchronize the election of the Senators and
local officials with the election of the President?

MR. DAVIDE. It works both ways, Mr. Presiding Officer. The attempt here is on the assumption that the
provision of the Transitory Provisions on the term of the incumbent President and Vice-President would
really end in 1992.

MR. GUINGONA. Yes.

MR. DAVIDE. In other words, there will be a single election in 1992 for all, from the President up to the
municipal officials. [emphasis ours] (V Record of the Constitutional Commission, pp. 429-431; October 3,
1986)

[14] G.R. Nos. 100318, 100308, 100417 and 100420, July 30, 1991, 199 SCRA 750, 758.
[15] J.M. Tuason & Co., Inc. v. Land Tenure Administration, G.R. No. 21064, February 18, 1970, 31 SCRA
413; Ordillo v. Commission on Elections, 192 SCRA 100 (1990).

[16] 271 SCRA 633, 668 (1997); Occena v. Commission on Elections, G.R. No. 52265, January 28, 1980, 95
SCRA 755.

[17] Webster's Third New International Dictionary Unabridged, p.1327 (1993).

[18] Section 26(2) No bill passed by either House shall become a law unless it has passed three readings
on separate days, and printed copies thereof in its final form have been distributed to its Members three
days before its passage, except when the President certifies to the necessity of its immediate enactment
to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be
allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in
the Journal.

[19] G. R. No. 115455, August 25, 1994, 235 SCRA 630.

[20] A copy of the letter that the President wrote to Honorable Feliciano Belmonte, Jr. as Speaker of the
House of Representatives dated March 4, 2011 is reproduced below:

OFFICE OF THE PRESIDENT

of the Philippines

Malacañang

14 March 2011

HON. FELICIANO R. BELMONTE, JR.

Speaker

House of Representatives

Quezon City

Dear Speaker Belmonte:

Pursuant to the provisions of Article VI, Section 26 (2) of the 1987 Constitution, I hereby certify to the
necessity of the immediate enactment of House Bill No. 4146, entitled:

"AN ACT PROVIDING FOR THE SYNCHRONIZATION OF THE ELECTIONS AND THE TERM OF OFFICE OF THE
ELECTIVE OFFICIALS OF THE AUTONOMOUS REGION IN MUSLIM MINDANAO (ARMM) WITH THOSE OF
THE NATIONAL AND OTHER LOCAL OFFICIALS, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 9333,
ENTITLED `AN ACT FIXING THE DATE FOR REGULAR ELECTIONS FOR ELECTIVE OFFICIALS OF THE
AUTONOMOUS REGION IN MUSLIM MINDANAO', AND FOR OTHER PURPOSES"

to address the urgent need to protect and strengthen ARMM's autonomy by synchronizing its elections
with the regular elections of national and other local officials, to ensure that the on-going peace talks in
the region will not be hindered, and to provide a mechanism to institutionalize electoral reforms in the
interim, all for the development, peace and security of the region.

Best wishes.

Very truly yours,

(Sgd.) BENIGNO SIMEON C. AQUINO III

cc: HON. JUAN PONCE ENRILE

Senate President

Philippine Senate

Pasay City

Taken from: http://www.congress.gov.ph/download/congrec/15th/1st/15C_1RS-64b-031611.pdf. Last

accessed on September 26, 2011.

[21] See Gutierrez v. House of Representatives, G.R. No. 193459, February 15, 2011.

[22] Tolentino v. Secretary of Finance, G.R. No. 115455, October 30, 1995.

[23] Tolentino, id., citing 1 J. G. Sutherland, Statutes and Statutory Construction §10.04, p. 282 (1972).
[24] Section 7, Article XIX of RA No. 6734 states: "The first regular elections of the Regional Governor,
Vice-Governor and Members of the Regional Assembly under this Organic Act shall be held not earlier
than sixty (60) days or later than ninety (90) days after the ratification of this Act. The Commission on
Elections shall promulgate such rules and regulations as may be necessary for the conduct of said
election."

[25] Entitled "An Act Providing for the Date of Regular Elections for Regional Governor, Regional Vice-
Governor and Members of the Regional Legislative Assembly for the Autonomous Region in Muslim
Mindanao and for other purposes," which fixed the date of the ARMM elections on the second Monday
after the Muslim month of Ramadhan.

[26] Entitled "An Act Changing the Date of Elections for the Elective Officials of the Autonomous Region
for Muslim Mindanao, Amending for the Purpose Section One of Republic Act Numbered Seventy-Six
Hundred and Forty-Seven Entitled `An Act Providing for the Date of the Regular Elections for Regional
Governor, Regional Vice-Governor and Members of the Regional Legislative Assembly for the
Autonomous Region in Muslim Mindanao and for other purposes", which changed the date of the
ARMM elections to the second Monday of March, 1993 and every three (3) years thereafter.

[27] Entitled "An Act Providing for the Date of the Regular Elections of Regional Governor, Regional Vice-
Governor and Members of the Regional Legislative Assembly of the Autonomous Region in Muslim
Mindanao (ARMM) Further Amending for the Purpose Republic Act No. 7647 entitled `An Act Providing
for the Date of Regular Elections for Regional Governor, Regional Vice-Governor and Members of the
Regional Legislative Assembly for the Autonomous Region in Muslim Mindanao and for other purposes,'
As Amended, and for other purposes", which moved the regional elections to the second Monday of
September and every three (3) years thereafter.

[28] Entitled "An Act Resetting the Regular Elections for the Elective Officials of the Autonomous Region
in Muslim Mindanao Provided for Under Republic Act No. 8746 and for other purposes", which reset the
regional elections, scheduled on September 13, 1999, to the second Monday of September 2000.

[29] Entitled "An Act Resetting the Regular Elections for Elective Officials of the Autonomous Region in
Muslim Mindanao to the Second Monday of September 2001, Amending for the Purpose Republic Act
No. 8953", which reset the May 2001 elections in ARMM to September 2001.

[30] Entitled "An Act Fixing the Date of the Plebiscite for the Approval of the Amendments to Republic
Act No. 6734 and setting the date of the regular elections for elective officials of the Autonomous Region
in Muslim Mindanao on the Last Monday of November 2001, Amending for the Purpose Republic Act
No. 9054, Entitled "An Act to Strengthen and Expand the Organic Act for the Autonomous Region in
Muslim Mindanao, Amending for the Purpose Republic Act No. 6734, Entitled `An Act Providing for the
Autonomous Region in Muslim Mindanao,' as amended," and For Other Purposes."

[31] Entitled "An Act Fixing the Date of Regular Elections for Elective Officials of the Autonomous Region
in Muslim Mindanao Pursuant to Republic Act no. 9054, Entitled "An Act to Strengthen and Expand the
Organic Act for the Autonomous Region in Muslim Mindanao, Amending for the Purpose Republic Act
No. 6734, Entitled `An Act Providing for an Organic Act for the Autonomous Region in Muslim
Mindanao', as Amended," which rescheduled the ARMM regional elections scheduled for the last
Monday of November 2004 to "the second Monday of August 2005."

[32] Section 1. Consistent with the provisions of the Constitution, this Organic Act may be reamended or
revised by the Congress of the Philippines upon a vote of two-thirds (2/3) of the Members of the House
of Representatives and of the Senate voting separately.

[33] G.R. No.127383, August 18, 2005, 467 SCRA 280.

[34] Id. at 295-297, citing Duarte v. Dade, 32 Phil. 36 (1915); Lewis Southerland on Statutory
Construction, Vol. 1, Section 244, pp. 456-457.

[35] This has been established by the following exchange during the Constitutional Commission debates:

FR. BERNAS. So, the questions I have raised so far with respect to this organic act are: What segment of
the population will participate in the plebiscite? In what capacity would the legislature be acting when it
passes this? Will it be a constituent assembly or merely a legislative body? What is the nature, therefore,
of this organic act in relation to ordinary statutes and the Constitution? Finally, if we are going to amend
this organic act, what process will be followed?

MR. NOLLEDO. May I answer that, please, in the light of what is now appearing in our report.

First, only the people who are residing in the units composing the region should be allowed to
participate in the plebiscite. Second, the organic act has the character of a charter passed by Congress,
not as a constituent assembly, but as an ordinary legislature and, therefore, the organic act will still be
subject to amendments in the ordinary legislative process as now constituted, unless the Gentleman has
another purpose.
FR. BERNAS. But with plebiscite again. [Emphasis ours.];

III Record of the Constitutional Commission, pp.182-183; August 11, 1986.

[36] Section 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and
national laws, the organic act of autonomous regions shall provide for legislative powers over:

(1) Administrative organization;

(2) Creation of sources of revenues;

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;

(5) Regional urban and rural planning development;

(6) Economic, social, and tourism development;

(7) Educational policies;

(8) Preservation and development of the cultural heritage; and

(9) Such other matters as may be authorized by law for the promotion of the general welfare of the
people of the region.

[37] See discussions at pp. 14-15.

[38] Section 7. Terms of Office of Elective Regional Officials. - (1) Terms of Office. The terms of office of
the Regional Governor, Regional Vice Governor and members of the Regional Assembly shall be for a
period of three (3) years, which shall begin at noon on the 30th day of September next following the day
of the election and shall end at noon of the same date three (3) years thereafter. The incumbent elective
officials of the autonomous region shall continue in effect until their successors are elected and
qualified. [emphasis ours]

[39] Fernando, The Philippine Constitution, pp. 175-176 (1974).

[40] Id. at 177; citing the concurring opinion of Justice Jose P. Laurel in Schneckenburger v. Moran, 63
Phil. 249, 266 (1936).
[41] Vera v. Avelino, 77 Phil. 192, 212 (1946).

[42]Ople v. Torres, et al., 354 Phil. 948 (1998); see concurring opinion of Justice Jose P. Laurel in
Schneckenburger v. Moran, supra note 40, at 266.

[43] State ex rel. Green v. Collison, 39 Del 245, cited in Defensor-Santiago, Constitutional Law, Vol. 1
(2000 ed.)

[44] Sec. 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras
consisting of provinces, cities and municipalities, and geographical areas sharing common and distinctive
historical and cultural heritage, economic and social structures, and other relevant characteristics within
the framework of this Constitution and the national sovereignty as well as the territorial integrity of the
Republic of the Philippines.

[45] An empire within an empire.

[46] Bernas, Joaquin, Constitutional Structure and Powers of Government Notes and Cases Part I, 2005
ed., p. 1249.

[47] Such as the addition of sectoral representatives in the House of Representatives (paragraph 2,
Section 5, of Article VI of the Constitution), and the validation of the power of the Presidential
Commission on Good Government to issue sequestration, freeze orders, and the provisional takeover
orders of ill-gotten business enterprises, embodied in Section 26 of the Transitory Provisions.

[48] RA No. 9495 which created the Province of Quezon del Sur Province was rejected by the voters of
Quezon Province in the plebiscite of November 13, 2008.

[49] RA No. 9355.

[50] Section 50, RA No. 9355 and Section 52 of RA No. 9495.

[51] Section 462, RA No. 7160.

[52] Supra note 14.

[53] In Mutuc v. Commission on Elections [146 Phil. 798 (1970)] the Court held that, "The three
departments of government in the discharge of the functions with which it is [sic] entrusted have no
choice but to yield obedience to [the Constitution's] commands. Whatever limits it imposes must be
observed." 146 Phil. 798 (1970).

[54] In J.M. Tuason & Co., Inc. v. Land Tenure Administration [No. L-21064, February 18, 1970, 31 SCRA
413, 423], the Court, speaking through former Chief Justice Enrique, stated: As the Constitution is not
primarily a lawyer's document, it being essential for the rule of law to obtain that it should ever be
present in the people's consciousness, its language as much as possible should be understood in the
sense they have in common use. What it says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to alter it, based on the postulate that the
framers and the people mean what they say. Thus these are cases where the need for construction is
reduced to a minimum.

[55] Tawang Multi-Purpose Cooperative v. La Trinidad Water District, G.R. No. 166471, March 22, 2011.

[56] Pimentel v. Ermita, G.R. No. 164978, October 13, 2005, citing Bernas, Joaquin, The 1987
Constitution of the Republic of the Philippines: A Commentary (1996 ed.) 768.

[57] 481 Phil. 661 (2004).

[58] G.R. No. 161984, February 21, 2007, 516 SCRA 403.

[59] G.R. No. 152295, July 9, 2011.

[60] Section 7. Terms of Office of Elective Regional Officials. - (1) Terms of Office. The terms of office of
the Regional Governor, Regional Vice Governor, and members of the Regional Legislative Assembly shall
be for a period of three (3) years, which shall begin at noon on the 30th day of September next following
the day of the election and shall end at noon of the same date three (3) years thereafter. The incumbent
elective officials of the autonomous region shall continue in effect until their successors are elected and
qualified.
[61] Guekeko v. Santos, 76 Phil. 237 (1946).

[62]Lozano v. Nograles, G.R. 187883, June 16, 2009, 589 SCRA 356.

[63] Ututalum v. Commission on Elections, No. L-25349, December 3, 1965, 15 SCRA 465.

[64] See CONSTITUTION, Article VIII, Section 1.

[65] See CONSTITUTION, Article IX (C), Section 2(1).

[66] Balagtas Multi-Purpose Cooperative, Inc. v. Court of Appeals, G.R. No. 159268, October 27, 2006,
505 SCRA 654, 663, citing Lapid v. CA, G.R. No. 142261, June 29, 2000, 334 SCRA 738, quoting Morales v.
Subido, G.R. No. 29658, November 29, 1968, 26 SCRA 150.

[67] CONSTITUTION, Article X, Section 8.

[68] Article XVIII, Section 2. The Senators, Members of the House of Representatives, and the local
officials first elected under this Constitution shall serve until noon of June 30, 1992.

Of the Senators elected in the elections in 1992, the first twelve obtaining the highest number of votes
shall serve for six years and the remaining twelve for three years.

[69] Article XVIII, Section 5. The six-year term of the incumbent President and Vice-President elected in
the February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon
of June 30, 1992.

The first regular elections for the President and Vice-President under this Constitution shall be held on
the second Monday of May, 1992.

[70] Cruz, Carlo. The Law of Public Officers, 2007 edition, p. 285, citing Mechem, Section 387.
[71] Ponencia, p. 21.

[72] See Topacio Nueno v. Angeles, 76 Phil. 12, 21-22 (1946); Alba, etc. v. Evangelista, etc., et al., 100 Phil.
683, 694 (1957); Aparri v. Court of Appeals, No. L-30057, January 31, 1984, 127 SCRA 231.

[73] Hon. Luis Mario M. General, Commissioner, National Police Commission v. Hon. Alejandro S. Urro, et
al., G.R. No. 191560, March 29, 2011, citing Sarmiento III v. Mison, No. L-79974, December 17, 1987, 156
SCRA 549.

[74] Sarmiento III v. Mison, supra.

[75] If a statute is clear, plain and free from ambiguity, it must be given its literal meaning and applied
without attempted interpretation. De Jesus v. Commission on Audit, 451 Phil. 812 (2003).

[76] Supra notes 47 and 48.

[77] Supra note 50.

[78] The after-effects of the Maguindanao massacre where the Ampatuans stand charged, the
insurrection by the MILF and its various factions, and the on-going peace negotiations, among others,
are immediately past and present events that the nation has to vigilant about.

[79] 274 Phil. 523 (1991).

[80] Id. at 532.

[81] Macalintal v. Presidential Electoral Tribunal, G.R. No. 191618, November 23, 2010, 635 SCRA 783.

[82] As noted under footnote 37.

[83] 118 Phil. 1468 (1963).

[84] Record of the Constitutional Commission, Vol. III, August 11, 1986, p. 179.

[85] Records of the Constitutional Commission, Vol. III, p. 560.

[86] 391 Phil. 84, 102 (2000).

[87] Angara v. Electoral Commission, 63 Phil. 139 (1936).

[88] Commissioner of Internal Revenue v. Santos, 343 Phil. 411, 427 (1997) citing Pangilinan v. Maglaya,
225 SCRA 511 (1993).

[89] Manotok IV v. Heirs of Homer L. Barque, G.R. Nos. 162335 and 162605, December 18, 2008, 574
SCRA 468, 581.

[90] Ligeralde v. Patalinghug, G.R. No. 168796, April 15, 2010, 618 SCRA 315.

[91] Heirs of Juancho Ardona, etc., et al. v. Hon. Reyes, etc., et al., 210 Phil. 187, 207 (1983); Peralta v.
Commission on Elections, Nos. L-47771, L-47803, L-47816, L-47767, L-47791 and L-47827, March 11,
1978, 82 SCRA 30; Ermita-Malate Hotel & Motel Operations Association, Inc. v. City Mayor of Manila, No.
L-24693, July 31, 1967, 20 SCRA 849.

[92] See Estrada v. Sandiganbayan, 421 Phil. 290 (2001); Heirs of Juancho Ardona, etc., et al. v. Hon.
Reyes, etc., et al., supra; Peralta v. Commission on Elections, supra.

[93] Heirs of Juancho Ardona, etc., et al. v. Hon. Reyes, etc., et al., supra; Peralta v. Commission on
Elections, supra.

[94] G.R. No. 100883, December 2, 1991, 204 SCRA 516.

[95] Id. at 523.

DISSENTING OPINION

CARPIO, J.:

The Cases

These are original actions[1] assailing the validity of statutes and bills on the holding of elections in the
Autonomous Region in Muslim Mindanao (ARMM).

Background

The ARMM Organic Act, Republic Act No. 6734 (RA 6734), as amended by Republic Act No. 9054 (RA
9054), mandated the holding of the "first regular elections for Governor, Vice-Governor and Members of
the Regional Legislative Assembly x x x on the second Monday of September 2001."[2] The elected
officials would serve a three-year term beginning 30 September 2001.[3] Before the September 2001
elections could take place, however, Congress moved the elections to 26 November 2001 by enacting
Republic Act No. 9140 (RA 9140).[4]

Nearly four years later, Congress enacted Republic Act No. 9333 (RA 9333) fixing the date of the "regular
elections" in the ARMM "on the second Monday of August 2005 [and] x x x every three years
thereafter."[5] Elections in the ARMM took place on the second Mondays of August 2005 and August
2008 following RA 9333.

A few months before the ARMM elections on the second Monday of August 2011, several members of
the House of Representatives jointly filed House Bill No. 4146 (HB 4146), moving the date of the
elections to "the second Monday of May 2013 and x x x every three years thereafter." As the term of
office of the then incumbent elective officials in the ARMM would expire on 30 September 2011, HB
4146 authorized the President to appoint officers-in-charge who would hold office from 30 September
2011 until 30 June 2013 when the officials elected in the May 2013 elections would have assumed office.
HB 4146 aimed to synchronize the ARMM elections with the local and national elections scheduled on
the second Monday of May 2013.[6] The House of Representatives approved HB 4146 on 23 March
2011, voting 191- 47 with two abstentions.

After receiving HB 4146, the Senate, where a counterpart measure (Senate Bill No. 2756 [SB 2756]) was
pending, approved its own version on 6 June 2011 by a vote of 13-7, modifying some parts of HB 4146
but otherwise leaving its core provisions intact. The affirmative votes were two votes short of 2/3 of the
Senate membership (23). The following day, the House of Representatives adopted the Senate's version.
On 30 June 2011, the President signed the measure into law as Republic Act No. 10153 (RA 10153).

After the House of Representatives approved HB 4146, petitioners in G.R. No. 196271 filed their petition
assailing the constitutionality of HB 4146, SB 2756 and RA 9333. Soon after, petitioner in G.R. No. 196305
filed suit assailing the constitutionality of RA 9333. After the President signed into law RA 10153,
petitioners in G.R. Nos. 197221, 197280, 197282, 197392 and 197454 filed their petitions assailing the
constitutionality of RA 10153. Petitioners in G.R. No. 197280 also assail the constitutionality of RA 9140
and RA 9333. In a supplemental petition, petitioners in G.R. No. 196271 joined these latter petitions in
questioning the constitutionality of RA 10153.

The petitions against RA 9140, RA 9333 and RA 10153[7] treat these laws as amending RA 9054 and
charge Congress with failing to comply with the twin requirements prescribed in Sections 1 and 3, Article
XVII of RA 9054[8] for amending RA 9054. These twin requirements are: (1) approval by a 2/3 vote of the
members of the House of Representatives and the Senate voting separately, and (2) submission of the
amendments to ARMM voters in a plebiscite. RA 9140, RA 9333 and RA 10153 do not provide for their
submission to ARMM voters in a plebiscite. On the other hand, although the 191 affirmative votes in the
Lower House for HB 4146 satisfied the 2/3 vote threshold in RA 9054, the 13 affirmative votes in the
Senate for SB 2756 fell two votes short of the 2/3 vote threshold.

Petitioners' unanimity ends here, however, for they differ on when the elections in the ARMM should
take place. The petitions against RA 10153 favor the holding of elections on the second Monday of
August 2011[9] while those attacking RA 9333 only,[10] or together with RA 9140 and RA 10153,[11]
seek the holding of elections on the second Monday of September 2011, purportedly following RA 9054.
Another petition, which finds RA 10153 unconstitutional, leave it to the Court to order special elections
within a period "reasonably close" to the elections mandated in RA 9333.[12]

The petitions against RA 10153 further raise the following issues: (1) postponing the ARMM elections to
the second Monday of May 2013 undermines the republican and autonomous nature of the ARMM, in
violation of the Constitution and RA 9054; (2) granting the President the power to appoint OICs
unconstitutionally expands his power over the ARMM to encompass not only general supervision but
also control; and, for the petition in G.R. No. 197280, (3) Congress, in enacting RA 10153, defectively
waived the Constitution's requirement for the separate reading of bills and the advance distribution of
their printed copies because the President's certification for the urgent passage of HB 4146 and SB 2756
was not grounded on public calamity or emergency.

The petition in G.R. No. 196271 extends the reach of its attack to HB 4146 and SB 2756, for failing to
include a provision requiring the submission of the anticipated law to ARMM voters in a plebiscite.

In their separate Comments to the petitions in G.R. No. 196271 and G.R. No. 196305, the Senate and the
House of Representatives pray for the dismissal of the petitions. The Senate disagrees with the
proposition that RA 9333 constitutes an amendment to RA 9054, treating RA 9333 as merely filling the
void left by RA 9054 in failing to schedule the succeeding regular elections in the ARMM. Thus, the
Senate finds irrelevant the twin requirements in RA 9054 in the enactment of the assailed laws.
Alternatively, the Senate gives a narrow construction to the plebiscite requirement in RA 9054, limiting
the plebiscite to cover amendatory laws affecting "substantive matters," as opposed to "administrative
concerns" such as fixing election dates.[13]

The House of Representatives accepts the amendatory nature of RA 9333 but attacks the
constitutionality of the twin requirements in RA 9054 mandating a supermajority vote of each House of
Congress and the approval by ARMM voters in a plebiscite for purposes of amending RA 9054. The Lower
House grounds its attack on two points: (1) save in exceptional cases not applicable to the present
petitions, the Constitution only requires a simple majority of a quorum in each House of Congress to
enact, amend or repeal laws; and (2) the rule against the passage of irrepealable laws. Alternatively, the
House of Representatives, like the Senate, narrowly construes the plebiscite requirement in RA 9054 to
cover only amendatory laws creating or expanding the ARMM's territory.

The Senate and the House of Representatives uniformly contend that the question on the
constitutionality of HB 4146 and SB 2756 is non-justiciable.

The Office of the Solicitor General (OSG), representing respondent Commission on Elections (COMELEC)
and the other individual public respondents, joined causes with the House of Representatives on the
issue of the validity of the twin requirements in RA 9054 for the passage of amendatory laws. In
defending the President's authority under RA 10153 to appoint OICs, the OSG treats the authority as a
species of legislation falling under Section 16, Article VII of the Constitution authorizing the President to
appoint "those whom he may be authorized by law to appoint." The OSG rejects petitioners' treatment
of this authority as granting the President control over the ARMM, contending instead that it is
analogous to Section 7, Article XVIII of the Constitution, authorizing the President for a limited period to
appoint sectoral representatives in the House of Representatives.

On 9 August 2011, the Court heard the parties in oral argument.

On 13 September 2011, the Court issued a temporary restraining order enjoining respondents from
implementing RA 10153. Meanwhile, the Court authorized the then incumbent elective officials in the
ARMM to continue in office in the event that the present petitions remain unresolved after the officials'
term of office expires on 30 September 2011.

The Court granted intervention to four groups of parties who filed comments-in-intervention joining
causes with respondents.

The Issues

The following are the issues for resolution:

Did the passage of RA 10153 violate Section 26(2), Article VI of the Constitution?

Do Section 2 of RA 10153, Section 1 of RA 9333 and Section 2 of RA 9140 constitute an amendment to

Section 7, Article XVIII of RA 9054? If in the affirmative -

Is Section 1, Article XVII of RA 9054 repugnant to Section 1 and Section 16(2), Article VI of the
Constitution and violative of the rule against the passage of irrepealable laws?; and

Does Section 3, Article XVII of RA 9054 apply only in the creation of autonomous regions under
paragraph 2, Section 18, Article X of the Constitution?

Do Sections 3, 4 and 5 of RA 10153 -

Violate Sections 15, 16, and 18, Article X of the Constitution?;

Fall under Section 16, Article VII of the Constitution?; and

Repeal the second sentence of Section 7(1), Article VII of RA 9054?

Does RA 10153 implement Sections 2 and 5, Article XVIII of the Constitution?

I vote to declare RA 9333 constitutional, and RA 10153 partly unconstitutional. The synchronization of
the ARMM elections with the national and local elections under RA 10153 is constitutional. However,
Sections 3, 4 and 5 of RA 10153 authorizing the President to appoint OICs in place of elective ARMM
officials are unconstitutional. Save in newly created local government units prior to special or regular
elections, elective officials of local government units like the ARMM cannot be appointed by the
President but must be elected in special or regular elections. Hence, respondent COMELEC should be
ordered to hold special elections in the ARMM as soon as possible.

Pending the assumption to office of the elected ARMM Governor, the President, under his general
supervision over local governments, may appoint an officer-in-charge in the office of the ARMM
Governor. Such appointment is absolutely necessary and unavoidable to keep functioning essential
government services in the ARMM. On the other hand, I vote to declare unconstitutional the second
sentence of Section 7(1), Article VII of RA 9054 authorizing ARMM elective officials to hold over until the
election and qualification of their successors. Such hold over violates the fixed term of office of elective
local officials under the Constitution.

The challenge against the constitutionality of HB 4146 and SB 2756 raises a non-justiciable question,
hence immediately dismissible. Until legislative bills become laws, attacks against their constitutionality
are premature, lying beyond the pale of judicial review.[14]

The President's Certification on Urgency of Legislation

Not Subject to Heightened Scrutiny

Petitioners in G.R. No. 197280 claim that Congress defectively passed RA 10153 for failing to comply with
the requirement in the Constitution for the reading of bills on three separate days and the advanced
distribution of their printed copies in final form under the second paragraph of Section 26, Article VI,
which provides:

No bill passed by either House shall become a law unless it has passed three readings on separate days,
and printed copies thereof in its final form have been distributed to its Members three days before its
passage, except when the President certifies to the necessity of its immediate enactment to meet a
public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed,
and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the
Journal. (Emphasis supplied)

Although the President certified HB 4146 and SB 2756 as urgent measures, thus dispensing with the bills'
separate reading and advanced distribution, petitioners in G.R. No. 197280 find the basis of the
President's certification, namely, the "need to protect x x x ARMM's autonomy x x x and provide
mechanism to institutionalize electoral reforms," as "flimsy," falling short of the Constitution's
requirement of public calamity or emergency.[15]

The Court has refused in the past to subject to heightened scrutiny presidential certifications on the
urgency of the passage of legislative measures. In Tolentino v. Secretary of Finance,[16] petitioners in
that case questioned the sufficiency of the President's certification of a "growing budget deficit" as basis
for the urgent passage of revenue measures, claiming that this does not amount to a public calamity or
emergency. The Court declined to strike down the President's certification upon a showing that
members of both Houses of Congress had the opportunity to study the bills and no fundamental
constitutional rights were "at hazard":

It is nonetheless urged that the certification of the bill in this case was invalid because there was no
emergency, the condition stated in the certification of a "growing budget deficit" not being an unusual
condition in this country.

It is noteworthy that no member of the Senate saw fit to controvert the reality of the factual basis of the
certification. To the contrary, by passing S. No. 1630 on second and third readings on March 24, 1994,
the Senate accepted the President's certification. Should such certification be now reviewed by this
Court, especially when no evidence has been shown that, because S. No. 1630 was taken up on second
and third readings on the same day, the members of the Senate were deprived of the time needed for
the study of a vital piece of legislation?

The sufficiency of the factual basis of the suspension of the writ of habeas corpus or declaration of
martial law under Art. VII, § 18, or the existence of a national emergency justifying the delegation of
extraordinary powers to the President under Art. VI, § 23(2), is subject to judicial review because basic
rights of individuals may be at hazard. But the factual basis of presidential certification of bills, which
involves doing away with procedural requirements designed to insure that bills are duly considered by
members of Congress, certainly should elicit a different standard of review. (Emphasis supplied)
As in Tolentino, Congress, in passing RA 10153, found sufficient the factual bases for President Aquino's
certification of HB 4146 and SB 2756 as emergency measures. Petitioners in G.R. No. 197280 do not
allege, and there is nothing on record to show, that members of Congress were denied the opportunity
to examine HB 4146 and SB 2756 because of the President's certification. There is thus no basis to
depart from Tolentino.[17]

RA 9333 and RA 10153 Supplement

and do not Amend RA 9054

The petitions assailing RA 9333 and RA 10153 are united in their contention that these amendatory laws
to RA 9054 are invalid for failure to comply with the twin requirements in RA 9054, namely, that the
amendments must be approved by a 2/3 vote of each House of Congress and submitted to ARMM voters
in a plebiscite. The underlying assumption of petitioners' theory - that RA 9333 and RA 10153 amend RA
9054 - is legally baseless.

Section 7, Article XVIII of RA 9054 on the holding of ARMM elections provides in part:

First Regular Elections. - The first regular elections of the Regional Governor, Regional Vice-Governor and
members of the regional legislative assembly under this Organic Act shall be held on the second Monday
of September 2001. The Commission on Elections shall promulgate rules and regulations as may be
necessary for the conduct of said election. (Emphasis supplied)

xxxx

The ambit of Section 7 is narrow, confined to the "first regular elections," scheduled "on the second
Monday of September 2001." This left open the scheduling of elections succeeding the "first regular
elections."

In the exercise of its plenary legislative power, Congress filled this void by enacting RA 9333, Section 1 of
which provides:

Section 1. Date of Election. - The regular election for regional Governor and Regional Vice-Governor and
Members of the Regional Legislative Assembly of the Autonomous Region in Muslim Mindanao (ARMM)
shall be held on the second Monday of August 2005. Succeeding regular elections shall be held on the
same date every three years thereafter. (Emphasis supplied)
In the discharge of the same power, Congress subsequently passed RA 10153, Section 2 of which states:

SEC. 2. Regular Elections. - The regular elections for the Regional Governor, Regional Vice-Governor and
Members of the Regional Legislative Assembly of the Autonomous Region in Muslim Mindanao (ARMM)
shall be held on the second (2[nd]) Monday of May 2013. Succeeding regular elections shall be held on
the same date every three (3) years thereafter. (Emphasis supplied)

Had Congress intended RA 9054 to govern not only the "first regular elections" but also succeeding
regular elections, it would have included in Section 7 of Article XVIII a provision stating to the effect that
the succeeding regular elections shall be held on the same date every three years thereafter, consistent
with the three-year term of office of elective officials in the ARMM.[18] Instead, RA 9054 confines itself
to the "first regular elections." Tellingly, it is only in Section 1 of RA 9333 and Section 2 of RA 10153 that
Congress touched on the succeeding regular elections in the ARMM, by uniformly providing that
"[s]ucceeding regular elections shall be held" on the date indicated "every three years thereafter."

The legislative practice of limiting the reach of the ARMM Organic Act to the first regular elections,
leaving the date of the succeeding regular elections for Congress to fix in a subsequent legislation, traces
its roots in the ARMM's first Organic Act, RA 6734. Section 7, Article XIX of RA 6734 fixed the date of the
"first regular elections," to take place "not earlier than sixty (60) days or later than ninety (90) days" after
the ratification of RA 6743. Section 7 reads in full:

The first regular elections of the Regional Governor, Vice-Governor and Members of the Regional
Assembly under this Organic Act shall be held not earlier than sixty (60) days or later than ninety (90)
days after the ratification of this Act. The Commission on Elections shall promulgate such rules and
regulations as may be necessary for the conduct of said election. (Emphasis supplied)

To fix the date of the succeeding regular elections, Congress passed several measures, moving the
election day as it deemed proper.[19] Like RA 9333 and RA 10153, these enactments merely filled a void
created by the narrow wording of RA 6734. RA 9333 and RA 10153 are therefore separate, stand-alone
statutes that do not amend any provision of RA 9054.

RA 9140 Rendered Functus Officio

after 26 November 2001 Elections

Petitioners in G.R. No. 197280 attack Section 2 of RA 9140 also for its failure to comply with the twin
requirements in amending RA 9054.[20] To recall, under Section 2 of RA 9140, which immediately
preceded RA 9333, the date of the first elections in the ARMM under RA 9054 was moved to 26
November 2001.

There is no reason to traverse this issue for the simple reason that Congress passed RA 9140 solely for
the narrow purpose of fixing the date of the plebiscite for RA 9054 (Section 1) and the date of the first
regular elections in the ARMM under RA 9054 (Section 2). These electoral exercises took place on 14
August 2001 and 26 November 2001, respectively. Hence, RA 9140 became functus officio after 26
November 2001. It is futile, in this case, to review the validity of a functus officio law.

Granting that RA 9333 and RA 10153 Amend

RA 9054, these Laws Remain Valid

That RA 9333 and RA 10153 merely filled a void in RA 9054 would have sufficed to dispose of the
argument that these laws are invalid for non-compliance with the twin requirements in RA 9054. These
requirements would have been left unreviewed were it not for the fact that respondents and intervenors
vigorously insist on their invalidity. The issue having been raised squarely, the Court should pass upon it.

Section 1, Article XVII of RA 9054

Requiring 2/3 Vote to Amend RA 9054

Unconstitutional

Section 1, Article XVII of RA 9054 requires a 2/3 supermajority vote of the members of each House of
Congress to amend or repeal RA 9054. This provision states:

Consistent with the provisions of the Constitution, this Organic Act may be reamended or revised by the
Congress of the Philippines upon a vote of two-thirds (2/3) of the Members of the House of
Representatives and of the Senate voting separately. (Emphasis supplied)

Respondents House of Representatives, COMELEC and individual officials assail this provision's
constitutionality on two grounds. First, it is repugnant to Section 16 (2), Article VI of the Constitution
requiring a mere majority of members of both Houses of Congress to constitute a quorum to do
business.[21] Second, it violates the doctrine barring the passage of irrepealable laws, a doctrine rooted
on the plenary power of Congress to amend or repeal laws that it enacts.
Section 16 (2), Article VI of the Constitution, which provides that "[a] majority of each House shall
constitute a quorum to do business x x x," sets the vote threshold for Congress to conduct its legislative
work in plenary session. Under this provision, a majority of each House suffices for Congress to hold
sessions and pass, amend, or repeal bills and resolutions, upon a vote of a majority of the members
present who constitute a quorum. In short, a majority of a quorum, or a majority of a majority, can
enact, amend or repeal laws or approve acts requiring the affirmative action of Congress, unless the
Constitution prescribes a qualified or supermajority in specific cases.[22]

By providing that RA 9054 "may be reamended or revised by the Congress of the Philippines upon a vote
of two-thirds (2/3) of the Members of the House of Representatives and of the Senate voting
separately," Section 1, Article XVII of RA 9054 raised the vote threshold necessary to amend RA 9054 to a
level higher than what Section 16 (2), Article VI of the Constitution requires. Thus, without Section 1,
Article XVII of RA 9054, it takes only 72[23] votes in the Lower House and 7[24] votes in the Senate to
pass amendments or revisions to RA 9054, assuming a simple quorum in attendance in either House.
With the same provision in the statute books, at least 189 votes in the House of Representatives and at
least 15 in the Senate are needed to enact the same amendatory or repealing legislation, assuming the
same simple quorum in either House. The repugnancy between the statutory provision and the
Constitution is irreconcilable. Needless to say, the Constitution prevails.

Section 1, Article XVII of RA 9054 also runs afoul of the inherent limitation on Congress' power barring it
from passing irrepealable laws.[25] Section 1, Article XVII of RA 9054 erects a high vote threshold for
each House of Congress to surmount, effectively and unconstitutionally, taking RA 9054 beyond the
reach of Congress' amendatory powers. One Congress cannot limit or reduce the plenary legislative
power of succeeding Congresses by requiring a higher vote threshold than what the Constitution
requires to enact, amend or repeal laws. No law can be passed fixing such a higher vote threshold
because Congress has no power, by ordinary legislation, to amend the Constitution.

The Constitution's rule allowing a simple majority of each House of Congress to do business evinces the
framers' familiarity with the perennial difficulty plaguing national legislative assemblies in constituting a
quorum. Set the quorum requirement any higher and plenary legislative work will most likely slow down
if not grind to a halt. The 2/3 vote threshold in Section 1, Article XVII of RA 9054 effectively ensures the
near immutability of RA 9054, in derogation of Congress' plenary power to amend or repeal laws. Unless
the Constitution itself mandates a higher vote threshold to enact, amend or repeal laws,[26] each House
of Congress can do so by simple majority of the members present who constitute a quorum.

There is no merit in the proposition that Section 1, Article XVII of RA 9054 is an "additional safeguard[] to
protect and guarantee" the autonomy of the ARMM.[27] Autonomy, even of the expanded type
prevailing in the ARMM, means vesting of more powers and resources to the local or regional
government units. To say that autonomy means shackling the hands of Congress in improving laws or
passing remedial legislations betrays a gross misconception of autonomy.

Nor is the provision in Section 27(1), Article VI of the Constitution requiring a 2/3 vote for Congress to
override a presidential veto an argument for the validity of Section 1, Article XVII of RA 9054. The veto-
override provision neither negates the simple majority rule for Congress to legislate nor allows the
passage of irrepealable laws. The Presidential veto is a power of the Executive to reject a law[28] passed
by Congress, with the associated power of Congress to override such veto by a 2/3 vote. This associated
power of Congress is not an independent power to prescribe a higher vote threshold to enact, amend or
repeal laws, an act which does not involve any Presidential veto but operates as an auto-limitation on
the plenary power of Congress to legislate.

The veto-override provision is a small but vital mechanism presidential systems adopt to calibrate the
balance of power between the Executive and the Legislature. It ensures the Executive a substantial voice
in legislation by requiring the Legislature to surmount a vote threshold higher than the simple majority
required to pass the vetoed legislation. The veto-override provision cannot be used to immobilize future
Congresses from amending or repealing laws by a simple majority vote as provided in Section 16(2),
Article VI of the Constitution.

Plebiscite Mandatory only

in Approving Creation or Expansion

of the ARMM

The second paragraph of Section 18, Article X of the Constitution requires the holding of a plebiscite in
the autonomous region for the approval of its creation, thus:

The creation of the autonomous region shall be effective when approved by a majority of the votes cast
by the constituent units in a plebiscite called for the purpose. (Emphasis supplied)

Section 18 of Article X is substantially similar to Section 10, Article X of the Constitution, mandating that
no local government unit shall be "created, divided, merged, abolished, or its boundaries substantially
altered"[29] unless, among others, voters of the affected units approve the proposed measure in a
plebiscite.
The narrow ambit of these constitutional provisions, limiting the plebiscite to changes in the size of the
unit's territory, is commonsensical. The Constitution requires that territorial changes, affecting the
jurisdiction, income, and population of a local government unit, should not be left solely for politicians to
decide but must be submitted for approval or rejection by the people affected.[30]

In sharp contrast to the narrow scope of Section 10 and Section 18 of Article X of the Constitution,
Section 3, Article XVII of RA 9054 mandates the holding of a plebiscite in the ARMM to approve "[a]ny
amendment to or revision of" RA 9054, thus:

Any amendment to or revision of this Organic Act shall become effective only when approved by a
majority of the vote cast in a plebiscite called for the purpose, which shall be held not earlier than sixty
(60) days or later than ninety (90) days after the approval of such amendment or revision. (Emphasis
supplied)

Petitioners give a literal interpretation to this provision by applying it to all amendments to or revisions
of RA 9054, including the fixing of the date of elections in the ARMM that RA 10153 mandates.

By requiring the holding of a plebiscite to approve "any amendment to or revision" of RA 9054, Section
3, Article XVII of RA 9054, a supposed statutory implementation of the second paragraph of Section 18,
Article X of the Constitution, impermissibly expands the scope of the subject matter that the
Constitution requires to be submitted to a plebiscite. By barring any change to RA 9054 from taking
effect unless approved by ARMM voters in a plebiscite, even if unrelated to the ARMM's creation,
reduction or expansion, Section 3 of Article XVII directly contravenes Section 18, Article X of the
Constitution.[31]

True, the Court held in Disomangcop v. Datumanong[32] that Republic Act No. 8999 (RA 8999) creating
an engineering office within the ARMM is an "amendatory law which should x x x first obtain the
approval of the people of the ARMM before it can validly take effect."[33] This statement, obviously an
obiter dicta, furnishes no ground to support petitioners' interpretation of Section 3, Article XVII of RA
9054. What the Court resolved in Disomangcop was whether RA 8999, creating an office performing
functions inconsistent with those created under the ARMM Organic Act, prevails over the latter. The
Court anchored its negative answer, not on the ground that RA 8999 was invalid for not having been
approved in a plebiscite, but on the fact that RA 8999, signed into law in January 2001, "was repealed
and superseded by RA 9054," enacted in March 2001. Thus, in disposing of the case, we ruled:

WHEREFORE, considering that Republic Act No. 9054 repealed Republic Act No. 8999 and rendered
DPWH Department Order No. 119 functus officio, the petition insofar as it seeks the writs of certiorari
and prohibition is GRANTED.[34] x x x x (Emphasis supplied)
The Court was not confronted in Disomangcop, as it is now, with the issue of whether a law changing the
date of elections in the ARMM should be submitted to ARMM voters in a plebiscite.

Congress' Power to Synchronize National and Local Elections

does not Encompass Appointment of OICs

in Place of Elective Officials

The Constitution impliedly requires the synchronization of elections for President, Vice-President,
members of Congress and local officials after the end of their first term by simultaneously ending their
tenure on 30 June 1992, extending in the process the initial tenure of the members of Congress and local
officials.[35] As the Court confirmed in Osmeña v. Commission on Elections:[36] "[t]he Constitution has
mandated a synchronized national and local election prior to June 30, 1992 or more specifically as
provided for in Article XVIII, Sec. 5 - on the second Monday of May 1992."[37] After the Court struck
down Republic Act No. 7065 in Osmeña for desynchronizing local and national elections, Congress
subsequently passed Republic Act No. 7166 (RA 7166) synchronizing elections for presidential, vice-
presidential, congressional, provincial, city and municipal officials. RA 10153 widens the ambit of the
Constitution's policy of synchronizing elections by including the ARMM into the loop of synchronized
elections. With the passage of RA 10153, only barangay and sangguniang kabataan elections are
excluded from the synchronized national and local elections.[38]

The contention of petitioners in G.R. No. 196271 that the elections in the ARMM cannot be synchronized
with the existing synchronized national and local elections is untenable. Petitioners advance the theory
that elections in the ARMM are not "local elections" because ARMM officials are not "local officials"
within the meaning of Sections 2 and 5, Article XVIII of the Constitution.[39]

Under Section 1, Article X of the Constitution, the ARMM is a local government unit just like provinces,
cities, municipalities, and barangays. Section 1, Article X of the Constitution provides:

The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities,
municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided. (Emphasis supplied)

The entire Article X of the Constitution is entitled "Local Government" because Article X governs the
creation of, and the grant of powers to, all local government units, including autonomous regions.[40]
Thus, elective officials of the ARMM are local officials because the ARMM is a local government unit, just
like provinces, cities and municipalities.

Section 8, Article X of the Constitution provides that "[t]he term of office of elective local officials, except
barangay officials, which shall be determined by law, shall be three years x x x." In compliance with this
provision, ARMM elective officials serve three-year terms under RA 9054.[41] Congress cannot fix the
term of elective local officials in the ARMM for less, or more, than three years. Clearly, elective officials in
the ARMM are "local officials" and elections in the ARMM, a local government unit, are "local elections."

Congress' power to provide for the simultaneous holding of elections for national and local officials,
however, does not encompass the power to authorize the President to appoint officers-in-charge in
place of elective local officials, canceling in the process scheduled local elections. To hold otherwise is to
sanction the perversion of the Philippine State's democratic and republican nature.[42] Offices declared
by the Constitution as elective must be filled up by election and not by appointment. To appoint officials
to offices mandated by the Constitution to be elective, absent an absolutely unavoidable necessity to
keep functioning essential government services, is a blatant violation of an express command of the
Constitution.

Options to Fill Vacancies in the ARMM

Elective Offices After 30 September 2011

In desiring to include elections in the ARMM in the existing synchronized national and local elections,
Congress faced a dilemma arising from the different schedules of the election cycles under RA 7166 and
RA 9333. Under RA 7166, national and local elections simultaneously take place every second Monday of
May in a three-year cycle starting 1992. On the other hand, under RA 9333, elections in the ARMM take
place every second Monday of August in a three-year cycle starting 2005. Thus, a 21-month gap
separates the two electoral cycles. The horn of the dilemma lies in how to fill up elective offices in the
ARMM during this gap.

There are three apparent ways out of this dilemma, namely: (1) allow the elective officials in the ARMM
to remain in office in a hold over capacity; (2) authorize the President to appoint OICs; or (3) hold special
elections in the ARMM, with the terms of those elected to expire on 30 June 2013. Two petitions favor
partial hold over pending the holding of special elections.[43] On the other hand, the OSG defends
Congress' choice under RA 10153 authorizing the President to appoint OICs who will hold office until 30
June 2013.
Sections 3, 4 and 5 of RA 10153 Authorizing

the President to Appoint OICs

in Elective Local Offices in the

ARMM Unconstitutional

Historically, the legislature has authorized the President to appoint OICs for elective local offices only as
an incident to the creation of a new local government unit or to its transition from a sub-unit to a full-
fledged political subdivision. Thus, statutes creating the provinces of Quezon del Sur[44] and Dinagat
Islands[45] uniformly authorized the President to appoint "an interim governor, vice-governor and
members of the sangguniang panlalawigan, who shall serve only until a new set of provincial officials
have been elected and qualified."[46] Similarly, the statute creating the municipality of T'boli in South
Cotabato authorized the President to "appoint the elective officials of the new Municipality who shall
hold office until their successors shall have been duly elected in the general elections next following the
issuance of this Decree."[47] The same authorization is found in the Local Government Code for sub-
provinces, authorizing the President to appoint the interim governor, vice-governor and members of the
sangguniang panlalawigan while the sub-provinces are transitioning to the status of a province.[48]

These legislative authorizations are rendered imperative by the fact that incipient or transitioning local
government units are devoid of elective officials prior to special or regular local elections. Where the law
provides for the creation of a local government unit prior to the election of its local officials, it becomes
absolutely necessary and unavoidable for the legislature to authorize the President to appoint interim
officials in elective local offices to insure that essential government services start to function.

In authorizing the President to appoint OICs in the ARMM, Section 3 of RA 10153 provides:

Appointment of Officers-in-Charge.--The President shall appoint officers-in-charge for the Office of the
Regional Governor, Regional Vice-Governor and Members of the Regional Legislative Assembly who shall
perform the functions pertaining to the said offices until the officials duly elected in the May 2013
elections shall have qualified and assumed office.

Section 3 is supplemented by Section 4 which provides the manner and procedure of appointment[49]
while Section 5 states the qualifications for the OICs.[50]

It takes no extensive analysis to conclude that Section 3 is neither necessary nor unavoidable for the
ARMM to function. The ARMM is an existing, as opposed to a newly created or transitioning, local
government unit created more than two decades ago in 1989. At the time of the passage of RA 10153,
elected officials occupied all the elective offices in the ARMM. No one claims that it is impossible to hold
special local elections in the ARMM to determine its next set of elective officials.

Section 3 of RA 10153 negates the representative and democratic nature of the Philippine State and its
political subdivisions such as the ARMM.[51] Section 18, Article X of the Constitution on the organic act
of autonomous regions expressly requires the organic act to define the "[b]asic structure of government
for the region consisting of the executive department and legislative assembly, both of which shall be
elective and representative of the constituent political units."[52] The ARMM's Organic Act, RA 6734, as
amended by RA 9054, implements Section 18, Article X of the Constitution by mandating the popular
election of its executive and legislative officials.[53] Section 3 of RA 10153, however, negates Congress'
implementation of the Constitution under RA 9054 by making the executive and legislative offices in the
ARMM appointive.

There is no merit in the OSG's argument that Section 3 of RA 10153 is similar to Section 7, Article XVIII of
the 1987 Constitution, authorizing the President to appoint sectoral representatives in Congress pending
the passage of legislation on party-list representation.[54] The filling of seats in the House of
Representatives under Section 7, Article XVIII of the Constitution is authorized by the Constitution itself
and thus can never be questioned as unconstitutional. In ratifying the Constitution, the Filipino people
authorized the President to appoint sectoral representatives for a limited period. However, the
appointment by the President of OICs in the ARMM under Sections 3, 4 and 5 of RA 10153 is not
authorized under the Constitution but is in fact in violation of the Constitution that the Filipino people
ratified overwhelmingly.

What Section 3 of RA 10153 approximates is the provision in the Freedom Constitution allowing "[a]ll
elective x x x officials [to] continue in office until otherwise provided by proclamation or executive order
or upon the designation or appointment and qualification of their successors, if such is made within a
period of one year from February 25, 1986."[55] Wisely enough, none of the respondents saw fit to
invoke this provision as precedent. The mass replacement of elective local officials following the EDSA
uprising in 1986 was part of the then revolutionary government's purging of the local government ranks
of officials linked to the excesses of the previous regime. In making her appointments, then President
Corazon C. Aquino wielded executive and legislative powers unconstrained by any specific constitutional
limitation. This is not the situation in the present case.

Nor is Section 3 of RA 10153 a species of legislation falling under Section 16, Article VII of the
Constitution authorizing the President to appoint "those whom he may be authorized by law to
appoint." This provision does not empower Congress to authorize the President to fill up by appointment
positions that, by express mandate of the Constitution, are "elective and representative" offices. Section
16, Article VII of the Constitution obviously refers only to appointive and not elective offices.
Clearly, authorizing the President to appoint OICs in place of elective officials in the ARMM, an existing
local government unit, contravenes Section 18, Article X of the Constitution, which mandates that the
"executive department and legislative assembly" of the ARMM "shall be elective and representative."
Elective local offices in the ARMM, after the ARMM's creation and holding of regular local elections,
cannot be filled up through the appointment of OICs by the President without violating Section 18,
Article X of the Constitution.

However, under Section 4, Article X of the Constitution, the President exercises "general supervision"
over all local governments. In case it is absolutely necessary and unavoidable to keep functioning
essential government services, the President may, under his power of general supervision over local
governments, appoint OICs where vacancies occur in existing elective local offices and the law does not
provide for succession, or where succession is inapplicable because the terms of elective officials have
expired.

Thus, the President may appoint an officer-in-charge in the office of the ARMM Governor pending the
holding of special local elections in the ARMM. The appointment of such officer-in-charge is absolutely
necessary and unavoidable because someone must insure that essential government services continue
to function in the ARMM. The officer-in-charge shall exercise the powers and perform the functions of
the ARMM Governor under RA 9054 and related laws until the assumption to office of the elected
ARMM Governor. However, all appointments made by the officer-in-charge shall terminate upon the
assumption to office of the elected Governor.

It is, however, not absolutely necessary and unavoidable to appoint OICs in the ARMM Regional
Legislative Assembly because Section 22, Article VII of RA 9054 provides for the automatic reenactment
of the ARMM budget if the Regional Legislative Assembly fails to pass the appropriation bill for the
ensuing fiscal year.[56] Even without OIC regional assembly members, the ARMM will have an
operational budget for the next fiscal year. However, following the Local Government Code, which
applies suppletorily to the ARMM,[57] "only the annual appropriations for salaries and wages of existing
positions, statutory and contractual obligations, and essential operating expenses authorized in the
annual and supplemental budgets for the preceding year" are deemed reenacted.[58] The officer-in-
charge in the office of the ARMM Governor shall disburse funds from the reenacted budget in
accordance with the applicable provisions of the Local Government Code and its implementing rules.

Second Sentence of Section 7(1),

Article VII of RA 9054 Authorizing

the Hold Over of ARMM Officials

Unconstitutional
Petitioner in G.R. No. 197282 invokes the second sentence of Section 7(1), Article VII of RA 9054, which
provides:

Terms of Office of Elective Regional Officials. - (1) Terms of Office. The terms of office of the Regional
Governor, Regional Vice-Governor and members of the Regional Assembly shall be for a period of three
(3) years, which shall begin at noon on the 30th day of September next following the day of the election
and shall end at noon of the same date three (3) years thereafter. The incumbent elective officials of the
autonomous region shall continue in office until their successors are elected and qualified.[59]
(Emphasis supplied)

as statutory authorization for ARMM elective officials at the time of the passage of RA 10153 to remain
in office until their successors, elected in special elections, assume office. Petitioner in G.R. No. 197221
invokes the same provision to allow ARMM officials to remain in office until 30 June 2013. On the other
hand, respondents-intervenors[60] consider the same provision unconstitutional for extending the term
of office of ARMM officials beyond the three years mandated in Section 8, Article X of the Constitution.
There is merit to this latter claim.

Section 8, Article X of the Constitution limits the term of office of elective local officials, except barangay
officials, to three years:

The term of office of elective local officials, except barangay officials, which shall be determined by law,
shall be three years and no such official shall serve for more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall not be considered as an interruption in the
continuity of his service for the full term for which he was elected. (Emphasis supplied)

Elective ARMM officials are "local officials"[61] within the meaning of Section 8, Article X of the
Constitution. The ARMM Charter, RA 9054, complies with Section 8, Article X of the Constitution by
providing that "[t]he terms of office of the Regional Governor, Regional Vice-Governor and members of
the Regional Assembly shall be for a period of three (3) years."[62]

The question of whether a law may constitutionally mandate the "hold over" of local officials beyond the
expiration of their term as fixed in the Constitution is not novel. The Court reviewed such a law in
Osmeña and struck down the law, holding that "it is not competent of the legislature to extend the
term of officers by providing that they shall hold over until their successors are elected and qualified
where the [C]onstitution has x x x prescribed the term":
[S]ection 2, Article XVIII of the Constitution x x x provides that the local official first elected under the
Constitution shall serve until noon of June 30, 1992. But under Sec. 3 of RA 7056, these incumbent local
officials shall hold over beyond June 30, 1992 and shall serve until their successors shall have been duly
elected and qualified. It has been held that:

It is not competent for the legislature to extend the term of officers by providing that they shall hold
over until their successors are elected and qualified where the constitution has in effect or by clear
implication prescribed the term and when the Constitution fixes the day on which the official term shall
begin, there is no legislative authority to continue the office beyond that period, even though the
successors fail to qualify with the time. x x x x

In American Jurisprudence it has been stated as follows:

It has been broadly stated that the legislature cannot, by an act postponing the election to fill an office
the term of which is limited by the Constitution, extend the term of the incumbent beyond the period as
limited by the Constitution.

Also, there is Section 8, Article X of the Constitution which provides that:

The term of office of elective local officials, except barangay officials which shall be determined by law
shall be three years and no such official shall serve for more than three consecutive terms. . .

x x x .[63] (Boldfacing supplied; italicization in the original)

Osmeña is grounded on reasons of power and public policy. First, the power of Congress to fix the terms
of public offices stems from (1) its inherent power to create such public offices or (2) a constitutionally
delegated power to that effect. Thus, if a public office is created by the Constitution with a fixed term, or
if the term of a public office created by Congress is fixed by the Constitution, Congress is devoid of any
power to change the term of that office. Thus, statutes which extend the term of an elective office as
fixed in the Constitution - either by postponing elections, changing the date of commencement of term
of the successor, or authorizing the incumbent to remain in office until his successor is elected and
qualified - are unconstitutional as it amounts to an appointment of an official by Congress to a
constitutional office, a power vested either in the Executive or in the electorate,[64] or a negation of the
term of office fixed in the Constitution.

Second, constitutional provisions fixing the terms of elective officials serve the ends of democratic
republicanism by depriving elective officials of any legal basis to remain in office after the end of their
terms, ensuring the holding of elections, and paving the way for the newly elected officials to assume
office.[65] Such provisions, which are found in the 1987 Constitution, are framed upon the belief that to
ensure democratic values, there must be periodic electoral exercises. By refusing to include hold over
provisions in fixing the terms of elective national and non-barangay local officials, the framers of the
1987 Constitution guaranteed not only the elective nature of these offices[66] but also secured our
democratic values.

The wisdom of Osmeña is magnified when the evils it seeks to bar are applied to the elective officials
whose terms of office the 1987 Constitution fixed, namely:

President, with a single term of six years, beginning at noon on the thirtieth day of June next following
the day of the election;[67]

Vice-President, with a term of six years beginning at noon on the thirtieth day of June next following the
day of the election, eligible for one reelection;[68]

Senators, with a term of six years beginning at noon on the thirtieth day of June next following the day of
the election, unless otherwise provided by law, eligible for two consecutive reelections;[69]

Members of the House of Representatives, with a term of three years beginning at noon on the thirtieth
day of June next following the day of the election, unless otherwise provided by law, eligible for two
consecutive reelections;[70] and

Local officials, except barangay officials, with a term of three years, for a maximum of three consecutive
terms.[71]

A ruling contrary to Osmeña would allow Congress to pass a law, in the guise of ensuring the continuity
of public service and preventing a hiatus in office, mandating the President, Vice-President, Senators,
Congressmen and elective local officials other than barangay officials to remain in office "until their
successors are elected and qualified." In doing so, Congress would have arrogated to itself the power to
lengthen the terms of office of the President, Vice-President, Senators, Congressmen and non-barangay
elective local officials in contravention of their terms as fixed in the Constitution. The absence in the
Constitution of any provision allowing the hold over of national and non-barangay elective local officials
or of any provision vesting on Congress the power to fix the terms of office of these officials means that
any alteration in their terms of office can only be effected through a constitutional amendment.

The Local Government Code does not authorize the hold over of elective local officials.[72] This is
consistent with the constitutional provision fixing the term, without hold over, of all elective non-
barangay local officials. With the exception of the hold over provision in RA 9054, Congress refrained
from passing laws allowing hold over of non-barangay elective local officials. Congress passed a law to
that effect (Section 5 of Republic Act No. 9164 [RA 9164]) only for barangay and sangguniang kabataan
officials which the Court reviewed and upheld in Sambarani v. COMELEC.[73] The legislature's passage of
RA 9164 is in accord with the Constitution's grant to Congress of the power to determine the term of
barangay officials.

In contrast, Section 7(1), Article VII of RA 9054, allowing for the hold over of elective local officials in the
ARMM, finds no basis in the Constitution. Indeed, Section 7(1) contravenes the Constitution by
extending the term of office of such elective local officials beyond the three year period fixed in Section
8, Article X of the Constitution.

Beyond the question of power, Osmeña protects democratic values and assures public order. The
certainty of departure from office that term endings and term limits bring carries with it the certainty of
the holding of regular and periodic elections, securing the voters' right to elect the officials for the new
term. On the other hand, faced with no choice but to leave office on the day their terms end, elective
officials stand to gain nothing in sabotaging electoral processes to extend their stay in office.

It is immaterial that the laws Congress enacted in the past postponing elections in the ARMM all
contained provisions for the hold over of the incumbents until the election of their successors.[74] None
of these laws were challenged before the Court, thus the Court had no occasion to pass upon their
validity.[75]

Nor is the Court's Resolution of 13 September 2011 authorizing the then incumbent ARMM elective
officials to continue in office under Section 7(1), Article VII of RA 9054 a prejudgment of the provision's
validity. The Resolution of 13 September 2011 is a preliminary, ancillary remedy to ensure the continued
functioning of essential government services in the ARMM. Implicit in the issuance of the Resolution of
13 September 2011 is the understanding that such was without prejudice to the resolution of the issues
raised in these petitions, including the validity of Section 7(1), Article VII of RA 9054.
Section 5, BP 881 Basis for

Holding of Special Elections

The unconstitutionality of Section 7(1), Article VII of RA 9054 and Sections 3, 4 and 5 of RA 10153 leaves
the holding of special elections as the only constitutionally permissible option to fill up the offices of the
ARMM Governor, Vice-Governor and members of the Regional Legislative Assembly after 30 September
2011. Section 5 of Batas Pambansa Bilang 881 (BP 881), as amended, authorizes respondent COMELEC to
hold special elections "[w]hen for any serious cause such as x x x loss or destruction of election
paraphernalia or records x x x the holding of a free, orderly and honest election should become
impossible in any political subdivision x x x."[76] The tight timeframe in the enactment and signing into
law of RA 10153 on 30 June 2011, and the filing of the present petitions shortly before and after the
signing, rendering impossible the holding of elections on 8 August 2011 as scheduled under RA 9333, is a
cause analogous to the administrative mishaps covered in Section 5 of BP 881. The postponement of the
ARMM elections was an unavoidable result of the time lag legislative and judicial processes normally
entail. The ARMM officials to be elected in the special ARMM elections shall hold office until 30 June
2013, when the terms of office of elective national and local officials covered by the synchronized
elections also expire.

Electoral and Other Reforms Must be Consistent

With Principles of Regional Autonomy and

Representative Democracy

Beyond the expressly stated policy in RA 10153 of synchronizing national and local elections, the OSG
calls the Court's attention to the government's other policy goals in enacting RA 10153. The OSG
presents RA 10153 as the cure for the ills plaguing the ARMM, manifested in the symptoms of padded
voters' list, rampant criminality and highly dynastic politics, among others. "Genuine regional
autonomy," in the OSG's view, starts upon the assumption to office of the newly elected officials on 30
June 2013, when the national government, through the OICs, is done cleaning the ARMM government.
[77]

In the first place, these policy goals to reform the ARMM society are nowhere stated or even implied in
RA 10153. Electoral reform is mentioned in the President's certification on the urgency of HB 4146 and
SB 2756 but RA 10153 itself is silent on such policy goal. The only apparent reason for the enactment of
RA 10153 is to synchronize the ARMM elections with the national and local elections, a policy the
legislature can pursue even in the absence of a constitutional directive to synchronize all elections.
In any event, it is a terribly dangerous precedent for this Court to legitimize the cancelation of scheduled
local elections in the ARMM and allow the appointment of OICs in place of elected local officials for the
purpose of reforming the ARMM society and curing all social, political and economic ills plaguing it. If
this can be done to the ARMM, it can also be done to other regions, provinces, cities and municipalities,
and worse, it can even be done to the entire Philippines: cancel scheduled elections, appoint OICs in
place of elective officials, all for the ostensible purpose of reforming society - a purpose that is
perpetually a work-in-progress. This Court cannot allow itself to be co-opted into such a social re-
engineering in clear violation of the Constitution.

One has to see the problem in the Muslim South in the larger canvass of the Filipino Muslims' centuries-
old struggle for self-determination. The Muslim problem in southern Mindanao is rooted on the
Philippine State's failure to craft solutions sensitive to the Filipino Muslims' "common and distinctive
historical and cultural heritage, economic and social structures, and other relevant characteristics."[78]
The framers of the 1987 Constitution, for the first time, recognized these causes and devised a solution
by mandating the creation of an autonomous region in Muslim Mindanao, a political accommodation
radically vesting State powers to the region, save those withheld by the Constitution and national laws.
[79] Lying at the heart of this unprecedented empowerment is the Constitution's guarantee that the
executive and legislative offices of the autonomous region shall be "be elective and representative of the
constituent political units."[80] The essence of an autonomous region is the untrammeled right of the
people in the region to freely choose those who will govern them. A region is not autonomous if its
leaders are not elected by the people of the region but appointed by the central government in Manila.
It is the solemn duty of this Court to uphold the genuine autonomy of the ARMM as crafted by the
framers and enshrined in the Constitution. Otherwise, our Muslim brothers in the South who justifiably
seek genuine autonomy for their region would find no peaceful solution under the Constitution.

By disenfranchising voters in the ARMM, even for a single electoral cycle, denying them their
fundamental right of electing their leaders and representatives, RA 10153 strikes at the heart of the
Constitution's project of creating autonomous regions. In the opinion of the biggest Islamic rebel group
in the region, the cancelation of elections under RA 10153 "speaks loudly why this entity [ARMM] is not
autonomous; it is controlled, nay dictated, by Manila."[81] Contrary to the OSG's view, denial of the right
of suffrage is always too high a price to pay in exchange for promised reforms to be undertaken by OICs
with no mandate from the people. Incidentally, the OICs to be appointed under RA 10153 are not even
barred from running in the next ARMM elections, immediately putting at risk the promised reforms due
to obvious conflict of interest.

The ARMM enjoys no monopoly of the evils the government now belatedly claims it wants to eradicate
in passing RA 10153. Private armies and political dynasties litter the length and breadth of this
archipelago and spurious voters' registration has perennially polluted the national voters' list. The
solutions to these problems lie not in tinkering with democratic processes but in addressing their root
causes. Notably, the government recently upgraded the country's age-old manual elections into an
automated system, ridding the elections of the fraud-prone manual system, without skipping a single
electoral cycle. Similarly, the cleansing of the voters' list is on track, with the incumbent head of
respondent COMELEC himself admitting that the COMELEC is now 65%-70% done with biometrics
registration.[82]

In reviewing legislative measures impinging on core constitutional principles such as democratic

republicanism, the Court, as the last bulwark of democracy, must necessarily be deontological. The Court
must determine the constitutionality of a law based on the law's adherence to the Constitution, not on
the law's supposed beneficial consequences. The laudable ends of legislative measures cannot justify the
denial, even if temporal, of the sovereign people's constitutional right of suffrage -- to choose freely and
periodically "those whom they please to govern them."[83] The Court should strike a balance between
upholding constitutional imperatives on regional autonomy and republican democratic principles, on the
one hand, and the incumbent administration's legislative initiative to synchronize elections, on the other
hand. Had it done so here, the Court would have faithfully performed its sworn duty to protect and
uphold the Constitution without fear or favor.

Accordingly, I vote to GRANT in part the petitions in G.R. Nos. 196271, 197221, 197280, 197282, 197392
and 197454 and declare UNCONSTITUTIONAL Sections 3, 4 and 5 of Republic Act No. 10153. Respondent
Commission on Elections should be ordered to hold, as soon as possible, special elections in the
Autonomous Region in Muslim Mindanao for the positions of Governor, Vice-Governor and members of
the Regional Legislative Assembly. The officials elected in the special elections should hold office until 30
June 2013. Pending the holding of special elections and the assumption to office of the elected ARMM
Governor, the President may appoint an officer-in-charge in the office of the ARMM Governor.

I further vote to declare UNCONSTITUTIONAL the second sentence of Section 7(1), Article VII and
Sections 1 and 3, Article XVII of Republic Act No. 9054.

Endnotes:

[1] For the writs of certiorari, prohibition and mandamus.

[2] Section 7, Article XVIII of RA 9054.

[3] Section 4, Article VI and Section 7, Article VII of RA 9054.

[4] Section 2 of RA 9140 provides: "First Regular Election. - The first regular election for Regional
Governor, Vice-Governor and Members of the Regional Legislative Assembly under Republic Act No.
9054 shall be held on November 26, 2001."

[5] Section 1 of RA 9333 provides: "Date of Election. - The regular election for regional Governor and
Regional Vice-Governor and Members of the Regional Legislative Assembly of the Autonomous Region in
Muslim Mindanao (ARMM) shall be held on the second Monday of August 2005. Succeeding regular
elections shall be held on the same date every three years thereafter." RA 9333 took effect upon its
publication on 29 September 2004.

[6] Section 1 of HB 4146 provides: "Regular Elections. - For purposes of synchronization of elections,
which is envisioned by the 1987 Constitution, the regular elections for the Regional Governor, Regional
Vice-Governor and Members of the Regional Legislative Assembly of the Autonomous Region in Muslim
Mindanao (ARMM) shall be held on the second (2nd) Monday of May 2013. Succeeding regular elections
shall be held on the same date every three (3) years thereafter."

[7] G.R. Nos. 197221, 197280, 197282, 197392 and 196271 (in a supplemental petition).

[8] These provide:

Section 1. Consistent with the provisions of the Constitution, this Organic Act may be reamended or
revised by the Congress of the Philippines upon a vote of two-thirds (2/3) of the Members of the House
of Representatives and of the Senate voting separately.

Section 3. Any amendment to or revision of this Organic Act shall become effective only when approved
by a majority of the vote cast in a plebiscite called for the purpose, which shall be held not earlier than
sixty (60) days or later than ninety (90) days after the approval of such amendment or revision.

[9] G.R. Nos. 197221, 197392, and 197454.

[10] G.R. Nos. 196271 and 196305.

[11] G.R. No. 197280.

[12] Petition (G.R. No. 197282), p. 29. The petitioner proceeds from the theory that although
unconstitutional, RA 9333 was validated by acquiescence. On the other hand, if the Court were to strike
down RA 9333, it is impossible to comply with the election scheduled under RA 9054, the last cycle of
which allegedly fell on the second Monday of September 2010.

In their Memoranda, the petitioners in G.R. Nos. 196271, G.R. No. 196305, and 197280, conceding the
impracticality of holding elections on the second Monday of September this year as they initially
espoused, called for the holding of special elections nearest to that schedule or at least this year.
(Memorandum [G.R. No. 196271], p. 47; Memorandum [G.R. No. 196305], p. 49; Memorandum [G.R.
No. 197280], p. 25).

Similarly, the petitioners G.R. No. 197221 and G.R. No. 197454, who initially favored holding the
elections on the second Monday of August 2011, prayed in their Memoranda that the elections be held
as soon as possible. (Memorandum [G.R. No. 197221], p. 76l; Memorandum [G.R. No. 197454, p. 22).

[13] Comment (Senate), pp. 5-7.

[14] Macalawi v. Brillantes, G.R. No. 196270, 31 May 2011, Resolution dismissing for prematurity a
petition questioning the validity of HB 4146 and SB 2756; Montesclaros v. COMELEC, 433 Phil. 620
(2002).

[15] Rollo (G.R. No. 197280), pp. 28-30.

[16] G.R. No. 115455, 25 August 1994, 235 SCRA 630, 666.

[17] Petitioners in G.R. No. 196271 belatedly joined the petitioners in G.R. No. 197280 on this issue,
arguing for the first time in their Memorandum that heightened scrutiny of the President's certification is
warranted because the right to suffrage is basic, thus falling under Tolentino's exemption (Memorandum
[G.R. No. 196271], pp. 18-19). The question whether the right to suffrage is fundamental for purposes of
using strict scrutiny to review the sufficiency of the factual bases of executive and legislative acts has
never been raised before the Court. Our jurisprudence merely advert to the rule in the United States
treating such right as fundamental (see e.g. White Light Corporation v. City of Manila, G.R. No. 122846,
20 January 2009, 576 SCRA 416 [reviewing an ordinance prohibiting the certain business practices of
motels and similar establishments]; Serrano v. Gallant Maritime Services, Inc., G.R. No. 167614, 24
March 2009, 582 SCRA 254 [reviewing a statutory rule on the reimbursement of placement fees of
overseas workers]) or state such rule as dicta (see e.g. ABS-CBN Broadcasting Corporation v. Commission
on Elections, 380 Phil. 780 (2000) [reviewing the constitutionality of a regulation prohibiting the conduct
of exit polls]). At any rate, Tolentino's exemption relates to "basic rights" put at hazard following the
suspension of the writ of habeas corpus or declaration of martial law under Art. VII, § 18, or during the
existence of a national emergency under Art. VI, § 23(2) such as the right against illegal arrests and
detentions, right to free speech, assembly and of the press, and right against torture. The right to
suffrage lies far afield from this core of fundamental rights the Constitution protects in times of national
emergency, war or national security crisis by requiring heightened judicial scrutiny of the assailed
measure.

[18] Under Section 7, Article VII of RA 9054.

[19] See Republic Act No. 7647, Republic Act No. 8176, Republic Act No. 8746, Republic Act No. 8753,
Republic Act No. 8953, and Republic Act No. 9012.

[20] Memorandum (G.R. No. 197280), pp. 17-28, 52.

[21] Section 16(2), Article VI of the Constitution.

[22] Section 28(4), Article VI of the Constitution provides: "No law granting any tax exemption shall be
passed without the concurrence of a majority of all the Members of Congress." Thus, the rule of a
"majority of a majority" to enact, amend or repeal laws does not apply to the grant of tax exemptions.
For other cases requiring a qualified or supermajority of Congress, see note 26.

[23] This is the majority of a quorum of 143. Although the House of Representatives has a total of 285
members, only 284 is considered for quorum purposes.

[24] This is the majority of a quorum of 12. The Senate currently has 23 members.

[25] Asociacion De Agricultores De Talisay-Silay, Inc. v. Talisay-Silay Milling Co., Inc., 177 Phil. 247 (1979).

[26] The 1987 Constitution requires a qualified or supermajority vote in certain instances, none of which,
however, relates to the amendment or repeal of the organic act of the autonomous regions [See Section
23(1), Article VI (to declare war); Section 28(4), Article VI (to grant tax exemption); Section 16(3), Article
VI (to expel or suspend a member of either House of Congress); Section 11, Article VII (to break an
impasse between the cabinet and the President on the latter's capacity to discharge the powers and
duties of his office); Section 21, Article VII (for the Senate to concur in treaty ratification); Section 3(6),
Article XI (for the Senate to impeach the President); Section 3, Article XVII (to call a constitutional
convention)].

[27] Memorandum (G.R. No. 197221), p. 22. The petitioners in G.R. No. 197280 also adopt this view
(Memorandum [G.R. No. 197280], p. 46).

[28] Or an item or items in an appropriation, revenue or tariff bill. See Section 27(2), Article VI of the
Constitution.

[29] "Section 10. No province, city, municipality, or barangay may be created, divided, merged,
abolished, or its boundary substantially altered, except in accordance with the criteria established in the
local government code and subject to approval by a majority of the votes cast in a plebiscite in the
political units directly affected." In Miranda v. Aguirre, 373 Phil. 386 (1999), the Court extended the
plebiscite requirement in the downgrading of a city's status from independent to component city.

[30] In local governance, the plebiscite is seen as a check "against the pernicious practice of
gerrymandering." Miranda v. Aguirre, supra at 405.

[31] Taken to its logical extreme, petitioners' interpretation leads to preposterous scenarios. The smallest
change to RA 9054 such as mandating its official promulgation (not just translation) into all native
dialects widely spoken in the region, amending Section 6, Article VI for the purpose, will be subjected to
the rigors and expense of a plebiscite.

[32] G.R. No. 149848, 25 November 2004, 444 SCRA 203.

[33] Id. at 225.

[34] Id. at 249.

[35] Under Section 2 ("The Senators, Members of the House of Representatives, and the local officials
first elected under this Constitution shall serve until noon of June 30, 1992.") and Section 5 ("The six-
year term of the incumbent President and Vice-President elected in the February 7, 1986 election is, for
purposes of synchronization of elections, hereby extended to noon of June 30, 1992. The first regular
elections for the President and Vice-President under this Constitution shall be held on the second
Monday of May, 1992."), Article XVIII.

[36] G.R. No. 100318, 30 July 1991, 199 SCRA 750.

[37] Id. at 762.

[38] Under Section 8, Article X of the Constitution, "[t]he term of office of elective local officials x x x shall
be three years," except for barangay officials whose term of office is fixed by law.

[39] Rollo (G.R. No. 196271 Supplemental Petition), p. 20.

[40] See Sections 15, 16, 17, 18, 19, 20 and 21, Article X of the Constitution.

[41] Section 7, Article VII of RA 9054.

[42] Section 1, Article II of the Constitution.

[43] G.R. Nos. 197221 and 197282.

[44] Republic Act No. 9495 (RA 9495). The creation of Quezon del Sur Province was rejected by the
voters of Quezon Province in the plebiscite of 13 November 2008.

[45] Republic Act No. 9355 (RA 9355).

[46] Section 50 of 9355 and Section 52 of RA 9495 (emphasis supplied).

47 Presidential Decree No. 407, Section 3 (emphasis supplied).

[48] Section 462, paragraph 3 of Republic Act No. 7160 (RA 7160) provides: "The incumbent elected
officials of the said subprovinces converted into regular provinces shall continue to hold office until June
30, 1992. Any vacancy occurring in the offices occupied by said incumbent elected officials, or resulting
from expiration of their terms of office in case of a negative vote in the plebiscite results, shall be filled
by appointment by the President. The appointees shall hold office until their successors shall have been
elected in the regular local elections following the plebiscite mentioned herein and qualified. After
effectivity of such conversion, the President shall fill up the position of governor of the newly-created
province through appointment if none has yet been appointed to the same as hereinbefore provided,
and shall also appoint a vice-governor and the other members of the sangguniang panlalawigan, all of
whom shall likewise hold office until their successors shall have been elected in the next regular local
elections and qualified." (Emphasis supplied)

[49] Section 4 provides: "Manner and Procedure of Appointing Officers-in-Charge.--There shall be

created a screening committee, whose members shall be appointed by the President, which shall screen
and recommend, in consultation with the Speaker of the House of Representatives and the Senate
President, the persons who will be appointed as Officers-in-Charge."

[50] Section 5 reads: "Qualifications.--No person shall be appointed officer-in-charge unless he or she
complies with the qualifications for Regional Governor, Regional Vice Governor or Members of the
Regional Legislative Assembly of the ARMM, as provided in Republic Act No. 6734, entitled: `An Act
Providing for an Organic Act for the Autonomous Region in Muslim Mindanao', as amended by Republic
Act No. 9054, entitled: `An Act to Strengthen and Expand the Organic Act for the Autonomous Region in
Muslim Mindanao, Amending for the Purpose Republic Act No. 6734."'

[51] Expressed in Section 1, Article II of the Constitution: "The Philippines is a democratic and republican
State. x x x"

[52] Paragraph 1, Section 18, Article X of the Constitution provides: "The Congress shall enact an organic
act for each autonomous region with the assistance and participation of the regional consultative
commission composed of representatives appointed by the President from a list of nominees from multi-
sectoral bodies. The organic act shall define the basic structure of government for the region consisting
of the executive department and legislative assembly, both of which shall be elective and representative
of the constituent political units. The organic acts shall likewise provide for special courts with personal,
family, and property law jurisdiction consistent with the provisions of this Constitution and national
laws."

[53] Section 2, Article VI and Sections 1 and 4, Article VII of RA 9054.

[54] OSG Memorandum, p. 46. The provision states: "Until a law is passed, the President may fill by
appointment from a list of nominees by the respective sectors, the seats reserved for sectoral
representation in paragraph (2), Section 5 of Article V1 of this Constitution."

[55] Section 2, Article III of the Freedom Constitution provides: "All elective and appointive officials and
employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation
or executive order or upon the designation or appointment and qualification of their successors, if such
is made within a period of one year from February 25, 1986."

[56] This provides: "Budget Approval; Automatic Reenactment. - The Regional Governor shall approve
the budget of the autonomous region within one (1) month from its passage by the Regional Assembly.
If, by the end of a fiscal year, the Regional Assembly shall have failed to pass the regional appropriations
bill for the ensuing fiscal year, the Regional Appropriations Act for the preceding fiscal year shall be
deemed automatically reenacted and shall remain in force and effect until the regional appropriations
bill is passed by the Regional Assembly."

[57] Under Section 4 of RA 7160, which provides: "Scope of Application. - This Code shall apply to all
provinces, cities, municipalities, barangays, and other political subdivisions as may be created by law,
and, to the extent herein provided, to officials, offices, or agencies of the national government."
(Emphasis supplied)

[58] Under the first paragraph of Section 323 of RA 7160 which provides: "Failure to Enact the Annual
Appropriations. - In case the sanggunian concerned fails to pass the ordinance authorizing the annual
appropriations at the beginning of the ensuing fiscal year, it shall continue to hold sessions, without
additional remuneration for its members, until such ordinance is approved, and no other business may
be taken up during such sessions. If the sanggunian still fails to enact such ordinance after ninety (90)
days from the beginning of the fiscal year, the ordinance authorizing the appropriations of the preceding
year shall be deemed reenacted and shall remain in force and effect until the ordinance authorizing the
proposed appropriations is passed by the sanggunian concerned. However, only the annual
appropriations for salaries and wages of existing positions, statutory and contractual obligations, and
essential operating expenses authorized in the annual and supplemental budgets for the preceding year
shall be deemed reenacted and disbursement of funds shall be in accordance therewith." x x x x
(Emphasis supplied)

[59] A substantially similar provision is found in Section 8, Article XVIII of RA 9054 which provides: "The
incumbent Regional Governor, Regional Vice Governor, and members of the Regional Legislative
Assembly of the Autonomous Region in Muslim Mindanao shall continue in office pursuant to existing
laws and until their successors shall have been duly elected and qualified."
[60] E.g. Bangsamoro Solidarity Movement, Inc. and Minority Rights Forum Philippines, Inc.

[61] See Sema v. Commission on Elections, G.R. No. 177597, 16 July 2008, 558 SCRA 700; Paras v.
Commission on Elections, 332 Phil. 56, 66 (1996), Davide, J., concurring.

[62] Section 7, Article VII of RA 9054.

[63] G.R. No. 100318, 30 July 1991, 199 SCRA 750, 763 (internal citations omitted).

[64] See Board of Elections for Franklin County v. State ex. rel. Schneider, 128 Ohio St. 273, 191 N.E. 115
(1934).

[65] Id.

[66] This contrasts with some state constitutions in the United States which allow the hold over of
elective officials.

[67] Section 4, Article VII.

[68] Section 4, Article VII.

[69] Section 4, Article VI. Under RA 7166, Senatorial term commences on 30 June following the elections.

[70] Section 7, Article VI. Under RA 7166, Congressional term commences on 30 June following the
elections.

[71] Section 8, Article X.

[72] The Code's implementing rules (Section 210(d)(3)) extended the term of the heads of the barangay
leagues as ex officio members of sanggunians until 31 May 1994, when their term as punong barangays
end under Republic Act No. 6679 (RA 6679). The extension of the ex officio term of these barangay
officials, which the Court upheld in Galarosa v. Valencia, G.R. No. 109455, 11 November 1993, 227 SCRA
728, was rendered necessary by the different length of terms of elective barangay officials under RA
6679 (five years starting 1 May 1989) and other elective local officials under the Code (three years
starting 30 June 1992). RA 9164 subsequently shortened the term of elective barangay officials to three
years.

The 1917 Revised Administrative Code authorized elective provincial and municipal officials to "hold over
until a successor shall be duly qualified." (under Sections 2074 and 2177, respectively). These provisions
were, however, repealed by Commonwealth Act No. 357 (under Section 184).

[73] G.R. No. 160427, 15 September 2004, 438 SCRA 319, reiterated in Adap v. COMELEC, G.R. No.
161984, 21 February 2007, 516 SCRA 403. In Montesclaros v. COMELEC, 433 Phil. 620, 640 (2002), the
Court dismissed a premature challenge against the legislative bills for RA 9164 as they relate to
sangguniang kabataan members.

[74] Under Republic Act No. 7647, Republic Act No. 8746, Republic Act No. 8753, Republic Act No. 8953,
and Republic Act No. 9140.

[75] The cases invoked by the petitioner in G.R. No. 197282, namely, Sambarani v. Commission on
Elections, G.R. No. 160427, 15 September 2004, 438 SCRA 319 and Adap v. Commission on Elections,
G.R. No. 161984, 21 February 2007, 516 SCRA 403, are not in point. They all involve barangay officials,
whose term of office is fixed by law, not by the Constitution.

[76] The provision reads in full: "Sec. 5. Postponement of election. - When for any serious cause such as
violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, and other
analogous causes of such a nature that the holding of a free, orderly and honest election should become
impossible in any political subdivision, the Commission, motu proprio or upon a verified petition by any
interested party, and after due notice and hearing, whereby all interested parties are afforded equal
opportunity to be heard, shall postpone the election therein to a date which should be reasonably close
to the date of the election not held, suspended or which resulted in a failure to elect but not later than
thirty days after the cessation of the cause for such postponement or suspension of the election or
failure to elect."

[77] OSG Memorandum, pp. 5-6, 50-58.

[78] Section 15, Article X of the Constitution.

[79] Section 20, Article X of the Constitution enumerates these powers, thus:

Section 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and
national laws, the organic act of autonomous regions shall provide for legislative powers over:

1. Administrative organization;

2. Creation of sources of revenues;

3. Ancestral domain and natural resources;

4. Personal, family, and property relations;

5. Regional urban and rural planning development;

6. Economic, social, and tourism development;

7. Educational policies;

8. Preservation and development of the cultural heritage; and

9. Such other matters as may be authorized by law for the promotion of the general welfare of the
people of the region.

Section 17, Article X provides: "All powers, functions, and responsibilities not granted by this
Constitution or by law to the autonomous regions shall be vested in the National Government."
[80] Section 18, Article X of the Constitution.

[81] "MILF To Fight For Self-Determination" reported in http://mindanaoexaminer.com/news.php? news

_id=20110810014922 (last visited on 16 September 2011).

[82] OSG Memorandum, p. 6.

[83] Borja v. Commission on Elections, 356 Phil. 467, 475 (1998) citing U.S. Term Limits, Inc. v. Thornton,
514 U.S. 779, 131 L.Ed.2d 881 (1995).

DISSENTING OPINION

VELASCO, JR., J.:

I join Justice Carpio's dissent and agree that the "[C]ongress' power to provide for the simultaneous
holding of elections for national and local officials x x x does not encompass the power to authorize the
President to appoint officers-in-charge in place of elective officials x x x. To hold otherwise is to sanction
the perversion of the Philippine State's democratic and republican nature," and so sustain the holdover
of the incumbent ARMM officials pending the election and qualification of their successors.

At bar are original actions assailing the validity of statutes and bills on the holding of elections in the
Autonomous Region in Muslim Mindanao (ARMM), the latest of which is Republic Act No. (RA) 10153
entitled An Act Providing for the Synchronization of the Elections in the Autonomous Region In Muslim
Mindanao (ARMM) with the National and Local Elections and for Other Purposes. RA 10153 provides, in
part:
SECTION 1. Declaration of Policy.- In accordance with the intent and mandate of the Constitution and
Republic Act No. 7166, entitled: "An Act Providing for Synchronized National and Local Elections and for
Electoral Reforms, Authorizing Appropriations Therefor, and for Other Purposes", it is hereby declared
the policy of the State to synchronize national and local elections. Pursuant thereto, the elections in the
Autonomous Region in Muslim Mindanao (ARMM) is hereby synchronized with the national and local
elections as hereinafter provided.

SEC. 2. Regular Elections.- The regular elections for the Regional Governor, Regional Vice Governor and
Members of the Regional Legislative Assembly of the Autonomous Region in Muslim Mindanao (ARMM)
shall be held on the second (2nd) Monday of May 2013. Succeeding regular elections shall be held on
the same date every three (3) years thereafter.

SEC. 3. Appointment of Officers-in-Charge.- The President shall appoint officers-in-charge for the Office
of the Regional Governor, Regional Vice Governor and Members of the Regional Legislative Assembly
who shall perform the functions pertaining to the said offices until the officials duly elected in the May
2013 elections shall have qualified and assumed office.

The petitions assailing the validity of RA 10153 argue that (1) the postponement of the ARMM elections
to the second Monday of May 2013 undermines the republican and autonomous region of the ARMM, in
violation of the Constitution and RA 9054,[1] the expanded organic law of ARMM; and (2) granting the
President the power to appoint OICs unconstitutionally expands his power over the ARMM to
encompass not only general supervision but also control.

The ponencia sustains the constitutionality of RA 10153 in toto, while Justice Carpio's dissent declares
unconstitutional Sections 3, 4, and 5 of RA 10153 authorizing the President to appoint OICs in place of
elective ARMM officials, ordering instead the respondent COMELEC "to hold special elections in the
ARMM as soon as possible." On this, I am in full agreement with Justice Carpio's dissent.

But unlike Justice Carpio's curious proposal that in the interregnum and pending the holding of special
elections, the President has the power to appoint an OIC in the Office of the ARMM Governor, I differ
and vote for the holding over of the incumbent pursuant to Sec. 7(1), Article VII of RA 9054, which states:

Sec. 7. Terms of Office of Elective Regional Officials. - (1) Terms of Office. The terms of office of the
Regional Governor, Regional Vice Governor and members of the Regional Assembly shall be for a period
of three (3) years, which shall begin at noon on the 30th day of September next following the day of the
election and shall end at noon of the same date three (3) years thereafter. The incumbent elective
officials of the autonomous region shall continue in effect until their successors are elected and
qualified. (Emphasis supplied.)
The ponencia holds that the foregoing provision is unconstitutional in accordance with our previous
ruling in Osmeña v. COMELEC.[2] However, it must be noted that the issue in Osmeña on the power of
local elective officials to hold on to their respective positions pending the election of their successors
was not the very lis mota of the case. The main issue in Osmeña was the proposed desynchronization
of the elections. Hence, the statement on the issue of holdover can be considered a mere obiter dictum
that cannot be held a binding judicial precedent.

To recall, in Osmeña, the Congress enacted RA 7056, entitled An Act Providing for the National and Local
Elections in 1992, Paving the Way for Synchronized and Simultaneous Elections beginning 1995, and
Authorizing Appropriations Therefor. Sec. 2 provided for two (2) separate elections in 1992 as follows:

Section 2. Start of Synchronization. - To start the process of synchronization of elections in accordance

with the policy herein before declared, there shall be held.

(a) An election for President and Vice-President of the Philippines, twenty-four (24) Senators, and all
elective Members of the House of Representatives on the second Monday of May 1992; and

(b) An election of all provincial, city, and municipal elective officials on the second Monday of November
1992. (Emphasis supplied.)

Hence, the Court struck down RA 7056 on the principal ground that it occasioned a desynchronized
election, viz:

With the clear mandate of the 1987 Constitution to hold synchronized (simultaneous) national and local
elections in the second Monday of May, 1992, the inevitable conclusion would be that Republic Act 7056
is clearly violative of the Constitution because it provides for the holding of a desynchronized election.
Stated differently, Republic Act 7056 particularly Sections 1 and 2 thereof contravenes Article XVIII,
Sections 2 and 5 of the 1987 Constitution. (Emphasis supplied.)

Clearly, the determination of the validity of RA 7056 in Osmeña relied mainly on the resolution of the
issue of the postponement of elections, and the judicial opinion on the issue of holdover was not
necessary for the disposition of the case. Since an opinion expressed by the Court in the decision upon a
cause "by the way" -- i.e., incidentally or collaterally, and not directly upon the question before it �is
not a binding precedent,[3] the obiter dictum of the Court in Osmeña on the issue of holdover is not a
binding judicial doctrine material to the resolution of the issue on desynchronization.
Nonetheless, even assuming that the pronouncement in Osmeña v. COMELEC on the issue of holdover is
not an obiter dictum, the facts of the present case do not justify a similar conclusion, since the rule of
stare decisis et non quieta movere states that a principle of law laid down by the court as applicable to a
certain state of facts will only be applied to cases involving the same facts.[4]

A comparison of the factual milieu in Osmeña and the instant petition reveals an ocean of dissimilarities.
In Osmeña, RA 7065 provided for synchronization of the national and local elections in 1995 but it also
prescribed that the national elections will be held in May, 1992 while the local elections will be held in
November 1992. There is also no provision for the President to appoint OICs. Meanwhile, in RA 10153,
the law provided for synchronization in May 2013 but suspended the elections scheduled in August,
2011 and authorized the President to appoint OICs. In view of the substantial and significant differences
in the factual setting of the two cases, then it cannot be gainsaid that the Osmeña ruling is not a
precedent to the instant petitions.

Further, the Court in Osmeña opined that the holdover of elective officials espoused by RA 7065 violated
Sec. 2, Art. XVIII and Sec. 8, Art. X of the Constitution by adopting and applying certain selected
American jurisprudence. The assailed obiter dictum reads:

[T]here are other provisions of the Constitution violated by RA 7056. For one, there is Section 2, Article
XVIII of the Constitution which provides that the local official first elected under the Constitution shall
serve until noon of June 30, 1992. But under Sec. 3 of RA 7056, these incumbent local officials shall hold
over beyond June 30, 1992 and shall serve until their successors shall have been duly elected and
qualified. It has been held that:

It is not competent for the legislature to extend the term of officers by providing that they shall hold
over until their successors are elected and qualified where the constitution has in effect or by clear
implication prescribed the term, (citing State v. Clark 89 A. 172, 87 Conn537) and when the Constitution
fixes the day on which the official term shall begin, there is no legislative authority to continue the office
beyond that period, even though the successors fail to qualify with the time. (See 67 CJS p.379, Citing
Minn.- State v. McIntosh, 122 N.W. 462, Emphasis supplied)

In American Jurisprudence it has been stated as follows:

It has been broadly stated that the legislature cannot, by an act postponing the election to fill an office
the term of which is limited by the Constitution, extend the term of the incumbent beyond the period as
limited by the Constitution. (43 Am Jur., 152, page 13) citing Gemmer v. State, 71 NE 478
Also, there is Section 8, Article X of the Constitution which provides that:

The term of office of elective local officials, except barangay officials which shall be determined by law
shall be three years and no such official shall serve for more than three consecutive terms x x x.

A closer look of the American cases on which the above quoted American Jurisprudence (Am Jur) and
Corpus Juris Secundum (CJS) passages were ultimately based, however, reveals that they do not justify
the conclusions reached in Osmeña and so, with more reason, they are inapplicable to the present case.

The passage quoted from CJS was based on State v. Clark[5] and State v. McIntosh.[6] The 1913 case of
State v. Clark, however, does not have the same factual milieu as Osmeña or this case: the office involved
in State v. Clark was not elective but appointive and a successor has already been appointed.[7] More
importantly, the pivotal issue of the case was whether an appointment for a period beyond the term set
by the constitution vests the appointed official with a de jure, as opposed to a de facto, title to occupy
the office beyond the constitutionally prescribed period.[8] That is not the issue of the present case.

Similarly, State v. McIntosh is not squarely in point with either Osmeña or this case involving as it does
the validity of an act performed by the outgoing members of the board of county commissioners less
than two hours before their successors, who were already elected, were qualified to assume office.[9]
The principal doctrine laid down in State v. McIntosh was the limitation of the acts performed by
outgoing officials to the closing up of pending matters and to matters of necessity, and not to matters
naturally pertaining to the official year. The case did not preclude the possibility of a holdover when no
successor has yet been elected. In fact, the case intimated that the rule is that in the absence of
constitutional restrictions, outgoing officers are entitled to holdover until such time as their successors
will qualify.[10] Thus, the cases of Clark and McIntosh cited in Osmeña are likewise not precedent to the
instant petitions.

Indeed, numerous American cases laid down the rule allowing holdover of officials beyond the term set
by the Constitution as long as there is no constitutional proscription against it. This is obvious in the CJS
passages omitted in Osmeña v. COMELEC. The annotation quoted from 67 CJS 379 in Osmeña on holding
over is incomplete and the full and complete text reads:

It is not competent for the legislature to extend the term of officers by providing that they shall hold
over until their successors are elected and qualified where the constitution has in effect or by clear
implication prescribed the term and when the Constitution fixes the day on which the official term shall
begin, there is no legislative authority to continue the office beyond that period, even though the
successors fail to qualify with the time. (Quoted in Osmeña) When the legislature has the power to fix
the commencement of the term, a provision for holding over under such circumstances is not in
violation of a constitutional provision that the term of no officer shall be extended to a longer period
than that for which he is elected or appointed, and such a provision, contained in an act creating an
office, is not violative of a constitutional provision that the legislature shall not create any office, the
tenure of which shall be longer than a prescribed number of years, when a like provision is in the
constitution.[11] (Emphasis supplied.)

Furthermore, on the specific topic of "holding over," the CJS provides:

The term "holding over" when applied to an officer, implies that the office has a fixed term, and the
incumbent is holding over into the succeeding term. Since the public interest ordinarily requires that
public offices should be filled at all times without interruption, as a general rule, in the absence of an
express or implied constitutional or statutory provision to the contrary, an officer is entitled to hold his
office until his successor is appointed or chosen and has qualified. [12] (Emphasis supplied.)

As previously explained, the annotation that "it is not competent for the legislature to extend the term
of officers by providing that they shall hold over until their successors are elected and qualified where
the constitution has in effect or by clear implication prescribed the term"[13] has no application to the
instant petitions, because the cases of Clark and McIntosh upon which it is anchored are factually
dissimilar to the herein petitions. I point out, however, that the second sentence in the annotation that a
provision for holdover is not unconstitutional when the legislature has the power to fix the
commencement of the term applies squarely to RA 9054, particularly its assailed Sec. 7, Art. VII which, to
reiterate, reads:

SEC. 7. Terms of Office of Elective Regional Officials. - (1) Terms of Office. The terms of office of the
Regional Governor, Regional Vice Governor and members of the Regional Assembly shall be for a period
of three (3) years, which shall begin at noon on the 30th day of September next following the day of the
election and shall end at noon of the same date three (3) years thereafter. The incumbent elective
officials of the autonomous region shall continue in effect until their successors are elected and
qualified. (Emphasis supplied.)

It cannot be disputed that the Organic Act of Muslim Mindanao (RA 6734) did not provide for the
commencement of the term of the Governor, Deputy Governor and the Members of the Regional
Legislative Assembly of ARMM. As such, it falls on the shoulders of Congress to fix the date of elections
which power is concededly legislative in nature. In the exercise of this power, Congress enacted RA 9054
which set the elections of the ARMM officials on the second Monday of September 2001. In addition,
said law, in the aforequoted Sec. 7, Art. VII of said law provided for the holdover of said officials until
their successors shall have been duly elected and qualified. Following the jurisprudence cited in CJS,
then the provision of holdover in Sec. 7, Art. VII of RA 9054 is valid and does not offend the Constitution.
To restate, "when the legislature has the power to fix the commencement of the term, a provision for
holding over under such circumstances is not in violation of a constitutional provision that the term of no
officer shall be extended to a longer period than that for which he is elected or appointed, and such a
provision x x x is not violative of a constitutional provision that the legislature shall not create any office,
the tenure of which shall be longer than a prescribed number of years x x x."[14] Ergo, it is clear as day
that the holdover provision in RA 9054 is valid and constitutional.

More importantly, neither Sec. 2, Art. XVIII or Sec. 8, Art. X of the Constitution contain any provision
against a holdover by an elective local official of his office pending the election and qualification of his
successor. To recall, Sec. 2, Art. XVIII of the Constitution provides:

Section 2. The Senators, Members of the House of Representatives, and the local officials first elected
under this Constitution shall serve until noon of June 30, 1992.

Of the Senators elected in the elections in 1992, the first twelve obtaining the highest number of votes
shall serve for six years and the remaining twelve for three years. (Emphasis supplied.)

Similarly, the absence of any prohibition in Sec. 8, Art. X of the Constitution is clear:

Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three consecutive
terms. Voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for which he was elected.

Thus, the Constitution does not bar a holdover situation. Accordingly, Congress may legislate what
elective positions can be accorded holdover privilege of the incumbent officials.

Also, besides the absence of a constitutional prohibition against a holdover, the legislature was conferred
by the Constitution with (1) the power to create the executive and legislative offices in the ARMM, with
the sole limitation that they be elective and representative, and therefore, (2) the authority to determine
the commencement of the term of the ARMM local officials. Hence, in conformity with the foregoing
American cases, the holdover clause in Sec. 7(1), Art. VII of RA 9054 is constitutional and must be
respected as a valid legislative intent.
Even under the passage quoted by Osmeña from Am Jur, the same conclusion can be reached
considering that it is not disputed in this case that the possibility of holdover by the ARMM officials is
but incidental to the synchronization of the ARMM elections with the national elections. Hence, the
holdover of the incumbent ARMM officials can be sustained. Read in full, the passages from the Am Jur
provide that a holdover occasioned by a legislation postponing an election, which is not passed for the
sole purpose of extending official terms but which merely effects an extension as an incidental result,
[15] is valid:

It has been broadly stated that the legislature cannot, by an act postponing the election to fill an office
the term of which is limited by the Constitution, extend the term of the incumbent beyond the period as
limited by the Constitution. (Quoted in Osmeña). It has been declared, however, that legislation
postponing an election which is not passed for the sole purpose of extending official terms, but which
merely effects an extension as an incidental result, does not affect a legislative appointment of his
successor. In this respect, however, a distinction is sometimes drawn between constitutional and
statutory offices. Postponement of an election by the legislature does not fly in the face of the
Constitution so long as such postponement is reasonable and does not destroy the elective character of
the office affected.[16] (Emphasis supplied.)

The part quoted by Osmeña v. COMELEC does not apply to the case at bar, since the facts of the cases
from which the quoted sentence was culled �Gemmer v. State,[17] State ex rel. Hensley v. Plasters,[18]
and Commonwealth v. Gamble[19]--are not the same as either the facts of Osmeña v. COMELEC or the
present case: in Gemmer v. State the holdover of the officials per se was not declared invalid, rather,
since the date of election was specifically provided in the state's constitution, the court found the
postponement of the elections invalid and unconstitutional and so declared the holdover incidental to
the postponement unnecessary and equally invalid; similarly, State ex rel. Hensley v. Plasters involved a
nullification of the postponement of an election and, hence, the nullification of the incidental holdover;
and Commonwealth v. Gamble principally involved the declaration of the abolition of a judicial office
created by the constitution as an unwarranted intrusion by the legislature into judicial independence.
Clearly, the passage from the Am Jur quoted by Osmeña v. COMELEC and the cases of Gemmer, Hensley,
and Gamble cited in Am Jur cannot be considered applicable to the present case.

Furthermore, it should be considered that a holdover is not technically an extension of the term of the
officer but a recognition of the incumbent as a de facto officer, which is made imperative by the
necessity for a continuous performance of public functions. In State v. Clark, the Supreme Court of Errors
of Connecticut held:

The claim of the respondent that it was his right and his duty to hold over and exercise the duties and
functions of the office after the expiration of his term until his successor should be appointed may be
conceded. The public interest requires that such officers shall hold over when no successor is ready and
qualified to fill the office x x x. The rule has grown out of the necessities of the case, so that there may be
no time when such offices shall be without an incumbent. But such hold-over incumbent is not a de jure
officer. He is in for no term, but holds the office only temporarily until the vacancy can be filled by
competent authority x x x.[20] (Emphasis supplied.)

Thus, considering the weight of authority and the circumstances of the present case, the incumbent
ARMM officials have the right, as well as the duty, to continue in office under the principle of holdover
pending the holding of the special elections and the election and qualification of their successors. This is
to prevent a vacuum in the government services. It is imperative that there shall be continuity in the vital
services so as not to prejudice the public in general. In Adap v. COMELEC,[21] it was held that "the
application of the holdover principle preserves continuity in the transaction of official business and
prevents hiatus in government pending the assumption of a successor into office." In Topacio Nuevo v.
Angeles,[22] the Court explained that cases of extreme necessity justify the application of the holdover
principle.

The majority is of the view that if a public office is created by the Constitution with a fixed term or if the
term of a public office created by Congress is fixed by the Constitution, Congress is devoid of any power
to change the term of that office. Hence, the holdover of the incumbent officials which amounts to an
appointment by Congress is unconstitutional. I beg to disagree. RA 9054, by providing a holdover of the
incumbent officials did NOT extend the term of said officials. RA 9054 is clear and devoid of any
equivocation. The law merely provided for a procedure in case the scheduled elections for one reason or
another do not push through and COMELEC resets the elections pursuant to its power under Sec. 5 of
the Omnibus Election Code (Batas Pambansa Blg. 881). The possibility of a vacuum in the performance of
essential government services is addressed by the holdover provision to avoid any uncertainty, as in this
case, as to the procedure on how the gap is resolved in determining the interim official who will perform
the functions of the incumbent. As aptly pointed out by Justice Carpio in his dissent, the necessity of
providing for a successor in the office contested in the last elections in case of failure of elections is
"absolutely necessary and unavoidable to keep functioning essential government services."

And to reiterate a previous point, a holdover is not technically an extension of the term of a sitting officer
but a recognition of the incumbent as a de facto officer made necessary to obviate a detrimental hiatus
in public service.

A scenario where Congress passes a law that provides holdover for all the elective officials (except
barangay officials) from President down to the local officials is flawed in the sense that if the President
does not qualify, Sec. 7, Art. VII of the Constitution kicks in. However, we can concede that Congress may
so provide if the President is not elected. In this factual setting, it is claimed that the Congress has
arrogated to itself the power to lengthen the terms of office of said officials in contravention of the
Constitution. Again, I submit that the power of holdover in the imagined statute does NOT lengthen the
prescribed terms of offices of said officials under the Constitution, unless said law also postpones the
elections as in RA 10153. In such a case, I agree that the postponement of the elections and the
attendant holdover provision are clear contraventions of the basic law. In RA 9054, however, the
elections are fixed but with the corollary holdover provision in case elections are not held. To me, this is
perfectly valid and constitutional. To reiterate, the holdover provision has no relevance to the prescribed
terms of offices in the Constitution and is simply a temporary measure to avoid a vacuum in the office.

Further, while the Local Government Code does not authorize the holdover of elective officials, there is
nothing to prevent Congress from subsequently enacting a law that effectively amends the general law
for local governments and empowers, pursuant to its law making power under the Constitution, local
officials to hold over in case of failure of elections or in case all the elective officials failed to qualify. RA
9054 did not trench on the Constitution, because there is no prohibition in the Constitution against the
holdover of elective officials. Consequently, Congress by law may provide for holdover as it did in RA
9054 and other laws postponing elections in the ARMM, namely, RA 7647, RA 8746, RA 8753, RA 8953
and RA 9140. Over the passage of time, these laws were not assailed as unconstitutional. Even up to the
present time, these laws have not been challenged as void. As a matter of fact, it appears that not one of
the petitioners sought the nullification of RA 9054 as unconstitutional. The Court, without such an issue
being presented in any of these fused petitions, should not declare the assailed portion of RA 9054
unconstitutional. However, even if the Court feels it proper to take the bull by the horns on that issue,
the outcome will be in favor of the validity and constitutionality of Sec. 7, Art. VII of RA 9054.

The alternative choice to allow the President to appoint the ARMM Governor pending the holding of the
special elections is not only intrinsically infirm but also constitutionally invalid for violating the only
limitation provided by the Constitution when it conferred on Congress the power to create the local
offices of the ARMM.

Sec. 18(1), Art. X of the Constitution provides:

The Congress shall enact an organic act for each autonomous region with the assistance and
participation of the regional consultative commission composed of representatives appointed by the
President from a list of nominees from multi-sectoral bodies. The organic act shall define the basic
structure of government for the region consisting of the executive department and legislative assembly,
both of which shall be elective and representative of the constituent political units. The organic acts shall
likewise provide for special courts with personal, family, and property law jurisdiction consistent with the
provisions of this Constitution and national laws. (Emphasis supplied.)

Considering the express requirement that the executive and legislative offices in the ARMM be both
"elective and representative," it should not have even been contemplated to allow the President to
substitute his discretion for the will of the electorate by allowing him to appoint, no matter how briefly,
the ARMM Governor pending the holding of the special elections.
As can be clearly gleaned from Sect. 16, Art. VII of the Constitution, the appointing power of the
President is limited only to appointive offices. Consider:

Section 16. The President shall nominate and, with the consent of the Commission on Appointments,
appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or
boards. (Emphasis supplied.)

Hence, this Court cannot expand the appointing power of the President to encompass offices expressly
required by the Constitution to be "elective and representative." The republican form of government can
only be preserved by ensuring that elective offices can only be filled by persons voted by the electors.

Even the ponencia recognizes that the grant of the power to appoint the ARMM officials to the President
would trample on the democratic and republican nature of our government as "the people's right to
choose the leaders to govern them may be said to be systematically withdrawn to the point of fostering
an undemocratic regime x x x. [It] would likewise frontally breach the "elective and representative"
governance requirement of Section 18 Article X of the Constitution." However, the ponencia evades the
application of its own observation to the present case on the ground that Ã’this conclusion would not be
true under the very limited circumstances contemplated under RA 10153 where the period is fixed and,
more importantly, the terms of governance x x x will not systematically be touched or affected at all."

Clearly, the ponencia has discounted the consequences of this supposedly "limited" enroachment of the
President into the very core of the "elective" and "representative" nature of the offices subject of the
present petitions, which cannot be remedied by provisions setting the manner and procedure for the
appointment of the OICs or their quaifications. The fact still remains that Secs. 3, 4, and 5 of RA 10153
deprive the ARMM electorate of their choice of governors and legislators.

Meanwhile, the holdover provision will not affect the elective and representative nature of the
contested offices. For one, the periodic elections are prescribed by law and must be implemented. Even
if there is failure of elections on the scheduled dates, COMELEC can set another day when it will be held.
With this power of the COMELEC, the elections will, as sure as day, be held. Thus, the assurance of
having an election has no relevance or connection to the holdover provision. The mode of holdover is
merely a stopgap solution whenever elections are not held and only for the period from the date of
failed elections up to the eventual holding of the elections. If we are to ensure democratic values, then
the holding over of a duly elected official is undeniably the proper remedial action than the appointment
of OICs who were not elected by the people and were merely chosen by the President whose choices
may be viewed, rightly or wrongly, as biased, he being the titular head of the administration political
party.

Indeed, the appointment of a person by the President thwarts the popular will by replacing the person
who has been previously elected by the ARMM electorate to govern them. On the other hand, an
approval of the holdover of the incumbents pending the election and qualification of their successsors is
a ratification of the constitutional right of the people of the ARMM to select the their own officials.

With more reason, the authority granted the President to appoint the ARMM Governor cannot be
excused by an expanded interpretation of the President's power of "general supervision" over local
governments in Sec. 4, Art. X of the Constitution, as it is basic that "general supervision" does NOT
authorize the President or any of his alter egos to interfere with local affairs. In Pimentel v. Aguirre,[23]
We explained the scope of the power of the general supervision, thus:

Section 4 of Article X of the Constitution confines the PresidentÕs power over local governments to one
of general supervision. It reads as follows:

"Sec. 4. The President of the Philippines shall exercise general supervision over local governments. x x x"

This provision has been interpreted to exclude the power of control. In Mondano v. Silvosa, the Court
contrasted the President's power of supervision over local government officials with that of his power of
control over executive officials of the national government. It was emphasized that the two terms --
supervision and control -- differed in meaning and extent. The Court distinguished them as follows:

"x x x In administrative law, supervision means overseeing or the power or authority of an officer to see
that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may
take such action or step as prescribed by law to make them perform their duties. Control, on the other
hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer
ha[s] done in the performance of his duties and to substitute the judgment of the former for that of the
latter."

In Taule v. Santos, we further stated that the Chief Executive wielded no more authority than that of
checking whether local governments or their officials were performing their duties as provided by the
fundamental law and by statutes. He cannot interfere with local governments, so long as they act within
the scope of their authority. "Supervisory power, when contrasted with control, is the power of mere
oversight over an inferior body; it does not include any restraining authority over such body," we said.

In a more recent case, Drilon v. Lim, the difference between control and supervision was further
delineated. Officers in control lay down the rules in the performance or accomplishment of an act. If
these rules are not followed, they may, in their discretion, order the act undone or redone by their
subordinates or even decide to do it themselves. On the other hand, supervision does not cover such
authority. Supervising officials merely see to it that the rules are followed, but they themselves do not
lay down such rules, nor do they have the discretion to modify or replace them. If the rules are not
observed, they may order the work done or redone, but only to conform to such rules. They may not
prescribe their own manner of execution of the act. They have no discretion on this matter except to see
to it that the rules are followed.

Under our present system of government, executive power is vested in the President. The members of
the Cabinet and other executive officials are merely alter egos. As such, they are subject to the power of
control of the President, at whose will and behest they can be removed from office; or their actions and
decisions changed, suspended or reversed. In contrast, the heads of political subdivisions are elected by
the people. Their sovereign powers emanate from the electorate, to whom they are directly
accountable. By constitutional fiat, they are subject to the PresidentÕs supervision only, not control, so
long as their acts are exercised within the sphere of their legitimate powers. By the same token, the
President may not withhold or alter any authority or power given them by the Constitution and the law.
(Emphasis supplied.)

Clearly, the President cannot fill the executive and legislative ARMM Offices by appointment, even
temporarily and pending the holding of the special elections. Such action will not only be outside the
scope of his constitutional authority to do so, but also further violates the principle of local autonomy,
nullifies the will of the electorate, and contravenes the only limitation set by the Constitution--that the
offices of the executive and legislative ARMM officials be "elective" and "representative."

Thus, as between the holdover provision per Sec. 7(1), Art. VII of RA 9054 and the nebulous
unconstitutional exercise of the general supervision of the President to appoint the officers of ARMM, I
submit that the holdover provision is undeniably superior, valid, constitutional, and anchored on relevant
constitutional provision, pertinent laws, and foreign and local jurisprudence.

I, therefore, vote to allow the holdover of the ARMM officials pending the holding of the special
elections and the election and qualification of their successors, and for the holding of the special
elections within three (3) months from the finality of the decision. Consequently, Sec. 7(1), Art. VII of RA
9054 is valid and constitutional. In other respects, I join the dissent of Justice Carpio.
 G.R. No. 166715             August 14, 2008

ABAKADA GURO PARTY LIST (formerly AASJS)1 OFFICERS/MEMBERS SAMSON S. ALCANTARA,

ED VINCENT S. ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE and EDWIN R.
SANDOVAL, petitioners,
vs.
HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, HON. GUILLERMO L.
PARAYNO, JR., in his capacity as Commissioner of the Bureau of Internal Revenue, and HON.
ALBERTO D. LINA, in his Capacity as Commissioner of Bureau of Customs, respondents.

DECISION

CORONA, J.:

This petition for prohibition1 seeks to prevent respondents from implementing and enforcing Republic Act
(RA) 93352 (Attrition Act of 2005).

RA 9335 was enacted to optimize the revenue-generation capability and collection of the Bureau of
Internal Revenue (BIR) and the Bureau of Customs (BOC). The law intends to encourage BIR and BOC
officials and employees to exceed their revenue targets by providing a system of rewards and sanctions
through the creation of a Rewards and Incentives Fund (Fund) and a Revenue Performance Evaluation
Board (Board).3 It covers all officials and employees of the BIR and the BOC with at least six months of
service, regardless of employment status.4

The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue targets for the
year, as determined by the Development Budget and Coordinating Committee (DBCC). Any incentive or
reward is taken from the fund and allocated to the BIR and the BOC in proportion to their contribution in
the excess collection of the targeted amount of tax revenue. 5

The Boards in the BIR and the BOC are composed of the Secretary of the Department of Finance (DOF)
or his/her Undersecretary, the Secretary of the Department of Budget and Management (DBM) or his/her
Undersecretary, the Director General of the National Economic Development Authority (NEDA) or his/her
Deputy Director General, the Commissioners of the BIR and the BOC or their Deputy Commissioners, two
representatives from the rank-and-file employees and a representative from the officials nominated by
their recognized organization.6

Each Board has the duty to (1) prescribe the rules and guidelines for the allocation, distribution and
release of the Fund; (2) set criteria and procedures for removing from the service officials and employees
whose revenue collection falls short of the target; (3) terminate personnel in accordance with the criteria
adopted by the Board; (4) prescribe a system for performance evaluation; (5) perform other functions,
including the issuance of rules and regulations and (6) submit an annual report to Congress. 7

The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to promulgate
and issue the implementing rules and regulations of RA 9335, 8 to be approved by a Joint Congressional
Oversight Committee created for such purpose.9

Petitioners, invoking their right as taxpayers filed this petition challenging the constitutionality of RA 9335,
a tax reform legislation. They contend that, by establishing a system of rewards and incentives, the law
"transform[s] the officials and employees of the BIR and the BOC into mercenaries and bounty hunters"
as they will do their best only in consideration of such rewards. Thus, the system of rewards and
incentives invites corruption and undermines the constitutionally mandated duty of these officials and
employees to serve the people with utmost responsibility, integrity, loyalty and efficiency.
Petitioners also claim that limiting the scope of the system of rewards and incentives only to officials and
employees of the BIR and the BOC violates the constitutional guarantee of equal protection. There is no
valid basis for classification or distinction as to why such a system should not apply to officials and
employees of all other government agencies.

In addition, petitioners assert that the law unduly delegates the power to fix revenue targets to the
President as it lacks a sufficient standard on that matter. While Section 7(b) and (c) of RA 9335 provides
that BIR and BOC officials may be dismissed from the service if their revenue collections fall short of the
target by at least 7.5%, the law does not, however, fix the revenue targets to be achieved. Instead, the
fixing of revenue targets has been delegated to the President without sufficient standards. It will therefore
be easy for the President to fix an unrealistic and unattainable target in order to dismiss BIR or BOC
personnel.

Finally, petitioners assail the creation of a congressional oversight committee on the ground that it
violates the doctrine of separation of powers. While the legislative function is deemed accomplished and
completed upon the enactment and approval of the law, the creation of the congressional oversight
committee permits legislative participation in the implementation and enforcement of the law.

In their comment, respondents, through the Office of the Solicitor General, question the petition for being
premature as there is no actual case or controversy yet. Petitioners have not asserted any right or claim
that will necessitate the exercise of this Court’s jurisdiction. Nevertheless, respondents acknowledge that
public policy requires the resolution of the constitutional issues involved in this case. They assert that the
allegation that the reward system will breed mercenaries is mere speculation and does not suffice to
invalidate the law. Seen in conjunction with the declared objective of RA 9335, the law validly classifies
the BIR and the BOC because the functions they perform are distinct from those of the other government
agencies and instrumentalities. Moreover, the law provides a sufficient standard that will guide the
executive in the implementation of its provisions. Lastly, the creation of the congressional oversight
committee under the law enhances, rather than violates, separation of powers. It ensures the fulfillment of
the legislative policy and serves as a check to any over-accumulation of power on the part of the
executive and the implementing agencies.

After a careful consideration of the conflicting contentions of the parties, the Court finds that petitioners
have failed to overcome the presumption of constitutionality in favor of RA 9335, except as shall hereafter
be discussed.

Actual Case And Ripeness

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims
susceptible of judicial adjudication.10 A closely related requirement is ripeness, that is, the question must
be ripe for adjudication. And a constitutional question is ripe for adjudication when the governmental act
being challenged has a direct adverse effect on the individual challenging it. 11 Thus, to be ripe for judicial
adjudication, the petitioner must show a personal stake in the outcome of the case or an injury to himself
that can be redressed by a favorable decision of the Court. 12

In this case, aside from the general claim that the dispute has ripened into a judicial controversy by the
mere enactment of the law even without any further overt act, 13 petitioners fail either to assert any specific
and concrete legal claim or to demonstrate any direct adverse effect of the law on them. They are unable
to show a personal stake in the outcome of this case or an injury to themselves. On this account, their
petition is procedurally infirm.

This notwithstanding, public interest requires the resolution of the constitutional issues raised by
petitioners. The grave nature of their allegations tends to cast a cloud on the presumption of
constitutionality in favor of the law. And where an action of the legislative branch is alleged to have
infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the
dispute.14

Accountability of
Public Officers

Section 1, Article 11 of the Constitution states:

Sec. 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency,
act with patriotism, and justice, and lead modest lives.

Public office is a public trust. It must be discharged by its holder not for his own personal gain but for the
benefit of the public for whom he holds it in trust. By demanding accountability and service with
responsibility, integrity, loyalty, efficiency, patriotism and justice, all government officials and employees
have the duty to be responsive to the needs of the people they are called upon to serve.

Public officers enjoy the presumption of regularity in the performance of their duties. This presumption
necessarily obtains in favor of BIR and BOC officials and employees. RA 9335 operates on the basis
thereof and reinforces it by providing a system of rewards and sanctions for the purpose of encouraging
the officials and employees of the BIR and the BOC to exceed their revenue targets and optimize their
revenue-generation capability and collection.15

The presumption is disputable but proof to the contrary is required to rebut it. It cannot be overturned by
mere conjecture or denied in advance (as petitioners would have the Court do) specially in this case
where it is an underlying principle to advance a declared public policy.

Petitioners’ claim that the implementation of RA 9335 will turn BIR and BOC officials and employees into
"bounty hunters and mercenaries" is not only without any factual and legal basis; it is also purely
speculative.

A law enacted by Congress enjoys the strong presumption of constitutionality. To justify its nullification,
there must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal one. 16 To
invalidate RA 9335 based on petitioners’ baseless supposition is an affront to the wisdom not only of the
legislature that passed it but also of the executive which approved it.

Public service is its own reward. Nevertheless, public officers may by law be rewarded for exemplary and
exceptional performance. A system of incentives for exceeding the set expectations of a public office is
not anathema to the concept of public accountability. In fact, it recognizes and reinforces dedication to
duty, industry, efficiency and loyalty to public service of deserving government personnel.

In United States v. Matthews,17 the U.S. Supreme Court validated a law which awards to officers of the
customs as well as other parties an amount not exceeding one-half of the net proceeds of forfeitures in
violation of the laws against smuggling. Citing Dorsheimer v. United States,18 the U.S. Supreme Court
said:

The offer of a portion of such penalties to the collectors is to stimulate and reward their zeal and
industry in detecting fraudulent attempts to evade payment of duties and taxes.

In the same vein, employees of the BIR and the BOC may by law be entitled to a reward when, as a
consequence of their zeal in the enforcement of tax and customs laws, they exceed their revenue targets.
In addition, RA 9335 establishes safeguards to ensure that the reward will not be claimed if it will be either
the fruit of "bounty hunting or mercenary activity" or the product of the irregular performance of official
duties. One of these precautionary measures is embodied in Section 8 of the law:

SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the BOC. –  The officials,
examiners, and employees of the [BIR] and the [BOC] who violate this Act or who are guilty of
negligence, abuses or acts of malfeasance or misfeasance or fail to exercise extraordinary
diligence in the performance of their duties shall be held liable for any loss or injury suffered by
any business establishment or taxpayer as a result of such violation, negligence, abuse,
malfeasance, misfeasance or failure to exercise extraordinary diligence.

Equal Protection

Equality guaranteed under the equal protection clause is equality under the same conditions and among
persons similarly situated; it is equality among equals, not similarity of treatment of persons who are
classified based on substantial differences in relation to the object to be accomplished. 19 When things or
persons are different in fact or circumstance, they may be treated in law differently. In Victoriano v.
Elizalde Rope Workers’ Union,20 this Court declared:

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

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

In the exercise of its power to make classifications for the purpose of enacting laws over matters
within its jurisdiction, the state is recognized as enjoying a wide range of discretion. It is not
necessary that the classification be based on scientific or marked differences of things or in their
relation. Neither is it necessary that the classification be made with mathematical nicety. Hence,
legislative classification may in many cases properly rest on narrow distinctions, for the equal
protection guaranty does not preclude the legislature from recognizing degrees of evil or harm,
and legislation is addressed to evils as they may appear. 21 (emphasis supplied)

The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable
foundation or rational basis and not arbitrary.22 With respect to RA 9335, its expressed public policy is the
optimization of the revenue-generation capability and collection of the BIR and the BOC. 23 Since the
subject of the law is the revenue- generation capability and collection of the BIR and the BOC, the
incentives and/or sanctions provided in the law should logically pertain to the said agencies. Moreover,
the law concerns only the BIR and the BOC because they have the common distinct primary function of
generating revenues for the national government through the collection of taxes, customs duties, fees and
charges.

The BIR performs the following functions:

Sec. 18. The Bureau of Internal Revenue. – The Bureau of Internal Revenue, which shall be
headed by and subject to the supervision and control of the Commissioner of Internal Revenue,
who shall be appointed by the President upon the recommendation of the Secretary [of the DOF],
shall have the following functions:

(1) Assess and collect all taxes, fees and charges and account for all revenues collected;

(2) Exercise duly delegated police powers for the proper performance of its functions and duties;

(3) Prevent and prosecute tax evasions and all other illegal economic activities;

(4) Exercise supervision and control over its constituent and subordinate units; and

(5) Perform such other functions as may be provided by law. 24

xxx       xxx       xxx (emphasis supplied)

On the other hand, the BOC has the following functions:

Sec. 23. The Bureau of Customs. – The Bureau of Customs which shall be headed and subject to
the management and control of the Commissioner of Customs, who shall be appointed by the
President upon the recommendation of the Secretary[of the DOF] and hereinafter referred to as
Commissioner, shall have the following functions:

(1) Collect custom duties, taxes and the corresponding fees, charges and penalties;

(2) Account for all customs revenues collected;

(3) Exercise police authority for the enforcement of tariff and customs laws;

(4) Prevent and suppress smuggling, pilferage and all other economic frauds within all ports of
entry;

(5) Supervise and control exports, imports, foreign mails and the clearance of vessels and
aircrafts in all ports of entry;

(6) Administer all legal requirements that are appropriate;

(7) Prevent and prosecute smuggling and other illegal activities in all ports under its jurisdiction;

(8) Exercise supervision and control over its constituent units;

(9) Perform such other functions as may be provided by law. 25

xxx       xxx       xxx (emphasis supplied)

Both the BIR and the BOC are bureaus under the DOF. They principally perform the special function of
being the instrumentalities through which the State exercises one of its great inherent functions –
taxation. Indubitably, such substantial distinction is germane and intimately related to the purpose of the
law. Hence, the classification and treatment accorded to the BIR and the BOC under RA 9335 fully satisfy
the demands of equal protection.

Undue Delegation

Two tests determine the validity of delegation of legislative power: (1) the completeness test and (2) the
sufficient standard test. A law is complete when it sets forth therein the policy to be executed, carried out
or implemented by the delegate.26 It lays down a sufficient standard when it provides adequate guidelines
or limitations in the law to map out the boundaries of the delegate’s authority and prevent the delegation
from running riot.27 To be sufficient, the standard must specify the limits of the delegate’s authority,
announce the legislative policy and identify the conditions under which it is to be implemented. 28

RA 9335 adequately states the policy and standards to guide the President in fixing revenue targets and
the implementing agencies in carrying out the provisions of the law. Section 2 spells out the policy of the
law:

SEC. 2. Declaration of Policy. – It is the policy of the State to optimize the revenue-generation
capability and collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs
(BOC) by providing for a system of rewards and sanctions through the creation of a Rewards and
Incentives Fund and a Revenue Performance Evaluation Board in the above agencies for the
purpose of encouraging their officials and employees to exceed their revenue targets.

Section 4 "canalized within banks that keep it from overflowing" 29 the delegated power to the President to
fix revenue targets:

SEC. 4. Rewards and Incentives Fund. – A Rewards and Incentives Fund, hereinafter referred to
as the Fund, is hereby created, to be sourced from the collection of the BIR and the BOC in
excess of their respective revenue targets of the year, as determined by the Development
Budget and Coordinating Committee (DBCC), in the following percentages:

Excess of Collection of the Percent (%) of the Excess Collection to Accrue

Excess the Revenue Targets to the Fund
30% or below – 15%
More than 30% – 15% of the first 30% plus 20% of the
remaining excess

The Fund shall be deemed automatically appropriated the year immediately following the year
when the revenue collection target was exceeded and shall be released on the same fiscal year.

Revenue targets shall refer to the original estimated revenue collection expected of the
BIR and the BOC for a given fiscal year as stated in the Budget of Expenditures and
Sources of Financing (BESF) submitted by the President to Congress. The BIR and the
BOC shall submit to the DBCC the distribution of the agencies’ revenue targets as allocated
among its revenue districts in the case of the BIR, and the collection districts in the case of the
BOC.

xxx       xxx       xxx (emphasis supplied)

Revenue targets are based on the original estimated revenue collection expected respectively of the BIR
and the BOC for a given fiscal year as approved by the DBCC and stated in the BESF submitted by the
President to Congress.30 Thus, the determination of revenue targets does not rest solely on the President
as it also undergoes the scrutiny of the DBCC.

On the other hand, Section 7 specifies the limits of the Board’s authority and identifies the conditions
under which officials and employees whose revenue collection falls short of the target by at least 7.5%
may be removed from the service:

SEC. 7. Powers and Functions of the Board. –  The Board in the agency shall have the following
powers and functions:

xxx       xxx       xxx

(b) To set the criteria and procedures for removing from service officials and employees
whose revenue collection falls short of the target by at least seven and a half percent
(7.5%), with due consideration of all relevant factors affecting the level of collection as
provided in the rules and regulations promulgated under this Act, subject to civil service laws,
rules and regulations and compliance with substantive and procedural due process:
Provided, That the following exemptions shall apply:

1. Where the district or area of responsibility is newly-created, not exceeding two years in
operation, as has no historical record of collection performance that can be used as basis
for evaluation; and

2. Where the revenue or customs official or employee is a recent transferee in the middle
of the period under consideration unless the transfer was due to nonperformance of
revenue targets or potential nonperformance of revenue targets: Provided, however, That
when the district or area of responsibility covered by revenue or customs officials or
employees has suffered from economic difficulties brought about by natural calamities
or force majeure or economic causes as may be determined by the Board, termination
shall be considered only after careful and proper review by the Board.

(c) To terminate personnel in accordance with the criteria adopted in the preceding paragraph:
Provided, That such decision shall be immediately executory: Provided, further, That the
application of the criteria for the separation of an official or employee from service under
this Act shall be without prejudice to the application of other relevant laws on
accountability of public officers and employees, such as the Code of Conduct and Ethical
Standards of Public Officers and Employees and the Anti-Graft and Corrupt Practices Act;

xxx       xxx       xxx (emphasis supplied)

Clearly, RA 9335 in no way violates the security of tenure of officials and employees of the BIR and the
BOC. The guarantee of security of tenure only means that an employee cannot be dismissed from the
service for causes other than those provided by law and only after due process is accorded the
employee.31 In the case of RA 9335, it lays down a reasonable yardstick for removal (when the revenue
collection falls short of the target by at least 7.5%) with due consideration of all relevant factors affecting
the level of collection. This standard is analogous to inefficiency and incompetence in the performance of
official duties, a ground for disciplinary action under civil service laws. 32 The action for removal is also
subject to civil service laws, rules and regulations and compliance with substantive and procedural due
process.

At any rate, this Court has recognized the following as sufficient standards: "public interest," "justice and
equity," "public convenience and welfare" and "simplicity, economy and welfare." 33 In this case, the
declared policy of optimization of the revenue-generation capability and collection of the BIR and the BOC
is infused with public interest.
Separation Of Powers

Section 12 of RA 9335 provides:

SEC. 12. Joint Congressional Oversight Committee. – There is hereby created a Joint

Congressional Oversight Committee composed of seven Members from the Senate and seven
Members from the House of Representatives. The Members from the Senate shall be appointed
by the Senate President, with at least two senators representing the minority. The Members from
the House of Representatives shall be appointed by the Speaker with at least two members
representing the minority. After the Oversight Committee will have approved the implementing
rules and regulations (IRR) it shall thereafter become functus officio and therefore cease to exist.

The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of approving the
implementing rules and regulations (IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On
May 22, 2006, it approved the said IRR. From then on, it became functus officio and ceased to exist.
Hence, the issue of its alleged encroachment on the executive function of implementing and enforcing the
law may be considered moot and academic.

This notwithstanding, this might be as good a time as any for the Court to confront the issue of the
constitutionality of the Joint Congressional Oversight Committee created under RA 9335 (or other similar
laws for that matter).

The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of congressional
oversight in Macalintal v. Commission on Elections34 is illuminating:

Concept and bases of congressional oversight

Broadly defined, the power of oversight embraces all activities undertaken by Congress to

enhance its understanding of and influence over the implementation of legislation it has
enacted. Clearly, oversight concerns post-enactment measures undertaken by Congress:
(a) to monitor bureaucratic compliance with program objectives, (b) to determine whether
agencies are properly administered, (c) to eliminate executive waste and dishonesty, (d) to
prevent executive usurpation of legislative authority, and (d) to assess executive
conformity with the congressional perception of public interest.

The power of oversight has been held to be intrinsic in the grant of legislative power itself and
integral to the checks and balances inherent in a democratic system of government. x x x x x x x
xx

Over the years, Congress has invoked its oversight power with increased frequency to check the
perceived "exponential accumulation of power" by the executive branch. By the beginning of the
20th century, Congress has delegated an enormous amount of legislative authority to the
executive branch and the administrative agencies. Congress, thus, uses its oversight power to
make sure that the administrative agencies perform their functions within the authority delegated
to them. x x x x x x x x x

Categories of congressional oversight functions

The acts done by Congress purportedly in the exercise of its oversight powers may be divided
into three categories, namely: scrutiny, investigation and supervision.

a. Scrutiny
 Congressional scrutiny implies a lesser intensity and continuity of attention to
administrative operations. Its primary purpose is to determine economy and efficiency of
the operation of government activities. In the exercise of legislative scrutiny, Congress
may request information and report from the other branches of government. It can give
recommendations or pass resolutions for consideration of the agency involved.

xxx       xxx       xxx

b. Congressional investigation

While congressional scrutiny is regarded as a passive process of looking at the facts that
are readily available, congressional investigation involves a more intense digging of facts.
The power of Congress to conduct investigation is recognized by the 1987 Constitution
under section 21, Article VI, xxx       xxx       xxx

c. Legislative supervision

The third and most encompassing form by which Congress exercises its oversight power is thru
legislative supervision. "Supervision" connotes a continuing and informed awareness on the part
of a congressional committee regarding executive operations in a given administrative area.
While both congressional scrutiny and investigation involve inquiry into past executive branch
actions in order to influence future executive branch performance, congressional supervision
allows Congress to scrutinize the exercise of delegated law-making authority, and permits
Congress to retain part of that delegated authority.

Congress exercises supervision over the executive agencies through its veto power. It typically
utilizes veto provisions when granting the President or an executive agency the power to
promulgate regulations with the force of law. These provisions require the President or an agency
to present the proposed regulations to Congress, which retains a "right" to approve or disapprove
any regulation before it takes effect. Such legislative veto provisions usually provide that a
proposed regulation will become a law after the expiration of a certain period of time, only if
Congress does not affirmatively disapprove of the regulation in the meantime. Less frequently,
the statute provides that a proposed regulation will become law if Congress affirmatively
approves it.

Supporters of legislative veto stress that it is necessary to maintain the balance of power between
the legislative and the executive branches of government as it offers lawmakers a way to
delegate vast power to the executive branch or to independent agencies while retaining the
option to cancel particular exercise of such power without having to pass new legislation or to
repeal existing law. They contend that this arrangement promotes democratic accountability as it
provides legislative check on the activities of unelected administrative agencies. One proponent
thus explains:

It is too late to debate the merits of this delegation policy: the policy is too deeply
embedded in our law and practice. It suffices to say that the complexities of modern
government have often led Congress-whether by actual or perceived necessity- to
legislate by declaring broad policy goals and general statutory standards, leaving the
choice of policy options to the discretion of an executive officer. Congress articulates
legislative aims, but leaves their implementation to the judgment of parties who may or
may not have participated in or agreed with the development of those aims.
Consequently, absent safeguards, in many instances the reverse of our constitutional
scheme could be effected: Congress proposes, the Executive disposes. One safeguard,
of course, is the legislative power to enact new legislation or to change existing law. But
without some means of overseeing post enactment activities of the executive branch,
 Congress would be unable to determine whether its policies have been implemented in
accordance with legislative intent and thus whether legislative intervention is appropriate.

Its opponents, however, criticize the legislative veto as undue encroachment upon the

executive prerogatives. They urge that any post-enactment measures undertaken by the
legislative branch should be limited to scrutiny and investigation; any measure beyond
that would undermine the separation of powers guaranteed by the Constitution. They
contend that legislative veto constitutes an impermissible evasion of the President’s veto authority
and intrusion into the powers vested in the executive or judicial branches of government.
Proponents counter that legislative veto enhances separation of powers as it prevents the
executive branch and independent agencies from accumulating too much power. They submit
that reporting requirements and congressional committee investigations allow Congress to
scrutinize only the exercise of delegated law-making authority. They do not allow Congress to
review executive proposals before they take effect and they do not afford the opportunity for
ongoing and binding expressions of congressional intent. In contrast, legislative veto permits
Congress to participate prospectively in the approval or disapproval of "subordinate law" or those
enacted by the executive branch pursuant to a delegation of authority by Congress. They further
argue that legislative veto "is a necessary response by Congress to the accretion of policy control
by forces outside its chambers." In an era of delegated authority, they point out that legislative
veto "is the most efficient means Congress has yet devised to retain control over the evolution
and implementation of its policy as declared by statute."

In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court resolved the
validity of legislative veto provisions. The case arose from the order of the immigration judge
suspending the deportation of Chadha pursuant to § 244(c)(1) of the Immigration and Nationality
Act. The United States House of Representatives passed a resolution vetoing the suspension
pursuant to § 244(c)(2) authorizing either House of Congress, by resolution, to invalidate the
decision of the executive branch to allow a particular deportable alien to remain in the United
States. The immigration judge reopened the deportation proceedings to implement the House
order and the alien was ordered deported. The Board of Immigration Appeals dismissed the
alien’s appeal, holding that it had no power to declare unconstitutional an act of Congress. The
United States Court of Appeals for Ninth Circuit held that the House was without constitutional
authority to order the alien’s deportation and that § 244(c)(2) violated the constitutional doctrine
on separation of powers.

On appeal, the U.S. Supreme Court declared § 244(c)(2) unconstitutional. But the Court shied
away from the issue of separation of powers and instead held that the provision violates the
presentment clause and bicameralism. It held that the one-house veto was essentially legislative
in purpose and effect. As such, it is subject to the procedures set out in Article I of the
Constitution requiring the passage by a majority of both Houses and presentment to the
President. x x x x x x x x x

Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two lower
court decisions invalidating the legislative veto provisions in the Natural Gas Policy Act of 1978
and the Federal Trade Commission Improvement Act of 1980. Following this precedence, lower
courts invalidated statutes containing legislative veto provisions although some of these
provisions required the approval of both Houses of Congress and thus met the bicameralism
requirement of Article I. Indeed, some of these veto provisions were not even
exercised.35 (emphasis supplied)

In Macalintal, given the concept and configuration of the power of congressional oversight and
considering the nature and powers of a constitutional body like the Commission on Elections, the Court
struck down the provision in RA 9189 (The Overseas Absentee Voting Act of 2003) creating a Joint
Congressional Committee. The committee was tasked not only to monitor and evaluate the
implementation of the said law but also to review, revise, amend and approve the IRR promulgated by the
Commission on Elections. The Court held that these functions infringed on the constitutional
independence of the Commission on Elections.36

With this backdrop, it is clear that congressional oversight is not unconstitutional  per se, meaning, it
neither necessarily constitutes an encroachment on the executive power to implement laws nor
undermines the constitutional separation of powers. Rather, it is integral to the checks and balances
inherent in a democratic system of government. It may in fact even enhance the separation of powers as
it prevents the over-accumulation of power in the executive branch.

However, to forestall the danger of congressional encroachment "beyond the legislative sphere," the
Constitution imposes two basic and related constraints on Congress. 37 It may not vest itself, any of its
committees or its members with either executive or judicial power. 38 And, when it exercises its legislative
power, it must follow the "single, finely wrought and exhaustively considered, procedures" specified under
the Constitution,39 including the procedure for enactment of laws and presentment.

Thus, any post-enactment congressional measure such as this should be limited to scrutiny and
investigation. In particular, congressional oversight must be confined to the following:

(1) scrutiny based primarily on Congress’ power of appropriation and the budget hearings
conducted in connection with it, its power to ask heads of departments to appear before and be
heard by either of its Houses on any matter pertaining to their departments and its power of
confirmation40 and

(2) investigation and monitoring41 of the implementation of laws pursuant to the power of
Congress to conduct inquiries in aid of legislation.42

Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution.
Legislative vetoes fall in this class.

Legislative veto is a statutory provision requiring the President or an administrative agency to present the
proposed implementing rules and regulations of a law to Congress which, by itself or through a committee
formed by it, retains a "right" or "power" to approve or disapprove such regulations before they take effect.
As such, a legislative veto in the form of a congressional oversight committee is in the form of an inward-
turning delegation designed to attach a congressional leash (other than through scrutiny and
investigation) to an agency to which Congress has by law initially delegated broad powers. 43 It radically
changes the design or structure of the Constitution’s diagram of power as it entrusts to Congress a direct
role in enforcing, applying or implementing its own laws.44

Congress has two options when enacting legislation to define national policy within the broad horizons of
its legislative competence.45 It can itself formulate the details or it can assign to the executive branch the
responsibility for making necessary managerial decisions in conformity with those standards. 46 In the
latter case, the law must be complete in all its essential terms and conditions when it leaves the hands of
the legislature.47 Thus, what is left for the executive branch or the concerned administrative agency when
it formulates rules and regulations implementing the law is to fill up details (supplementary rule-making) or
ascertain facts necessary to bring the law into actual operation (contingent rule-making). 48

Administrative regulations enacted by administrative agencies to implement and interpret the law which
they are entrusted to enforce have the force of law and are entitled to respect. 49 Such rules and
regulations partake of the nature of a statute 50 and are just as binding as if they have been written in the
statute itself. As such, they have the force and effect of law and enjoy the presumption of constitutionality
and legality until they are set aside with finality in an appropriate case by a competent court. 51 Congress,
in the guise of assuming the role of an overseer, may not pass upon their legality by subjecting them to its
stamp of approval without disturbing the calculated balance of powers established by the Constitution. In
exercising discretion to approve or disapprove the IRR based on a determination of whether or not they
conformed with the provisions of RA 9335, Congress arrogated judicial power unto itself, a power
exclusively vested in this Court by the Constitution.

Considered Opinion of
Mr. Justice Dante O. Tinga

Moreover, the requirement that the implementing rules of a law be subjected to approval by Congress as
a condition for their effectivity violates the cardinal constitutional principles of bicameralism and the rule
on presentment.52

Section 1, Article VI of the Constitution states:

Section 1. The legislative power shall be vested in the Congress of the Philippines which
shall consist of a Senate and a House of Representatives, except to the extent reserved to
the people by the provision on initiative and referendum. (emphasis supplied)

Legislative power (or the power to propose, enact, amend and repeal laws) 53 is vested in Congress which
consists of two chambers, the Senate and the House of Representatives. A valid exercise of legislative
power requires the act of both chambers. Corrollarily, it can be exercised neither solely by one of the two
chambers nor by a committee of either or both chambers. Thus, assuming the validity of a legislative veto,
both a single-chamber legislative veto and a congressional committee legislative veto are invalid.

Additionally, Section 27(1), Article VI of the Constitution provides:

Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be
presented to the President. If he approves the same, he shall sign it, otherwise, he shall veto it
and return the same with his objections to the House where it originated, which shall enter the
objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-
thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with
the objections, to the other House by which it shall likewise be reconsidered, and if approved by
two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of
each House shall be determined by yeas or nays, and the names of the members voting for or
against shall be entered in its Journal. The President shall communicate his veto of any bill to the
House where it originated within thirty days after the date of receipt thereof; otherwise, it shall
become a law as if he had signed it. (emphasis supplied)

Every bill passed by Congress must be presented to the President for approval or veto. In the absence of
presentment to the President, no bill passed by Congress can become a law. In this sense, law-making
under the Constitution is a joint act of the Legislature and of the Executive. Assuming that legislative veto
is a valid legislative act with the force of law, it cannot take effect without such presentment even if
approved by both chambers of Congress.

In sum, two steps are required before a bill becomes a law. First, it must be approved by both Houses of
Congress.54 Second, it must be presented to and approved by the President. 55 As summarized by Justice
Isagani Cruz56 and Fr. Joaquin G. Bernas, S.J.57, the following is the procedure for the approval of bills:

A bill is introduced by any member of the House of Representatives or the Senate except for
some measures that must originate only in the former chamber.

The first reading involves only a reading of the number and title of the measure and its referral by
the Senate President or the Speaker to the proper committee for study.
 The bill may be "killed" in the committee or it may be recommended for approval, with or without
amendments, sometimes after public hearings are first held thereon. If there are other bills of the
same nature or purpose, they may all be consolidated into one bill under common authorship or
as a committee bill.

Once reported out, the bill shall be calendared for second reading. It is at this stage that the bill is
read in its entirety, scrutinized, debated upon and amended when desired. The second reading is
the most important stage in the passage of a bill.

The bill as approved on second reading is printed in its final form and copies thereof are
distributed at least three days before the third reading. On the third reading, the members merely
register their votes and explain them if they are allowed by the rules. No further debate is allowed.

Once the bill passes third reading, it is sent to the other chamber, where it will also undergo the
three readings. If there are differences between the versions approved by the two chambers, a
conference committee58 representing both Houses will draft a compromise measure that if ratified
by the Senate and the House of Representatives will then be submitted to the President for his
consideration.

The bill is enrolled when printed as finally approved by the Congress, thereafter authenticated
with the signatures of the Senate President, the Speaker, and the Secretaries of their respective
chambers…59

The President’s role in law-making.

The final step is submission to the President for approval. Once approved, it takes effect as law
after the required publication.60

Where Congress delegates the formulation of rules to implement the law it has enacted pursuant to
sufficient standards established in the said law, the law must be complete in all its essential terms and
conditions when it leaves the hands of the legislature. And it may be deemed to have left the hands of the
legislature when it becomes effective because it is only upon effectivity of the statute that legal rights and
obligations become available to those entitled by the language of the statute. Subject to the indispensable
requisite of publication under the due process clause, 61 the determination as to when a law takes effect is
wholly the prerogative of Congress.62 As such, it is only upon its effectivity that a law may be executed
and the executive branch acquires the duties and powers to execute the said law. Before that point, the
role of the executive branch, particularly of the President, is limited to approving or vetoing the law. 63

From the moment the law becomes effective, any provision of law that empowers Congress or any of its
members to play any role in the implementation or enforcement of the law violates the principle of
separation of powers and is thus unconstitutional. Under this principle, a provision that requires Congress
or its members to approve the implementing rules of a law after it has already taken effect shall be
unconstitutional, as is a provision that allows Congress or its members to overturn any directive or ruling
made by the members of the executive branch charged with the implementation of the law.

Following this rationale, Section 12 of RA 9335 should be struck down as unconstitutional. While there
may be similar provisions of other laws that may be invalidated for failure to pass this standard, the Court
refrains from invalidating them wholesale but will do so at the proper time when an appropriate case
assailing those provisions is brought before us.64

The next question to be resolved is: what is the effect of the unconstitutionality of Section 12 of RA 9335
on the other provisions of the law? Will it render the entire law unconstitutional? No.
Section 13 of RA 9335 provides:

SEC. 13. Separability Clause. – If any provision of this Act is declared invalid by a competent
court, the remainder of this Act or any provision not affected by such declaration of invalidity shall
remain in force and effect.

In Tatad v. Secretary of the Department of Energy,65 the Court laid down the following rules:

The general rule is that where part of a statute is void as repugnant to the Constitution, while
another part is valid, the valid portion, if separable from the invalid, may stand and be enforced.
The presence of a separability clause in a statute creates the presumption that the legislature
intended separability, rather than complete nullity of the statute. To justify this result, the valid
portion must be so far independent of the invalid portion that it is fair to presume that the
legislature would have enacted it by itself if it had supposed that it could not constitutionally enact
the other. Enough must remain to make a complete, intelligible and valid statute, which carries
out the legislative intent. x x x

The exception to the general rule  is that when the parts of a statute are so mutually dependent
and connected, as conditions, considerations, inducements, or compensations for each other, as
to warrant a belief that the legislature intended them as a whole, the nullity of one part will vitiate
the rest. In making the parts of the statute dependent, conditional, or connected with one another,
the legislature intended the statute to be carried out as a whole and would not have enacted it if
one part is void, in which case if some parts are unconstitutional, all the other provisions thus
dependent, conditional, or connected must fall with them.

The separability clause of RA 9335 reveals the intention of the legislature to isolate and detach any
invalid provision from the other provisions so that the latter may continue in force and effect. The valid
portions can stand independently of the invalid section. Without Section 12, the remaining provisions still
constitute a complete, intelligible and valid law which carries out the legislative intent to optimize the
revenue-generation capability and collection of the BIR and the BOC by providing for a system of rewards
and sanctions through the Rewards and Incentives Fund and a Revenue Performance Evaluation Board.

To be effective, administrative rules and regulations must be published in full if their purpose is to enforce
or implement existing law pursuant to a valid delegation. The IRR of RA 9335 were published on May 30,
2006 in two newspapers of general circulation66 and became effective 15 days thereafter.67 Until and
unless the contrary is shown, the IRR are presumed valid and effective even without the approval of the
Joint Congressional Oversight Committee.

WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA 9335 creating a Joint

Congressional Oversight Committee to approve the implementing rules and regulations of the law is
declared UNCONSTITUTIONAL and therefore NULL and VOID. The constitutionality of the remaining
provisions of RA 9335 is UPHELD. Pursuant to Section 13 of RA 9335, the rest of the provisions remain
in force and effect.

SO ORDERED.
 G.R. No. 207264               October 22, 2013

REGINA ONGSIAKO REYES, Petitioner,

vs.
COMMISSION ON ELECTIONS and JOSEPH SOCORRO B. TAN, Respondents.

RESOLUTION

PEREZ, J.:

This is a Motion for Reconsideration of the En Bane Resolution of 25 June 2013 which stated that:
IN VIEW OF THE FOREGOING, the instant petition is DISMISSED, finding no grave abuse of
discretion on the part of the Commission on Elections. The 14 May 2013 Resolution of the
COMELEC En Banc affirming the 27 March 2013 Resolution of the COMELEC First Division is
upheld."

In her Motion for Reconsideration, petitioner summarizes her submission, thus:

"81. Stated differently, the Petitioner x x x is not asking the Honorable Court to make a determination
as regards her qualifications, she is merely asking the Honorable Court to affirm the jurisdiction of
the HRET to solely and exclusively pass upon such qualifications and to set aside the COMELEC
Resolutions for having denied Petitioner her right to due process and for unconstitutionally adding a
qualification not otherwise required by the constitution." 1 (as originally underscored)

The first part of the summary refers to the issue raised in the petition, which is:

"31. Whether or not Respondent Comelec is without jurisdiction over Petitioner who is duly
proclaimed winner and who has already taken her oath of office for the position of Member of the
House of Representatives for the lone congressional district of Marinduque." 2

Tied up and neatened the propositions on the COMELEC-or-HRET jurisdiction go thus: petitioner is
a duly proclaimed winner and having taken her oath of office as member of the House of
Representatives, all questions regarding her qualifications are outside the jurisdiction of the
COMELEC and are within the HRET exclusive jurisdiction.

The averred proclamation is the critical pointer to the correctness of petitioner's submission. The
crucial question is whether or not petitioner could be proclaimed on 18 May 2013. Differently stated,
was there basis for the proclamation of petitioner on 18 May 2013?

Dates and events indicate that there was no basis for the proclamation of petitioner on 18 May 2013.
Without the proclamation, the petitioner's oath of office is likewise baseless, and without a precedent
oath of office, there can be no valid and effective assumption of office.

We have clearly stated in our Resolution of 5 June 2013 that:

"More importantly, we cannot disregard a fact basic in this controversy – that before the
proclamation of petitioner on 18 May 2013, the COMELEC En Banc had already finally disposed of
the issue of petitioner's lack of Filipino citizenship and residency via its Resolution dated 14 May
2013. After 14 May 2013, there was, before the COMELEC, no longer any pending case on
petitioner's qualifications to run for the position of Member of the House of Representatives. x x x As
the point has obviously been missed by the petitioner who continues to argue on the basis of her
due proclamation, the instant motion gives us the opportunity to highlight the undeniable fact we
here repeat that the proclamation which petitioner secured on 18 May 2013 was WITHOUT ANY
BASIS.

1. Four (4) days BEFORE the 18 May 2013 proclamation, or on 14 May 2013, the
COMELEC En Banc has already denied for lack o merit the petitioner's motion to reconsider
the decision o the COMELEC First Division that CANCELLED petitioner's certificate of
candidacy.

2. On 18 May 2013, there was already a standing and unquestioned cancellation of

petitioner's certificate o candidacy which cancellation is a definite bar to her proclamation.
On 18 May 2003, that bar has not been removed, there was not even any attempt to remove
it.

3. The COMELEC Rules indicate the manner by which the impediment to proclamation may
be removed. Rule 18, Section 13 (b) provides:

"(b) In Special Actions and Special Cases a decision or resolution of the Commission En
Bane shall become final and executory after five (5) days from its promulgation unless
restrained by the Supreme Court."

Within that five (5 days, petitioner had the opportunity to go to the Supreme Court for a
restraining order that will remove the immediate effect of the En Banc cancellation of her
certificate of candidacy. Within the five (5) days the Supreme Court may remove the barrier
to, and thus allow, the proclamation of petitioner. That did not happen. Petitioner did not
move to have it happen.

It is error to argue that the five days should pass before the petitioner is barred from being
proclaimed. Petitioner lost in the COMELEC as of respondent. Her certificate of candidacy
has been ordered cancelled. She could not be proclaimed because there was a final finding
against her by the COMELEC.3 She needed a restraining order from the Supreme Court to
avoid the final finding. After the five days when the decision adverse to her became
executory, the need for Supreme Court intervention became even more imperative. She
would have to base her recourse on the position that the COMELEC committed grave abuse
of discretion in cancelling her certificate of candidacy and that a restraining order, which
would allow her proclamation, will have to be based on irreparable injury and demonstrated
possibility of grave abuse of discretion on the part of the COMELEC. In this case, before and
after the 18 May 2013 proclamation, there was not even an attempt at the legal remedy,
clearly available to her, to permit her proclamation. What petitioner did was to "take the law
into her hands" and secure a proclamation in complete disregard of the COMELEC En Bane
decision that was final on 14 May 2013 and final and executory five days thereafter.

4. There is a reason why no mention about notice was made in Section 13(b) of Rule 18 in
the provision that the COMELEC En Bane or decision "SHALL become FINAL AND
EXECUTORY after five days from its promulgation unless restrained by the Supreme Court."
On its own the COMELEC En Bane decision, unrestrained, moves from promulgation into
becoming final and executory. This is so because in Section 5 of Rule 18 it is stated:

Section 5. Promulgation. -The promulgation of a decision or resolutions of the Commission or a

division shall be made on a date previously fixed, of which notice shall be served in advance upon
the parties or their attorneys personally or by registered mail or by telegram.
5. Apart from the presumed notice of the COMELEC En Bane decision on the very date of its
promulgation on 14 May 2013, petitioner admitted in her petition before us that she in fact
received a copy of the decision on 16 May 20 13.4 On that date, she had absolutely no
reason why she would disregard the available legal way to remove the restraint on her
proclamation, and, more than that, to in fact secure a proclamation two days thereafter. The
utter disregard of a final COMELEC En Bane decision and of the Rule stating that her
proclamation at that point MUST be on permission by the Supreme Court is even indicative
of bad faith on the part of the petitioner.

6. The indicant is magnified by the fact that petitioner would use her tainted proclamation as
the very reason to support her argument that she could no longer be reached by the
jurisdiction of the COMELEC; and that it is the HRET that has exclusive jurisdiction over the
issue of her qualifications for office.

7. The suggestions of bad faith aside, petitioner is in error in the conclusion at which she
directs, as well as in her objective quite obvious from such conclusion. It is with her procured
proclamation that petitioner nullifies the COMELEC's decision, by Division and then En Banc
and pre-empts any Supreme Court action on the COMELEC decision. In other words,
petitioner repudiates by her proclamation all administrative and judicial actions thereon, past
and present. And by her proclamation, she claims as acquired the congressional seat that
she sought to be a candidate for. As already shown, the reasons that lead to the
impermissibility of the objective are clear. She cannot sit as Member of the House of
Representatives by virtue of a baseless proclamation knowingly taken, with knowledge of the
existing legal impediment.

8. Petitioner, therefore, is in error when she posits that at present it is the HRET which has
exclusive jurisdiction over her qualifications as a Member of the House of Representatives.
That the HRET is the sole judge of all contests relating to the election, returns and
qualifications of the Members of the House of Representatives is a written constitutional
provision. It is, however unavailable to petitioner because she is NOT a Member of the
House at present. The COMELEC never ordered her proclamation as the rightful winner in
the election for such membership.5 Indeed, the action for cancellation of petitioner's
certificate of candidacy, the decision in which is the indispensable determinant of the right of
petitioner to proclamation, was correctly lodged in the COMELEC, was completely and fully
litigated in the COMELEC and was finally decided by the COMELEC. On and after 14 May
2013, there was nothing left for the COMELEC to do to decide the case. The decision sealed
the proceedings in the COMELEC regarding petitioner's ineligibility as a candidate for
Representative of Marinduque. The decision erected the bar to petitioner's proclamation. The
bar remained when no restraining order was obtained by petitioner from the Supreme Court
within five days from 14 May 2013.

9. When petitioner finally went to the Supreme Court on 10 June 2013 questioning the
COMELEC First Division ruling and the 14 May 2013 COMELEC En Bane decision, her
baseless proclamation on 18 May 2013 did not by that fact of promulgation alone become
valid and legal. A decision favorable to her by the Supreme Court regarding the decision of
the COMELEC En Bane on her certificate of candidacy was indispensably needed, not to
legalize her proclamation on 18 May 2013 but to authorize a proclamation with the Supreme
Court decision as basis.

10. The recourse taken on 25 June 2013 in the form of an original and special civil action for
a writ of Certiorari through Rule 64 of the Rules of Court is circumscribed by set rules and
principles.
 a) The special action before the COMELEC which was a Petition to Cancel
Certificate of Candidacy was a SUMMARY PROCEEDING or one heard summarily.
The nature of the proceedings is best indicated by the COMELEC Rule on Special
Actions, Rule 23, Section 4 of which states that the Commission may designate any
of its officials who are members of the Philippine Bar to hear the case and to receive
evidence. COMELEC Rule 17 further provides in Section 3 that when the
proceedings are authorized to be summary, in lieu of oral testimonies, the parties
may, after due notice, be required to submit their position paper together with
affidavits, counter-affidavits and other documentary evidence; x x x and that this
provision shall likewise apply to cases where the hearing and reception of evidence
are delegated by the Commission or the Division to any of its officials x x x.

b) The special and civil action of Certiorari is defined in the Rules of Court thus:

When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or
in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the
facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of
such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.

The accepted definition of grave abuse of discretion is: a capricious and whimsical exercise of
judgment so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law, as where the power is exercised in an arbitrary and despotic manner
because of passion or hostility.6

It is the category of the special action below providing the procedural leeway in the exercise of the
COMELEC summary jurisdiction over the case, in conjunction with the limits of the Supreme Court's
authority over the FINAL COMELEC ruling that is brought before it, that defines the way petitioner's
submission before the Court should be adjudicated. Thus further explained, the disposition of 25
June 2013 is here repeated for affirmation:

Petitioner alleges that the COMELEC gravely abused its discretion when it took cognizance of
"newly-discovered evidence" without the same having been testified on and offered and admitted in
evidence. She assails the admission of the blog article of Eli Obligacion as hearsay and the
photocopy of the Certification from the Bureau of Immigration. She likewise contends that there was
a violation of her right to due process of law because she was not given the opportunity to question
and present controverting evidence.

Her contentions are incorrect.

It must be emphasized that the COMELEC is not bound to strictly adhere to the technical rules of
procedure in the presentation of evidence. Under Section 2 of Rule I the COMELEC Rules of
Procedure shall be liberally construed in order x x x to achieve just, expeditious and inexpensive
determination and disposition of every action and proceeding brought before the Commission. In
view of the fact that the proceedings in a petition to deny due course or to cancel certificate of
candidacy are summary in nature, then the newly discovered evidence was properly admitted by
respondent COMELEC.

Furthermore, there was no denial of due process in the case at bar as petitioner was given every
opportunity to argue her case before the COMELEC. From 10 October 2012 when Tan's petition was
filed up to 27 March 2013 when the First Division rendered its resolution, petitioner had a period of
five (5) months to adduce evidence. Unfortunately, she did not avail herself of the opportunity given
her.

Also, in administrative proceedings, procedural due process only requires that the party be given the
opportunity or right to be heard. As held in the case of Sahali v. COMELEC:

The petitioners should be reminded that due process does not necessarily mean or require a
hearing, but simply an opportunity or right to be heard. One may be heard, not solely by verbal
presentation but also, and perhaps many times more creditably and predictable than oral argument,
through pleadings. In administrative proceedings moreover, technical rules of procedure and
evidence are not strictly applied; administrative process cannot be fully equated with due process in
its strict judicial sense. Indeed, deprivation of due process cannot be successfully invoked where a
party was given the chance to be he rd on his motion for reconsideration. (Emphasis supplied)

As to the ruling that petitioner s ineligible to run for office on the ground of citizenship, the
COMELEC First Division, discoursed as follows:

"x x x for respondent to reacquire her Filipino citizenship and become eligible for public office the law
requires that she must have accomplished the following acts: (1) take the oath of allegiance to the
Republic of the Philippines before the Consul-General of the Philippine Consulate in the USA; and
(2) make a personal and sworn renunciation of her American citizenship before any public officer
authorized to administer an oath.

In the case at bar, there s no showing that respondent complied with the aforesaid requirements.
Early on in the proceeding, respondent hammered on petitioner's lack of proof regarding her
American citizenship, contending that it is petitioner's burden to present a case. She, however,
specifically denied that she has become either a permanent resident or naturalized citizen of the
USA.

Due to petitioner's submission of newly-discovered evidence thru a Manifestation dated February 7,

2013, however, establishing the fact that respondent is a holder of an American passport which she
continues to use until June 30 2012 petitioner was able to substantiate his allegations. The burden
now shifts to respondent to present substantial evidence to prove otherwise. This, the respondent
utterly failed to do, leading to the conclusion inevitable that respondent falsely misrepresented in her
COC that she is a natural-born Filipino citizen. Unless and until she can establish that she had
availed of the privileges of RA 9225 by becoming a dual Filipino-American citizen, and thereafter,
made a valid sworn renunciation of her American citizenship, she remains to be an American citizen
and is, therefore, ineligible to run for and hold any elective public office in the Philippines."
(Emphasis in the original.)

Let us look into the events that led to this petition: In moving for the cancellation of petitioner's COC,
respondent submitted records of the Bureau of Immigration showing that petitioner is a holder of a
US passport, and that her status is that of a balikbayan. At this point, the burden of proof shifted to
petitioner, imposing upon her the duty to prove that she is a natural-born Filipino citizen and has not
lost the same, or that she has re-acquired such status in accordance with the provisions of R.A. No.
9225. Aside from the bare allegation that she is a natural-born citizen, however, petitioner submitted
no proof to support such contention. Neither did she submit any proof as to the inapplicability of R.A.
No. 9225 to her.

Notably, in her Motion for Reconsideration before the COMELEC En Bane, petitioner admitted that
she is a holder of a US passport, but she averred that she is only a dual Filipino-American citizen,
thus the requirements of R.A. No. 9225 do not apply to her. Still, attached to the said motion is an
Affidavit of Renunciation of Foreign Citizenship dated 24 September 2012. Petitioner explains that
she attached said Affidavit if only to show her desire and zeal to serve the people and to comply with
rules, even as a superfluity. We cannot, however, subscribe to petitioner's explanation. If petitioner
executed said Affidavit if only to comply with the rules, then it is an admission that R.A. No. 9225
applies to her. Petitioner cannot claim that she executed it to address the observations by the
COMELEC as the assailed Resolutions were promulgated only in 2013, while the Affidavit was
executed in September 2012. 1âwphi1

Moreover, in the present petition, petitioner added a footnote to her oath of office as Provincial
Administrator, to this effect: This does not mean that Petitioner did not, prior to her taking her oath of
office as Provincial Administrator, take her oath of allegiance for purposes of re-acquisition of
natural-born Filipino status, which she reserves to present in the proper proceeding. The reference
to the taking of oath of office is in order to make reference to what is already part of the records and
evidence in the present case and to avoid injecting into the records evidence on matters of fact that
was not previously passed upon by Respondent COMELEC. This statement raises a lot of questions
-Did petitioner execute an oath of allegiance for re-acquisition of natural-born Filipino status? If she
did, why did she not present it at the earliest opportunity before the COMELEC? And is this an
admission that she has indeed lost her natural-born Filipino status?

To cover-up her apparent lack of an oath of allegiance as required by R.A. No. 9225, petitioner
contends that, since she took her oath of allegiance in connection with her appointment as Provincial
Administrator of Marinduque, she is deemed to have reacquired her status as a natural-born Filipino
citizen.

This contention is misplaced. For one, this issue is being presented for the first time before this
Court, as it was never raised before the COMELEC. For another, said oath of allegiance cannot be
considered compliance with Sec. 3 of R.A. No. 9225 as certain requirements have to be met as
prescribed by Memorandum Circular No. AFF-04-01, otherwise known as the Rules Governing
Philippine Citizenship under R.A. No. 9225 and Memorandum Circular No. AFF-05-002 (Revised
Rules) and Administrative Order No. 91, Series of 2004 issued by the Bureau of Immigration. Thus,
petitioner s oath of office as Provincial Administrator cannot be considered as the oath of allegiance
in compliance with R.A. No. 9225.

These circumstances, taken together, show that a doubt was clearly cast on petitioner s citizenship.
Petitioner, however, failed to clear such doubt.7

11. It may need pointing out that there is no conflict between the COMELEC and the HRET
insofar as the petitioner s being a Representative of Marinduque is concerned. The
COMELEC covers the matter of petitioner s certificate of candidacy, and its due course or its
cancellation, which are the pivotal conclusions that determines who can be legally
proclaimed. The matter can go to the Supreme Court but not as a continuation of the
proceedings in the COMELEC, which has in fact ended, but on an original action before the
Court grounded on more than mere error of judgment but on error of jurisdiction for grave
abuse of discretion. At and after the COMELEC En Bane decision, there is no longer any
certificate cancellation matter than can go to the HRET. In that sense, the HRET s
constitutional authority opens, over the qualification of its MEMBER, who becomes so only
upon a duly and legally based proclamation, the first and unavoidable step towards such
membership. The HRET jurisdiction over the qualification of the Member of the House of
Representatives is original and exclusive, and as such, proceeds de novo unhampered by
the proceedings in the COMELEC which, as just stated has been terminated. The HRET
proceedings is a regular, not summary, proceeding. It will determine who should be the
Member of the House. It must be made clear though, at the risk of repetitiveness, that no
 hiatus occurs in the representation of Marinduque in the House because there is such a
representative who shall sit as the HRET proceedings are had till termination. Such
representative is the duly proclaimed winner resulting from the terminated case of
cancellation of certificate of candidacy of petitioner. The petitioner is not, cannot, be that
representative. And this, all in all, is the crux of the dispute between the parties: who shall sit
in the House in representation of Marinduque, while there is yet no HRET decision on the
qualifications of the Member.

12. As finale, and as explained in the discussion just done, no unwarranted haste can be
attributed, as the dissent does so, to the resolution of this petition promulgated on 25 June
2013. It was not done to prevent the exercise by the HRET of its constitutional duty. Quite
the contrary, the speedy resolution of the petition was done to pave the way for the
unimpeded performance by the HRET of its constitutional role. The petitioner can very well
invoke the authority of the HRET, but not as a sitting member of the House of
Representatives.8

The inhibition of this ponente was moved for. The reason for the denial of the motion was contained
in a letter to the members of the Court on the understanding that the matter was internal to the
Court. The ponente now seeks the Courts approval to have the explanation published as it is now
appended to this Resolution.

The motion to withdraw petition filed AFTER the Court has acted thereon, is noted. It may well be in
order to remind petitioner that jurisdiction, once acquired, is not lost upon the instance of the parties,
but continues until the case is terminated. 9 When petitioner filed her Petition for Certiorari jurisdiction
vested in the Court and, in fact, the Court exercised such jurisdiction when it acted on the petition.
Such jurisdiction cannot be lost by the unilateral withdrawal of the petition by petitioner.

More importantly, the Resolution dated 25 June 2013, being a valid court issuance, undoubtedly has
legal consequences. Petitioner cannot, by the mere expediency of withdrawing the petition, negative
and nullify the Court's Resolution and its legal effects. At this point, we counsel petitioner against
trifling with court processes. Having sought the jurisdiction of the Supreme Court, petitioner cannot
withdraw her petition to erase the ruling adverse to her interests. Obviously, she cannot, as she
designed below, subject to her predilections the supremacy of the law.

WHEREFORE, The Motion for Reconsideration is DENIED. The dismissal of the petition is affirmed.
Entry of Judgment is ordered.

SO ORDERED.
 G.R. No. 207264               June 25, 2013

REGINA ONGSIAKO REYES, Petitioner,

vs.
COMMISSION ON ELECTIONS and JOSEPH SOCORRO B. TAN, Respondents.

RESOLUTION

PEREZ, J.:

Before the Court is a Petition for Certiorari with Prayer for Temporary Restraining Order and/or
Preliminary Injunction and/or Status Quo Ante Order dated 7 June 2013 filed by petitioner Regina
Ongsiako Reyes, assailing the Resolutions dated 27 March 2013 and 14 May 2013 issued by public
respondent Commission on Elections (COMELEC) in SPA No. 13-053. The assailed Resolutions
ordered the cancellation of the Certificate of Candidacy of petitioner for the position of
Representative of the lone district of Marinduque.

On 31 October 2012, respondent Joseph Socorro Tan, a registered voter and resident of the
Municipality of Torrijos, Marinduque, filed before the COMELEC an Amended Petition to Deny Due
Course or to Cancel the Certificate of Candidacy (COC) of petitioner on the ground that it contained
material misrepresentations, specifically: (1) that she is single when she is married to Congressman
Herminaldo I. Mandanas of Batangas;1 (2) that she is a resident of Brgy. Lupac, Boac, Marinduque
when she is a resident of Bauan, Batangas which is the residence of her husband, and at the same
time, when she is also a resident of 135 J.P. Rizal, Brgy. Milagrosa, Quezon City as admitted in the
Directory of Congressional Spouses of the House of Representatives; 2 (3) that her date of birth is 3
July 1964 when other documents show that her birthdate is either 8 July 1959 or 3 July 1960; 3 (4)
that she is not a permanent resident of another country when she is a permanent resident or an
immigrant4 of the United States of America;5 and (5) that she is a Filipino citizen when she is, in fact,
an American citizen.6

In her Answer, petitioner countered that, while she is publicly known to be the wife of Congressman
Herminaldo I. Mandanas (Congressman Mandanas), there is no valid and binding marriage between
them. According to petitioner, although her marriage with Congressman Mandanas was solemnized
in a religious rite, it did not comply with certain formal requirements prescribed by the Family Code,
rendering it void ab initio.7 Consequently, petitioner argues that as she is not duty-bound to live with
Congressman Mandanas, then his residence cannot be attributed to her. 8 As to her date of birth, the
Certificate of Live Birth issued by the National Statistics Office shows that it was on 3 July
1964.9 Lastly, petitioner notes that the allegation that she is a permanent resident and/or a citizen of
the United States of America is not supported by evidence. 10

During the course of the proceedings, on 8 February 2013, respondent filed a "Manifestation with
Motion to Admit Newly Discovered Evidence and Amended List of Exhibits" 11 consisting of, among
others: (1) a copy of an article published on the internet on 8 January 2013 entitled "Seeking and
Finding the Truth about Regina O. Reyes" with an Affidavit of Identification and Authenticity of
Document executed by its author Eliseo J. Obligacion, which provides a database record of the
Bureau of Immigration indicating that petitioner is an American citizen and a holder of a U.S.
passport; (2) a Certification of Travel Records of petitioner, issued by Simeon Sanchez, Acting Chief,
Verification and Certification Unit of the Bureau of Immigration which indicates that petitioner used a
U.S. Passport in her various travels abroad.

On 27 March 2013, the COMELEC First Division issued a Resolution 12 cancelling petitioner’s COC,
to wit:
WHEREFORE, in view of the foregoing, the instant Petition is GRANTED. Accordingly, the
Certificate of Candidacy of respondent REGINA ONGSIAKO REYES is hereby CANCELLED.

The COMELEC First Division found that, contrary to the declarations that she made in her COC,
petitioner is not a citizen of the Philippines because of her failure to comply with the requirements of
Republic Act (R.A.) No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003, namely:
(1) to take an oath of allegiance to the Republic of the Philippines; and (2) to make a personal and
sworn renunciation of her American citizenship before any public officer authorized to administer an
oath. In addition, the COMELEC First Division ruled that she did not have the oneyear residency
requirement under Section 6, Article VI of the 1987 Constitution. 13 Thus, she is ineligible to run for
the position of Representative for the lone district of Marinduque.

Not agreeing with the Resolution of the COMELEC First Division, petitioner filed a Motion for
Reconsideration14 on 8 April 2013 claiming that she is a natural-born Filipino citizen and that she has
not lost such status by simply obtaining and using an American passport. Additionally, petitioner
surmised that the COMELEC First Division relied on the fact of her marriage to an American citizen
in concluding that she is a naturalized American citizen. Petitioner averred, however, that such
marriage only resulted into dual citizenship, thus there is no need for her to fulfill the twin
requirements under R.A. No. 9225. Still, petitioner attached an Affidavit of Renunciation of Foreign
Citizenship sworn to before a Notary Public on 24 September 2012. As to her alleged lack of the
one-year residency requirement prescribed by the Constitution, she averred that, as she never
became a naturalized citizen, she never lost her domicile of origin, which is Boac, Marinduque.

On 14 May 2013, the COMELEC En Banc, promulgated a Resolution 15 denying petitioner’s Motion
for Reconsideration for lack of merit.

Four days thereafter or on 18 May 2013, petitioner was proclaimed winner of the 13 May 2013
Elections.

On 5 June 2013, the COMELEC En Banc issued a Certificate of Finality 16 declaring the 14 May 2013
Resolution of the COMELEC En Banc final and executory, considering that more than twenty-one
(21) days have elapsed from the date of promulgation with no order issued by this Court restraining
its execution.17

On same day, petitioner took her oath of office18 before Feliciano R. Belmonte Jr., Speaker of the
House of Representatives.

Petitioner has yet to assume office, the term of which officially starts at noon of 30 June 2013.

In the present Petition for Certiorari with Prayer for Temporary Restraining Order and/or Preliminary
Injunction and/or Status Quo Ante Order, petitioner raises the following issues: 19

31) Whether or not Respondent Comelec is without jurisdiction over Petitioner who is a duly
proclaimed winner and who has already taken her oath of office for the position of Member of
the House of Representatives for the lone congressional district of Marinduque.

32) Whether or not Respondent Comelec committed grave abuse of discretion amounting to
lack or excess of jurisdiction when it took cognizance of Respondent Tan’s alleged "newly-
discovered evidence" without the same having been testified on and offered and admitted in
evidence which became the basis for its Resolution of the case without giving the petitioner
 the opportunity to question and present controverting evidence, in violation of Petitioner’s
right to due process of law.

33) Whether or not Respondent Comelec committed grave abuse of discretion amounting to
lack or excess of jurisdiction when it declared that Petitioner is not a Filipino citizen and did
not meet the residency requirement for the position of Member of the House of
Representatives.

34) Whether or not Respondent Commission on Elections committed grave abuse of

discretion amounting to lack or excess of jurisdiction when, by enforcing the provisions of
Republic Act No. 9225, it imposed additional qualifications to the qualifications of a Member
of the House of Representatives as enumerated in Section 6 of Article VI of the 1987
Constitution of the Philippines.

The petition must fail.

At the outset, it is observed that the issue of jurisdiction of respondent COMELEC vis-a-vis that of
House of Representatives Electoral Tribunal (HRET) appears to be a non-issue. Petitioner is taking
an inconsistent, if not confusing, stance for while she seeks remedy before this Court, she is
asserting that it is the HRET which has jurisdiction over her. Thus, she posits that the issue on her
eligibility and qualifications to be a Member of the House of Representatives is best discussed in
another tribunal of competent jurisdiction. It appears then that petitioner’s recourse to this Court was
made only in an attempt to enjoin the COMELEC from implementing its final and executory judgment
in SPA No. 13-053.

Nevertheless, we pay due regard to the petition, and consider each of the issues raised by
petitioner. The need to do so, and at once, was highlighted during the discussion En Banc on 25
June 2013 where and when it was emphasized that the term of office of the Members of the House
of Representatives begins on the thirtieth day of June next following their election.

According to petitioner, the COMELEC was ousted of its jurisdiction when she was duly
proclaimed20 because pursuant to Section 17, Article VI of the 1987 Constitution, the HRET has the
exclusive jurisdiction to be the "sole judge of all contests relating to the election, returns and
qualifications" of the Members of the House of Representatives.

Contrary to petitioner’s claim, however, the COMELEC retains jurisdiction for the following reasons:

First, the HRET does not acquire jurisdiction over the issue of petitioner’s qualifications, as well as
over the assailed COMELEC Resolutions, unless a petition is duly filed with said tribunal. Petitioner
has not averred that she has filed such action.

Second, the jurisdiction of the HRET begins only after the candidate is considered a Member of the
House of Representatives, as stated in Section 17, Article VI of the 1987 Constitution:

Section 17. The Senate and the House of Representatives shall each have an Electoral Tribunal
which shall be the sole judge of all contests relating to the election, returns, and qualifications of their
respective Members. x x x

As held in Marcos v. COMELEC,21 the HRET does not have jurisdiction over a candidate who is not
a member of the House of Representatives, to wit:
As to the House of Representatives Electoral Tribunal’s supposed assumption of jurisdiction over the
issue of petitioner’s qualifications after the May 8, 1995 elections, suffice it to say that HRET’s
jurisdiction as the sole judge of all contests relating to the elections, returns and qualifications of
members of Congress begins only after a candidate has become a member of the House of
Representatives. Petitioner not being a member of the House of Representatives, it is obvious that
the HRET at this point has no jurisdiction over the question. (Emphasis supplied.)

The next inquiry, then, is when is a candidate considered a Member of the House of
Representatives?

In Vinzons-Chato v. COMELEC,22 citing Aggabao v. COMELEC23 and Guerrero v. COMELEC,24 the

Court ruled that:

The Court has invariably held that once a winning candidate has been proclaimed, taken his oath,
and assumed office as a Member of the House of Representatives, the COMELEC’s jurisdiction over
election contests relating to his election, returns, and qualifications ends, and the HRET’s own
jurisdiction begins. (Emphasis supplied.)

This pronouncement was reiterated in the case of Limkaichong v. COMELEC, 25 wherein the Court,
referring to the jurisdiction of the COMELEC vis-a-vis the HRET, held that:

The Court has invariably held that once a winning candidate has been proclaimed, taken his oath,
and assumed office as a Member of the House of Representatives, the COMELEC's jurisdiction over
election contests relating to his election, returns, and qualifications ends, and the HRET's own
jurisdiction begins. (Emphasis supplied.)

This was again affirmed in Gonzalez v. COMELEC,26 to wit:

After proclamation, taking of oath and assumption of office by Gonzalez, jurisdiction over the matter
of his qualifications, as well as questions regarding the conduct of election and contested returns –
were transferred to the HRET as the constitutional body created to pass upon the same. (Emphasis
supplied.)

From the foregoing, it is then clear that to be considered a Member of the House of Representatives,
there must be a concurrence of the following requisites: (1) a valid proclamation, (2) a proper oath,
and (3) assumption of office.

Indeed, in some cases, this Court has made the pronouncement that once a proclamation has been
made, COMELEC’s jurisdiction is already lost and, thus, its jurisdiction over contests relating to
elections, returns, and qualifications ends, and the HRET’s own jurisdiction begins. However, it must
be noted that in these cases, the doctrinal pronouncement was made in the context of a proclaimed
candidate who had not only taken an oath of office, but who had also assumed office.

For instance, in the case of Dimaporo v. COMELEC,27 the Court upheld the jurisdiction of the HRET
against that of the COMELEC only after the candidate had been proclaimed, taken his oath of office
before the Speaker of the House, and assumed the duties of a Congressman on 26 September
2007, or after the start of his term on 30 June 2007, to wit:

On October 8, 2007, private respondent Belmonte filed his comment in which he brought to Our
attention that on September 26, 2007, even before the issuance of the status quo ante order of the
Court, he had already been proclaimed by the PBOC as the duly elected Member of the House of
Representatives of the First Congressional District of Lanao del Norte. On that very same day, he
had taken his oath before Speaker of the House Jose de Venecia, Jr. and assumed his duties
accordingly.

In light of this development, jurisdiction over this case has already been transferred to the House of
Representatives Electoral Tribunal (HRET). (Emphasis supplied.)

Apparently, the earlier cases were decided after the questioned candidate had already assumed
office, and hence, was already considered a Member of the House of Representatives, unlike in the
present case.

Here, the petitioner cannot be considered a Member of the House of Representatives because,
primarily, she has not yet assumed office. To repeat what has earlier been said, the term of office of
a Member of the House of Representatives begins only "at noon on the thirtieth day of June next
following their election."28 Thus, until such time, the COMELEC retains jurisdiction.

In her attempt to comply with the second requirement, petitioner attached a purported Oath Of Office
taken before Hon. Feliciano Belmonte Jr. on 5 June 2013. However, this is not the oath of office
which confers membership to the House of Representatives.

Section 6, Rule II (Membership) of the Rules of the House of Representatives provides:

Section 6. Oath or Affirmation of Members. – Members shall take their oath or affirmation either
collectively or individually before the Speaker in open session.

Consequently, before there is a valid or official taking of the oath it must be made (1) before the
Speaker of the House of Representatives, and (2) in open session. Here, although she made the
oath before Speaker Belmonte, there is no indication that it was made during plenary or in open
session and, thus, it remains unclear whether the required oath of office was indeed complied with.

More importantly, we cannot disregard a fact basic in this controversy – that before the proclamation
of petitioner on 18 May 2013, the COMELEC En Banc had already finally disposed of the issue of
petitioner’s lack of Filipino citizenship and residency via its Resolution dated 14 May 2013. After 14
May 2013, there was, before the COMELEC, no longer any pending case on petitioner’s
qualifications to run for the position of Member of the House of Representative. We will inexcusably
disregard this fact if we accept the argument of the petitioner that the COMELEC was ousted of
jurisdiction when she was proclaimed, which was four days after the COMELEC En Banc decision.
The Board of Canvasser which proclaimed petitioner cannot by such act be allowed to render
nugatory a decision of the COMELEC En Banc which affirmed a decision of the COMELEC First
Division.

Indeed, the assailed Resolution of the COMELEC First Division which was promulgated on 27 March
2013, and the assailed Resolution of the COMELEC En Banc which was promulgated on 14 May
2013, became final and executory on 19 May 2013 based on Section 3, Rule 37 of the COMELEC
Rules of Procedure which provides:

Section 3. Decisions Final after five days. Decisions in pre-proclamation cases and petitions to deny
due course to or cancel certificates of candidacy, to declare nuisance candidate or to disqualify a
candidate, and to postpone or suspend elections shall become final and executory after the lapse of
five (5) days from their promulgation unless restrained by the Supreme Court.
To prevent the assailed Resolution dated 14 May 2013 from becoming final and executory, petitioner
should have availed herself of Section 1, Rule 3729 of the COMELEC Rules of Procedure or Rule
6430 of the Rules of Court by filing a petition before this Court within the 5-day period, but she failed
to do so. She would file the present last hour petition on 10 June 2013. Hence, on 5 June 2013,
respondent COMELEC rightly issued a Certificate of Finality.

As to the issue of whether petitioner failed to prove her Filipino citizenship, as well as her one-year
residency in Marinduque, suffice it to say that the COMELEC committed no grave abuse of
discretion in finding her ineligible for the position of Member of the House of Representatives.

Petitioner alleges that the COMELEC gravely abused its discretion when it took cognizance of
"newly-discovered evidence" without the same having been testified on and offered and admitted in
evidence. She assails the admission of the blog article of Eli Obligacion as hearsay and the
photocopy of the Certification from the Bureau of Immigration. She likewise contends that there was
a violation of her right to due process of law because she was not given the opportunity to question
and present controverting evidence.

Her contentions are incorrect.

It must be emphasized that the COMELEC is not bound to strictly adhere to the technical rules of
procedure in the presentation of evidence. Under Section 2 of Rule I, the COMELEC Rules of
Procedure "shall be liberally construed in order x xx to achieve just, expeditious and inexpensive
determination and disposition of every action and proceeding brought before the Commission." In
view of the fact that the proceedings in a petition to deny due course or to cancel certificate of
candidacy are summary in nature, then the "newly discovered evidence" was properly admitted by
respondent COMELEC.

Furthermore, there was no denial of due process in the case at bar as petitioner was given every
opportunity to argue her case before the COMELEC. From 10 October 2012 when Tan’s petition
was filed up to 27 March 2013 when the First Division rendered its resolution, petitioner had a period
of five (5) months to adduce evidence. Unfortunately, she did not avail herself of the opportunity
given her.

Also, in administrative proceedings, procedural due process only requires that the party be given the
opportunity or right to be heard. As held in the case of Sahali v. COMELEC: 31

The petitioners should be reminded that due process does not necessarily mean or require a
hearing, but simply an opportunity or right to be heard. One may be heard, not solely by verbal
presentation but also, and perhaps many times more creditably and predictable than oral argument,
through pleadings. In administrative proceedings moreover, technical rules of procedure and
evidence are not strictly applied; administrative process cannot be fully equated with due process in
its strict judicial sense. Indeed, deprivation of due process cannot be successfully invoked where a
party was given the chance to be heard on his motion for reconsideration. (Emphasis supplied)

As to the ruling that petitioner is ineligible to run for office on the ground of citizenship, the
COMELEC First Division, discoursed as follows:

"x x x for respondent to reacquire her Filipino citizenship and become eligible for public office, the
law requires that she must have accomplished the following acts: (1) take the oath of allegiance to
the Republic of the Philippines before the Consul-General of the Philippine Consulate in the USA;
and (2) make a personal and sworn renunciation of her American citizenship before any public
officer authorized to administer an oath.
In the case at bar, there is no showing that respondent complied with the aforesaid requirements.
Early on in the proceeding, respondent hammered on petitioner’s lack of proof regarding her
American citizenship, contending that it is petitioner’s burden to present a case. She, however,
specifically denied that she has become either a permanent resident or naturalized citizen of the
USA.

Due to petitioner’s submission of newly-discovered evidence thru a Manifestation dated February 7,

2013, however, establishing the fact that respondent is a holder of an American passport which she
continues to use until June 30, 2012, petitioner was able to substantiate his allegations. The burden
now shifts to respondent to present substantial evidence to prove otherwise. This, the respondent
utterly failed to do, leading to the conclusion inevitable that respondent falsely misrepresented in her
COC that she is a natural-born Filipino citizen. Unless and until she can establish that she had
availed of the privileges of RA 9225 by becoming a dual Filipino-American citizen, and thereafter,
made a valid sworn renunciation of her American citizenship, she remains to be an American citizen
and is, therefore, ineligible to run for and hold any elective public office in the
Philippines."32 (Emphasis supplied.)

Let us look into the events that led to this petition: In moving for the cancellation of petitioner’s COC,
respondent submitted records of the Bureau of Immigration showing that petitioner is a holder of a
US passport, and that her status is that of a "balikbayan." At this point, the burden of proof shifted to
petitioner, imposing upon her the duty to prove that she is a natural-born Filipino citizen and has not
lost the same, or that she has reacquired such status in accordance with the provisions of R.A. No.
9225. Aside from the bare allegation that she is a natural-born citizen, however, petitioner submitted
no proof to support such contention. Neither did she submit any proof as to the inapplicability of R.A.
No. 9225 to her.

Notably, in her Motion for Reconsideration before the COMELEC En Banc, petitioner admitted that
she is a holder of a US passport, but she averred that she is only a dual Filipino-American citizen,
thus the requirements of R.A. No. 9225 do not apply to her. 33 Still, attached to the said motion is an
Affidavit of Renunciation of Foreign Citizenship dated 24 September 2012. 34 Petitioner explains that
she attached said Affidavit "if only to show her desire and zeal to serve the people and to comply
with rules, even as a superfluity." 35 We cannot, however, subscribe to petitioner’s explanation. If
petitioner executed said Affidavit "if only to comply with the rules," then it is an admission that R.A.
No. 9225 applies to her. Petitioner cannot claim that she executed it to address the observations by
the COMELEC as the assailed Resolutions were promulgated only in 2013, while the Affidavit was
executed in September 2012.

Moreover, in the present petition, petitioner added a footnote to her oath of office as Provincial
Administrator, to this effect: "This does not mean that Petitioner did not, prior to her taking her oath
of office as Provincial Administrator, take her oath of allegiance for purposes of reacquisition of
natural-born Filipino status, which she reserves to present in the proper proceeding. The reference
to the taking of oath of office is in order to make reference to what is already part of the records and
evidence in the present case and to avoid injecting into the records evidence on matters of fact that
was not previously passed upon by Respondent COMELEC." 36 This statement raises a lot of
questions – Did petitioner execute an oath of allegiance for re-acquisition of natural-born Filipino
status? If she did, why did she not present it at the earliest opportunity before the COMELEC? And
is this an admission that she has indeed lost her natural-born Filipino status?

To cover-up her apparent lack of an oath of allegiance as required by R.A. No. 9225, petitioner
contends that, since she took her oath of allegiance in connection with her appointment as Provincial
Administrator of Marinduque, she is deemed to have reacquired her status as a natural-born Filipino
citizen.
This contention is misplaced. For one, this issue is being presented for the first time before this
Court, as it was never raised before the COMELEC. For another, said oath of allegiance cannot be
considered compliance with Sec. 3 of R.A. No. 9225 as certain requirements have to be met as
prescribed by Memorandum Circular No. AFF-04-01, otherwise known as the Rules Governing
Philippine Citizenship under R.A. No. 9225 and Memorandum Circular No. AFF-05-002 (Revised
Rules) and Administrative Order No. 91, Series of 2004 issued by the Bureau of Immigration. Thus,
petitioner’s oath of office as Provincial Administrator cannot be considered as the oath of allegiance
in compliance with R.A. No. 9225.

These circumstances, taken together, show that a doubt was clearly cast on petitioner’s citizenship.
Petitioner, however, failed to clear such doubt.

As to the issue of residency, proceeding from the finding that petitioner has lost her natural-born
status, we quote with approval the ruling of the COMELEC First Division that petitioner cannot be
considered a resident of Marinduque:

"Thus, a Filipino citizen who becomes naturalized elsewhere effectively abandons his domicile of
origin. Upon re-acquisition of Filipino citizenship pursuant to RA 9225, he must still show that he
chose to establish his domicile in the Philippines through positive acts, and the period of his
residency shall be counted from the time he made it his domicile of choice.

In this case, there is no showing whatsoever that petitioner had already re-acquired her Filipino
citizenship pursuant to RA 9225 so as to conclude that she has regained her domicile in the
Philippines. There being no proof that petitioner had renounced her American citizenship, it follows
that she has not abandoned her domicile of choice in the USA.

The only proof presented by petitioner to show that she has met the one-year residency requirement
of the law and never abandoned her domicile of origin in Boac, Marinduque is her claim that she
served as Provincial Administrator of the province from January 18, 2011 to July 13, 2011. But such
fact alone is not sufficient to prove her one-year residency. For, petitioner has never regained her
domicile in Marinduque as she remains to be an American citizen. No amount of her stay in the said
locality can substitute the fact that she has not abandoned her domicile of choice in the
USA."37 (Emphasis supplied.)

All in all, considering that the petition for denial and cancellation of the COC is summary in nature,
the COMELEC is given much discretion in the evaluation and admission of evidence pursuant to its
principal objective of determining of whether or not the COC should be cancelled. We held in
Mastura v. COMELEC:38

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 COMELEC has broad powers to
ascertain the true results of the election by means available to it. For the attainment of that end, it is
not strictly bound by the rules of evidence.1âwphi1

Time and again, We emphasize that the "grave abuse of discretion" which warrants this Court’s
exercise of certiorari jurisdiction has a welldefined meaning. Guidance is found in Beluso v.
Commission on Elections39 where the Court held:
x x x A petition for certiorari will prosper only if grave abuse of discretion is alleged and proved to
exist. "Grave abuse of discretion," under Rule 65, has a specific meaning. It is the arbitrary or
despotic exercise of power due to passion, prejudice or personal hostility; or the whimsical, arbitrary,
or capricious exercise of power that amounts to an evasion or refusal to perform a positive duty
enjoined by law or to act at all in contemplation of law. For an act to be struck down as having been
done with grave abuse of discretion, the abuse of discretion must be patent and gross. (Emphasis
supplied.)

Here, this Court finds that petitioner failed to adequately and substantially show that grave abuse of
discretion exists.

Lastly, anent the proposition of petitioner that the act of the COMELEC in enforcing the provisions of
R.A. No. 9225, insofar as it adds to the qualifications of Members of the House of Representatives
other than those enumerated in the Constitution, is unconstitutional, We find the same meritless.

The COMELEC did not impose additional qualifications on candidates for the House of
Representatives who have acquired foreign citizenship. It merely applied the qualifications
prescribed by Section 6, Article VI of the 1987 Constitution that the candidate must be a natural-born
citizen of the Philippines and must have one-year residency prior to the date of elections. Such being
the case, the COMELEC did not err when it inquired into the compliance by petitioner of Sections 3
and 5 of R.A. No. 9225 to determine if she reacquired her status as a natural-born Filipino citizen. It
simply applied the constitutional provision and nothing more.

IN VIEW OF THE FOREGOING, the instant petition is DISMISSED, finding no grave abuse of
discretion on the part of the Commission on Elections. The 14 May 2013 Resolution of the
COMELEC En Bane affirming the 27 March 2013 Resolution of the COMELEC First Division is
upheld.

SO ORDERED.
 G.R. No. 189999               June 27, 2012

ANGELES UNIVERSITY FOUNDATION, Petitioner,

vs.
CITY OF ANGELES, JULIET G. QUINSAAT, in her capacity as Treasurer of Angeles City and
ENGR. DONATO N. DIZON, in his capacity as Acting Angeles City Building
Official, Respondents.

DECISION

VILLARAMA, JR., J.:

Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as
amended, which seeks to reverse and set aside the Decision dated July 28, 2009 and
1 

Resolution dated October 12, 2009 of the Court of Appeals (CA) in CA-G.R. CV No. 90591. The CA
2 

reversed the Decision dated September 21, 2007 of the Regional Trial Court of Angeles City, Branch
3 

57 in Civil Case No. 12995 declaring petitioner exempt from the payment of building permit and
other fees and ordering respondents to refund the same with interest at the legal rate.

The factual antecedents:

Petitioner Angeles University Foundation (AUF) is an educational institution established on May 25,
1962 and was converted into a non-stock, non-profit education foundation under the provisions of
Republic Act (R.A.) No. 6055 on December 4, 1975.
4 

Sometime in August 2005, petitioner filed with the Office of the City Building Official an application
for a building permit for the construction of an 11-storey building of the Angeles University
Foundation Medical Center in its main campus located at MacArthur Highway, Angeles City,
Pampanga. Said office issued a Building Permit Fee Assessment in the amount of P126,839.20. An
Order of Payment was also issued by the City Planning and Development Office, Zoning
Administration Unit requiring petitioner to pay the sum of P238,741.64 as Locational Clearance Fee. 5

In separate letters dated November 15, 2005 addressed to respondents City Treasurer Juliet G.
Quinsaat and Acting City Building Official Donato N. Dizon, petitioner claimed that it is exempt from
the payment of the building permit and locational clearance fees, citing legal opinions rendered by
the Department of Justice (DOJ). Petitioner also reminded the respondents that they have previously
issued building permits acknowledging such exemption from payment of building permit fees on the
construction of petitioner’s 4-storey AUF Information Technology Center building and the AUF
Professional Schools building on July 27, 2000 and March 15, 2004, respectively. 6

Respondent City Treasurer referred the matter to the Bureau of Local Government Finance (BLGF)
of the Department of Finance, which in turn endorsed the query to the DOJ. Then Justice Secretary
Raul M. Gonzalez, in his letter-reply dated December 6, 2005, cited previous issuances of his office
(Opinion No. 157, s. 1981 and Opinion No. 147, s. 1982) declaring petitioner to be exempt from the
payment of building permit fees. Under the 1st Indorsement dated January 6, 2006, BLGF reiterated
the aforesaid opinion of the DOJ stating further that "xxx the Department of Finance, thru this
Bureau, has no authority to review the resolution or the decision of the DOJ." 7

Petitioner wrote the respondents reiterating its request to reverse the disputed assessments and
invoking the DOJ legal opinions which have been affirmed by Secretary Gonzalez. Despite
petitioner’s plea, however, respondents refused to issue the building permits for the construction of
the AUF Medical Center in the main campus and renovation of a school building located at Marisol
Village. Petitioner then appealed the matter to City Mayor Carmelo F. Lazatin but no written
response was received by petitioner. 8

Consequently, petitioner paid under protest the following:

9 

Medical Center (new construction)  

   
Building Permit and Electrical Fee P 217,475.20
Locational Clearance Fee 283,741.64
Fire Code Fee 144,690.00
  Total - P 645,906.84
   
School Building (renovation)  
   
Building Permit and Electrical Fee P 37,857.20
Locational Clearance Fee 6,000.57
Fire Code Fee 5,967.74
  Total - P 49,825.51

Petitioner likewise paid the following sums as required by the City Assessor’s Office:

Real Property Tax – Basic Fee P 86,531.10  

SEF 43,274.54  
Locational Clearance Fee 1,125.00  
  Total – P130,930.64 10

  [GRAND TOTAL - P 826,662.99]

       

By reason of the above payments, petitioner was issued the corresponding Building Permit, Wiring
Permit, Electrical Permit and Sanitary Building Permit. On June 9, 2006, petitioner formally
requested the respondents to refund the fees it paid under protest. Under letters dated June 15,
2006 and August 7, 2006, respondent City Treasurer denied the claim for refund. 11

On August 31, 2006, petitioner filed a Complaint before the trial court seeking the refund of
12 

P826,662.99 plus interest at the rate of 12% per annum, and also praying for the award of attorney’s
fees in the amount of P300,000.00 and litigation expenses.

In its Answer, respondents asserted that the claim of petitioner cannot be granted because its
13 

structures are not among those mentioned in Sec. 209 of the National Building Code as exempted
from the building permit fee. Respondents argued that R.A. No. 6055 should be considered repealed
on the basis of Sec. 2104 of the National Building Code. Since the disputed assessments are
regulatory in nature, they are not taxes from which petitioner is exempt. As to the real property taxes
imposed on petitioner’s property located in Marisol Village, respondents pointed out that said
premises will be used as a school dormitory which cannot be considered as a use exclusively for
educational activities.

Petitioner countered that the subject building permit are being collected on the basis of Art. 244 of
the Implementing Rules and Regulations of the Local Government Code, which impositions are
really taxes considering that they are provided under the chapter on "Local Government Taxation" in
reference to the "revenue raising power" of local government units (LGUs). Moreover, petitioner
contended that, as held in Philippine Airlines, Inc. v. Edu, fees may be regarded as taxes depending
14 

on the purpose of its exaction. In any case, petitioner pointed out that the Local Government Code of
1991 provides in Sec. 193 that non-stock and non-profit educational institutions like petitioner
retained the tax exemptions or incentives which have been granted to them. Under Sec. 8 of R.A.
No. 6055 and applicable jurisprudence and DOJ rulings, petitioner is clearly exempt from the
payment of building permit fees. 15

On September 21, 2007, the trial court rendered judgment in favor of the petitioner and against the
respondents. The dispositive portion of the trial court’s decision reads:
16 

WHEREFORE, premises considered, judgment is rendered as follows:

a. Plaintiff is exempt from the payment of building permit and other fees Ordering the
Defendants to refund the total amount of Eight Hundred Twenty Six Thousand Six Hundred
Sixty Two Pesos and 99/100 Centavos (P826,662.99) plus legal interest thereon at the rate
of twelve percent (12%) per annum commencing on the date of extra-judicial demand or
June 14, 2006, until the aforesaid amount is fully paid.

b. Finding the Defendants liable for attorney’s fees in the amount of Seventy Thousand
Pesos (Php70,000.00), plus litigation expenses.

c. Ordering the Defendants to pay the costs of the suit.

SO ORDERED. 17

Respondents appealed to the CA which reversed the trial court, holding that while petitioner is a tax-
free entity, it is not exempt from the payment of regulatory fees. The CA noted that under R.A. No.
6055, petitioner was granted exemption only from income tax derived from its educational activities
and real property used exclusively for educational purposes. Regardless of the repealing clause in
the National Building Code, the CA held that petitioner is still not exempt because a building permit
cannot be considered as the other "charges" mentioned in Sec. 8 of R.A. No. 6055 which refers to
impositions in the nature of tax, import duties, assessments and other collections for revenue
purposes, following the ejusdem generisrule. The CA further stated that petitioner has not shown
that the fees collected were excessive and more than the cost of surveillance, inspection and
regulation. And while petitioner may be exempt from the payment of real property tax, petitioner in
this case merely alleged that "the subject property is to be used actually, directly and exclusively for
educational purposes," declaring merely that such premises is intended to house the sports and
other facilities of the university but by reason of the occupancy of informal settlers on the area, it
cannot yet utilize the same for its intended use. Thus, the CA concluded that petitioner is not entitled
to the refund of building permit and related fees, as well as real property tax it paid under protest.

Petitioner filed a motion for reconsideration which was denied by the CA.
Hence, this petition raising the following grounds:

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR AND DECIDED A QUESTION OF

SUBSTANCE IN A WAY NOT IN ACCORDANCE WITH LAW AND THE APPLICABLE DECISIONS
OF THE HONORABLE COURT AND HAS DEPARTED FROM THE ACCEPTED AND USUAL
COURSE OF JUDICIAL PROCEEDINGS NECESSITATING THE HONORABLE COURT’S
EXERCISE OF ITS POWER OF SUPERVISION CONSIDERING THAT:

I. IN REVERSING THE TRIAL COURT’S DECISION DATED 21 SEPTEMBER 2007, THE COURT
OF APPEALS EFFECTIVELY WITHDREW THE PRIVILEGE OF EXEMPTION GRANTED TO NON-
STOCK, NON-PROFIT EDUCATIONAL FOUNDATIONS BY VIRTUE OF RA 6055 WHICH
WITHDRAWAL IS BEYOND THE AUTHORITY OF THE COURT OF APPEALS TO DO.

A. INDEED, RA 6055 REMAINS VALID AND IS IN FULL FORCE AND EFFECT.

HENCE, THE COURT OF APPEALS ERRED WHEN IT RULED IN THE
QUESTIONED DECISION THAT NON-STOCK, NON-PROFIT EDUCATIONAL
FOUNDATIONS ARE NOT EXEMPT.

B. THE COURT OF APPEALS’ APPLICATION OF THE PRINCIPLE OF EJUSDEM

GENERIS IN RULING IN THE QUESTIONED DECISION THAT THE TERM
"OTHER CHARGES IMPOSED BY THE GOVERNMENT" UNDER SECTION 8 OF
RA 6055 DOES NOT INCLUDE BUILDING PERMIT AND OTHER RELATED FEES
AND/OR CHARGES IS BASED ON ITS ERRONEOUS AND UNWARRANTED
ASSUMPTION THAT THE TAXES, IMPORT DUTIES AND ASSESSMENTS AS
PART OF THE PRIVILEGE OF EXEMPTION GRANTED TO NON-STOCK, NON-
PROFIT EDUCATIONAL FOUNDATIONS ARE LIMITED TO COLLECTIONS FOR
REVENUE PURPOSES.

C. EVEN ASSUMING THAT THE BUILDING PERMIT AND OTHER RELATED

FEES AND/OR CHARGES ARE NOT INCLUDED IN THE TERM "OTHER
CHARGES IMPOSED BY THE GOVERNMENT" UNDER SECTION 8 OF RA 6055,
ITS IMPOSITION IS GENERALLY A TAX MEASURE AND THEREFORE, STILL
COVERED UNDER THE PRIVILEGE OF EXEMPTION.

II. THE COURT OF APPEALS’ DENIAL OF PETITIONER AUF’S EXEMPTION FROM REAL
PROPERTY TAXES CONTAINED IN ITS QUESTIONED DECISION AND QUESTIONED
RESOLUTION IS CONTRARY TO APPLICABLE LAW AND JURISPRUDENCE. 18

Petitioner stresses that the tax exemption granted to educational stock corporations which have
converted into non-profit foundations was broadened to include any other charges imposed by the
Government as one of the incentives for such conversion. These incentives necessarily included
exemption from payment of building permit and related fees as otherwise there would have been no
incentives for educational foundations if the privilege were only limited to exemption from taxation,
which is already provided under the Constitution.

Petitioner further contends that this Court has consistently held in several cases that the primary
purpose of the exaction determines its nature. Thus, a charge of a fixed sum which bears no relation
to the cost of inspection and which is payable into the general revenue of the state is a tax rather
than an exercise of the police power. The standard set by law in the determination of the amount
that may be imposed as license fees is such that is commensurate with the cost of regulation,
inspection and licensing. But in this case, the amount representing the building permit and related
fees and/or charges is such an exorbitant amount as to warrant a valid imposition; such amount
exceeds the probable cost of regulation. Even with the alleged criteria submitted by the respondents
(e.g., character of occupancy or use of building/structure, cost of construction, floor area and height),
and the construction by petitioner of an 11-storey building, the costs of inspection will not amount to
P645,906.84, presumably for the salary of inspectors or employees, the expenses of transportation
for inspection and the preparation and reproduction of documents. Petitioner thus concludes that the
disputed fees are substantially and mainly for purposes of revenue rather than regulation, so that
even these fees cannot be deemed "charges" mentioned in Sec. 8 of R.A. No. 6055, they should
properly be treated as tax from which petitioner is exempt.

In their Comment, respondents maintain that petitioner is not exempt from the payment of building
permit and related fees since the only exemptions provided in the National Building Code are public
buildings and traditional indigenous family dwellings. Inclusio unius est exclusio alterius. Because
the law did not include petitioner’s buildings from those structures exempt from the payment of
building permit fee, it is therefore subject to the regulatory fees imposed under the National Building
Code.

Respondents assert that the CA correctly distinguished a building permit fee from those "other
charges" mentioned in Sec. 8 of R.A. No. 6055. As stated by petitioner itself, charges refer to
pecuniary liability, as rents, and fees against persons or property. Respondents point out that a
building permit is classified under the term "fee." A fee is generally imposed to cover the cost of
regulation as activity or privilege and is essentially derived from the exercise of police power; on the
other hand, impositions for services rendered by the local government units or for conveniences
furnished, are referred to as "service charges".

Respondents also disagreed with petitioner’s contention that the fees imposed and collected are
exorbitant and exceeded the probable expenses of regulation. These fees are based on
computations and assessments made by the responsible officials of the City Engineer’s Office in
accordance with the Schedule of Fees and criteria provided in the National Building Code. The
bases of assessment cited by petitioner (e.g. salary of employees, expenses of transportation and
preparation and reproduction of documents) refer to charges and fees on business and occupation
under Sec. 147 of the Local Government Code, which do not apply to building permit fees. The
parameters set by the National Building Code can be considered as complying with the reasonable
cost of regulation in the assessment and collection of building permit fees. Respondents likewise
contend that the presumption of regularity in the performance of official duty applies in this case.
Petitioner should have presented evidence to prove its allegations that the amounts collected are
exorbitant or unreasonable.

For resolution are the following issues: (1) whether petitioner is exempt from the payment of building
permit and related fees imposed under the National Building Code; and (2) whether the parcel of
land owned by petitioner which has been assessed for real property tax is likewise exempt.

R.A. No. 6055 granted tax exemptions to educational institutions like petitioner which converted to
non-stock, non-profit educational foundations. Section 8 of said law provides:

SECTION 8. The Foundation shall be exempt from the payment of all taxes, import duties,
assessments, and other charges imposed by the Government onall income derived from or property,
real or personal, used exclusively for the educational activities of the Foundation.(Emphasis
supplied.)

On February 19, 1977, Presidential Decree (P.D.) No. 1096 was issued adopting the National
Building Code of the Philippines. The said Code requires every person, firm or corporation, including
any agency or instrumentality of the government to obtain a building permit for any construction,
alteration or repair of any building or structure. Building permit refers to "a document issued by the
19 

Building Official x x x to an owner/applicant to proceed with the construction, installation, addition,

alteration, renovation, conversion, repair, moving, demolition or other work activity of a specific
project/building/structure or portions thereof after the accompanying principal plans, specifications
and other pertinent documents with the duly notarized application are found satisfactory and
substantially conforming with the National Building Code of the Philippines x x x and its
Implementing Rules and Regulations (IRR)." Building permit fees refers to the basic permit fee and
20 

other charges imposed under the National Building Code.

Exempted from the payment of building permit fees are: (1) public buildings and (2) traditional
indigenous family dwellings. Not being expressly included in the enumeration of structures to which
21 

the building permit fees do not apply, petitioner’s claim for exemption rests solely on its interpretation
of the term "other charges imposed by the National Government" in the tax exemption clause of R.A.
No. 6055.

A "charge" is broadly defined as the "price of, or rate for, something," while the word "fee" pertains to
a "charge fixed by law for services of public officers or for use of a privilege under control of
government." As used in the Local Government Code of 1991 (R.A. No. 7160), charges refers to
22 

pecuniary liability, as rents or fees against persons or property, while fee means a charge fixed by
law or ordinance for the regulation or inspection of a business or activity.23

That "charges" in its ordinary meaning appears to be a general term which could cover a specific
"fee" does not support petitioner’s position that building permit fees are among those "other charges"
from which it was expressly exempted. Note that the "other charges" mentioned in Sec. 8 of R.A. No.
6055 is qualified by the words "imposed by the Government on all x x x property used exclusively for
the educational activities of the foundation." Building permit fees are not impositions on property but
on the activity subject of government regulation. While it may be argued that the fees relate to
particular properties, i.e., buildings and structures, they are actually imposed on certain activities the
owner may conduct either to build such structures or to repair, alter, renovate or demolish the same.
This is evident from the following provisions of the National Building Code:

Section 102. Declaration of Policy

It is hereby declared to be the policy of the State to safeguard life, health, property, and public
welfare, consistent with theprinciples of sound environmental management and control; and tothis
end, make it the purpose of this Code to provide for allbuildings and structures, a framework of
minimum standards and requirements to regulate and control their location, site, design quality of
materials, construction, use, occupancy, and maintenance.

Section 103. Scope and Application

(a) The provisions of this Code shall apply to the design,location, sitting, construction, alteration,
repair,conversion, use, occupancy, maintenance, moving, demolitionof, and addition to public and
private buildings andstructures, except traditional indigenous family dwellingsas defined herein.

xxxx

Section 301. Building Permits

No person, firm or corporation, including any agency orinstrumentality of the government shall erect,
construct, alter, repair, move, convert or demolish any building or structure or causethe same to be
done without first obtaining a building permittherefor from the Building Official assigned in the place
where thesubject building is located or the building work is to be done. (Italics supplied.)

That a building permit fee is a regulatory imposition is highlighted by the fact that in processing an
application for a building permit, the Building Official shall see to it that the applicant satisfies and
conforms with approved standard requirements on zoning and land use, lines and grades, structural
design, sanitary and sewerage, environmental health, electrical and mechanical safety as well as
with other rules and regulations implementing the National Building Code. Thus, ancillary permits
24 

such as electrical permit, sanitary permit and zoning clearance must also be secured and the
corresponding fees paid before a building permit may be issued. And as can be gleaned from the
implementing rules and regulations of the National Building Code, clearances from various
government authorities exercising and enforcing regulatory functions affecting buildings/structures,
like local government units, may be further required before a building permit may be issued. 25

Since building permit fees are not charges on property, they are not impositions from which
petitioner is exempt.

As to petitioner’s argument that the building permit fees collected by respondents are in reality taxes
because the primary purpose is to raise revenues for the local government unit, the same does not
hold water.

A charge of a fixed sum which bears no relation at all to the cost of inspection and regulation may be
held to be a tax rather than an exercise of the police power. In this case, the Secretary of Public
26 

Works and Highways who is mandated to prescribe and fix the amount of fees and other charges
that the Building Official shall collect in connection with the performance of regulatory functions, has
27 

promulgated and issued the Implementing Rules and Regulations which provide for the bases of
28 

assessment of such fees, as follows:

1. Character of occupancy or use of building

2. Cost of construction " 10,000/sq.m (A,B,C,D,E,G,H,I), 8,000 (F), 6,000 (J)

3. Floor area

4. Height

Petitioner failed to demonstrate that the above bases of assessment were arbitrarily determined or
unrelated to the activity being regulated. Neither has petitioner adduced evidence to show that the
rates of building permit fees imposed and collected by the respondents were unreasonable or in
excess of the cost of regulation and inspection.

In Chevron Philippines, Inc. v. Bases Conversion Development Authority, this Court explained:
29 

In distinguishing tax and regulation as a form of police power, the determining factor is the purpose
of the implemented measure. If the purpose is primarily to raise revenue, then it will be deemed a tax
even though the measure results in some form of regulation. On the other hand, if the purpose is
primarily to regulate, then it is deemed a regulation and an exercise of the police power of the state,
even though incidentally, revenue is generated. Thus, in Gerochi v. Department of Energy, the Court
stated:
"The conservative and pivotal distinction between these two (2) powers rests in the purpose for
which the charge is made. If generation of revenue is the primary purpose and regulation is merely
incidental, the imposition is a tax; but if regulation is the primary purpose, the fact that revenue is
incidentally raised does not make the imposition a tax." (Emphasis supplied.)
30 

Concededly, in the case of building permit fees imposed by the National Government under
the National Building Code, revenue is incidentally generated for the benefit of local government
units. Thus:

Section 208. Fees

Every Building Official shall keep a permanent record and accurate account of all fees and other
charges fixed and authorized by the Secretary to be collected and received under this Code.

Subject to existing budgetary, accounting and auditing rules and regulations, the Building Official is
hereby authorized to retain not more than twenty percent of his collection for the operating expenses
of his office.

The remaining eighty percent shall be deposited with the provincial, city or municipal treasurer and
shall accrue to the General Fund of the province, city or municipality concerned.

Petitioner’s reliance on Sec. 193 of the Local Government Code of 1991 is likewise misplaced. Said
provision states:

SECTION 193. Withdrawal of Tax Exemption Privileges. -- Unless otherwise provided in this Code,
tax exemptions or incentives granted to, or presently enjoyed by all persons, whether natural or
juridical, including government-owned or controlled corporations, except local water districts,
cooperatives duly registered under R.A. No. 6938, non-stock and non-profit hospitals and
educational institutions, are hereby withdrawn upon the effectivity of this Code. (Emphasis supplied.)

Considering that exemption from payment of regulatory fees was not among those "incentives"
granted to petitioner under R.A. No. 6055, there is no such incentive that is retained under the Local
Government Code of 1991. Consequently, no reversible error was committed by the CA in ruling that
petitioner is liable to pay the subject building permit and related fees.

Now, on petitioner’s claim that it is exempted from the payment of real property tax assessed against
its real property presently occupied by informal settlers.

Section 28(3), Article VI of the 1987 Constitution provides:

xxxx

(3) Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques,
non-profit cemeteries, and all lands, buildings, and improvements, actually, directly and exclusively
used for religious, charitable or educational purposes shall be exempt from taxation.

x x x x (Emphasis supplied.)

Section 234(b) of the Local Government Code of 1991 implements the foregoing constitutional

provision by declaring that --
SECTION 234. Exemptions from Real Property Tax.– The following are exempted from payment of
the real property tax:

xxxx

(b) Charitable institutions, churches, parsonages or convents appurtenant thereto, mosques, non-
profit or religious cemeteries and all lands, buildings, and improvements actually, directly, and
exclusively used for religious, charitable or educational purposes;

x x x x (Emphasis supplied.)

In Lung Center of the Philippines v. Quezon City, this Court held that only portions of the hospital
31 

actually, directly and exclusively used for charitable purposes are exempt from real property taxes,
while those portions leased to private entities and individuals are not exempt from such taxes. We
explained the condition for the tax exemption privilege of charitable and educational institutions, as
follows:

Under the 1973 and 1987 Constitutions and Rep. Act No. 7160 in order to be entitled to the
exemption, the petitioner is burdened to prove, by clear and unequivocal proof, that (a) it is a
charitable institution; and (b) its real properties
are ACTUALLY, DIRECTLY and EXCLUSIVELY used for charitable purposes. "Exclusive" is
defined as possessed and enjoyed to the exclusion of others; debarred from participation or
enjoyment; and "exclusively" is defined, "in a manner to exclude; as enjoying a privilege exclusively."
If real property is used for one or more commercial purposes, it is not exclusively used for the
exempted purposes but is subject to taxation. The words "dominant use" or "principal use" cannot be
substituted for the words "used exclusively" without doing violence to the Constitutions and the law.
Solely is synonymous with exclusively. 1âwphi1

What is meant by actual, direct and exclusive use of the property for charitable purposes is the direct
and immediate and actual application of the property itself to the purposes for which the charitable
institution is organized. It is not the use of the income from the real property that is determinative of
whether the property is used for tax-exempt purposes. (Emphasis and underscoring supplied.)
32 

Petitioner failed to discharge its burden to prove that its real property is actually, directly and
exclusively used for educational purposes. While there is no allegation or proof that petitioner leases
the land to its present occupants, still there is no compliance with the constitutional and statutory
requirement that said real property is actually, directly and exclusively used for educational
purposes. The respondents correctly assessed the land for real property taxes for the taxable period
during which the land is not being devoted solely to petitioner’s educational activities. Accordingly,
the CA did not err in ruling that petitioner is likewise not entitled to a refund of the real property tax it
paid under protest.

WHEREFORE, the petition is DENIED. The Decision dated July 28, 2009 and Resolution dated
October 12, 2009 of the Court of Appeals in CA-G.R. CV No. 90591 are AFFIRMED.

No pronouncement as to costs.

SO ORDERED.
 G.R. No. 144104             June 29, 2004

LUNG CENTER OF THE PHILIPPINES, petitioner,

vs.
QUEZON CITY and CONSTANTINO P. ROSAS, in his capacity as City Assessor of Quezon
City, respondents.

DECISION

CALLEJO, SR., J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court, as amended, of the
Decision1 dated July 17, 2000 of the Court of Appeals in CA-G.R. SP No. 57014 which affirmed the
decision of the Central Board of Assessment Appeals holding that the lot owned by the petitioner
and its hospital building constructed thereon are subject to assessment for purposes of real property
tax.

The Antecedents

The petitioner Lung Center of the Philippines is a non-stock and non-profit entity established on
January 16, 1981 by virtue of Presidential Decree No. 1823. 2 It is the registered owner of a parcel of
land, particularly described as Lot No. RP-3-B-3A-1-B-1, SWO-04-000495, located at Quezon
Avenue corner Elliptical Road, Central District, Quezon City. The lot has an area of 121,463 square
meters and is covered by Transfer Certificate of Title (TCT) No. 261320 of the Registry of Deeds of
Quezon City. Erected in the middle of the aforesaid lot is a hospital known as the Lung Center of the
Philippines. A big space at the ground floor is being leased to private parties, for canteen and small
store spaces, and to medical or professional practitioners who use the same as their private clinics
for their patients whom they charge for their professional services. Almost one-half of the entire area
on the left side of the building along Quezon Avenue is vacant and idle, while a big portion on the
right side, at the corner of Quezon Avenue and Elliptical Road, is being leased for commercial
purposes to a private enterprise known as the Elliptical Orchids and Garden Center.

The petitioner accepts paying and non-paying patients. It also renders medical services to out-
patients, both paying and non-paying. Aside from its income from paying patients, the petitioner
receives annual subsidies from the government.

On June 7, 1993, both the land and the hospital building of the petitioner were assessed for real
property taxes in the amount of ₱4,554,860 by the City Assessor of Quezon City. 3 Accordingly, Tax
Declaration Nos. C-021-01226 (16-2518) and C-021-01231 (15-2518-A) were issued for the land
and the hospital building, respectively.4 On August 25, 1993, the petitioner filed a Claim for
Exemption5 from real property taxes with the City Assessor, predicated on its claim that it is a
charitable institution. The petitioner’s request was denied, and a petition was, thereafter, filed before
the Local Board of Assessment Appeals of Quezon City (QC-LBAA, for brevity) for the reversal of
the resolution of the City Assessor. The petitioner alleged that under Section 28, paragraph 3 of the
1987 Constitution, the property is exempt from real property taxes. It averred that a minimum of 60%
of its hospital beds are exclusively used for charity patients and that the major thrust of its hospital
operation is to serve charity patients. The petitioner contends that it is a charitable institution and, as
such, is exempt from real property taxes. The QC-LBAA rendered judgment dismissing the petition
and holding the petitioner liable for real property taxes.6

The QC-LBAA’s decision was, likewise, affirmed on appeal by the Central Board of Assessment
Appeals of Quezon City (CBAA, for brevity)7 which ruled that the petitioner was not a charitable
institution and that its real properties were not actually, directly and exclusively used for charitable
purposes; hence, it was not entitled to real property tax exemption under the constitution and the
law. The petitioner sought relief from the Court of Appeals, which rendered judgment affirming the
decision of the CBAA.8

Undaunted, the petitioner filed its petition in this Court contending that:

A. THE COURT A QUO ERRED IN DECLARING PETITIONER AS NOT ENTITLED TO

REALTY TAX EXEMPTIONS ON THE GROUND THAT ITS LAND, BUILDING AND
IMPROVEMENTS, SUBJECT OF ASSESSMENT, ARE NOT ACTUALLY, DIRECTLY AND
EXCLUSIVELY DEVOTED FOR CHARITABLE PURPOSES.

B. WHILE PETITIONER IS NOT DECLARED AS REAL PROPERTY TAX EXEMPT UNDER

ITS CHARTER, PD 1823, SAID EXEMPTION MAY NEVERTHELESS BE EXTENDED
UPON PROPER APPLICATION.

The petitioner avers that it is a charitable institution within the context of Section 28(3), Article VI of
the 1987 Constitution. It asserts that its character as a charitable institution is not altered by the fact
that it admits paying patients and renders medical services to them, leases portions of the land to
private parties, and rents out portions of the hospital to private medical practitioners from which it
derives income to be used for operational expenses. The petitioner points out that for the years 1995
to 1999, 100% of its out-patients were charity patients and of the hospital’s 282-bed capacity, 60%
thereof, or 170 beds, is allotted to charity patients. It asserts that the fact that it receives subsidies
from the government attests to its character as a charitable institution. It contends that the
"exclusivity" required in the Constitution does not necessarily mean "solely." Hence, even if a portion
of its real estate is leased out to private individuals from whom it derives income, it does not lose its
character as a charitable institution, and its exemption from the payment of real estate taxes on its
real property. The petitioner cited our ruling in Herrera v. QC-BAA9 to bolster its pose. The petitioner
further contends that even if P.D. No. 1823 does not exempt it from the payment of real estate taxes,
it is not precluded from seeking tax exemption under the 1987 Constitution.

In their comment on the petition, the respondents aver that the petitioner is not a charitable entity.
The petitioner’s real property is not exempt from the payment of real estate taxes under P.D. No.
1823 and even under the 1987 Constitution because it failed to prove that it is a charitable institution
and that the said property is actually, directly and exclusively used for charitable purposes. The
respondents noted that in a newspaper report, it appears that graft charges were filed with the
Sandiganbayan against the director of the petitioner, its administrative officer, and Zenaida Rivera,
the proprietress of the Elliptical Orchids and Garden Center, for entering into a lease contract over
7,663.13 square meters of the property in 1990 for only ₱20,000 a month, when the monthly rental
should be ₱357,000 a month as determined by the Commission on Audit; and that instead of
complying with the directive of the COA for the cancellation of the contract for being grossly
prejudicial to the government, the petitioner renewed the same on March 13, 1995 for a monthly
rental of only ₱24,000. They assert that the petitioner uses the subsidies granted by the government
for charity patients and uses the rest of its income from the property for the benefit of paying
patients, among other purposes. They aver that the petitioner failed to adduce substantial evidence
that 100% of its out-patients and 170 beds in the hospital are reserved for indigent patients. The
respondents further assert, thus:

13. That the claims/allegations of the Petitioner LCP do not speak well of its record of
service. That before a patient is admitted for treatment in the Center, first impression is that it
is pay-patient and required to pay a certain amount as deposit. That even if a patient is living
below the poverty line, he is charged with high hospital bills. And, without these bills being
first settled, the poor patient cannot be allowed to leave the hospital or be discharged without
first paying the hospital bills or issue a promissory note guaranteed and indorsed by an
influential agency or person known only to the Center; that even the remains of deceased
poor patients suffered the same fate. Moreover, before a patient is admitted for treatment as
free or charity patient, one must undergo a series of interviews and must submit all the
requirements needed by the Center, usually accompanied by endorsement by an influential
agency or person known only to the Center. These facts were heard and admitted by the
Petitioner LCP during the hearings before the Honorable QC-BAA and Honorable CBAA.
These are the reasons of indigent patients, instead of seeking treatment with the Center,
they prefer to be treated at the Quezon Institute. Can such practice by the Center be called
charitable?10

The Issues

The issues for resolution are the following: (a) whether the petitioner is a charitable institution within
the context of Presidential Decree No. 1823 and the 1973 and 1987 Constitutions and Section
234(b) of Republic Act No. 7160; and (b) whether the real properties of the petitioner are exempt
from real property taxes.

The Court’s Ruling

The petition is partially granted.

On the first issue, we hold that the petitioner is a charitable institution within the context of the 1973
and 1987 Constitutions. To determine whether an enterprise is a charitable institution/entity or not,
the elements which should be considered include the statute creating the enterprise, its corporate
purposes, its constitution and by-laws, the methods of administration, the nature of the actual work
performed, the character of the services rendered, the indefiniteness of the beneficiaries, and the
use and occupation of the properties. 11

In the legal sense, a charity may be fully defined as a gift, to be applied consistently with existing
laws, for the benefit of an indefinite number of persons, either by bringing their minds and hearts
under the influence of education or religion, by assisting them to establish themselves in life or
otherwise lessening the burden of government. 12 It may be applied to almost anything that tend to
promote the well-doing and well-being of social man. It embraces the improvement and promotion of
the happiness of man.13 The word "charitable" is not restricted to relief of the poor or sick. 14 The test
of a charity and a charitable organization are in law the same. The test whether an enterprise is
charitable or not is whether it exists to carry out a purpose reorganized in law as charitable or
whether it is maintained for gain, profit, or private advantage.

Under P.D. No. 1823, the petitioner is a non-profit and non-stock corporation which, subject to the
provisions of the decree, is to be administered by the Office of the President of the Philippines with
the Ministry of Health and the Ministry of Human Settlements. It was organized for the welfare and
benefit of the Filipino people principally to help combat the high incidence of lung and pulmonary
diseases in the Philippines. The raison d’etre for the creation of the petitioner is stated in the
decree, viz:

Whereas, for decades, respiratory diseases have been a priority concern, having been the
leading cause of illness and death in the Philippines, comprising more than 45% of the total
annual deaths from all causes, thus, exacting a tremendous toll on human resources, which
ailments are likely to increase and degenerate into serious lung diseases on account of
unabated pollution, industrialization and unchecked cigarette smoking in the country; lavvph!l.net

Whereas, the more common lung diseases are, to a great extent, preventable, and curable
with early and adequate medical care, immunization and through prompt and intensive
prevention and health education programs;

Whereas, there is an urgent need to consolidate and reinforce existing programs, strategies
and efforts at preventing, treating and rehabilitating people affected by lung diseases, and to
undertake research and training on the cure and prevention of lung diseases, through a Lung
Center which will house and nurture the above and related activities and provide tertiary-
level care for more difficult and problematical cases;

Whereas, to achieve this purpose, the Government intends to provide material and financial
support towards the establishment and maintenance of a Lung Center for the welfare and
benefit of the Filipino people.15

The purposes for which the petitioner was created are spelled out in its Articles of Incorporation,
thus:

SECOND: That the purposes for which such corporation is formed are as follows:

1. To construct, establish, equip, maintain, administer and conduct an integrated

medical institution which shall specialize in the treatment, care, rehabilitation and/or
relief of lung and allied diseases in line with the concern of the government to assist
and provide material and financial support in the establishment and maintenance of a
lung center primarily to benefit the people of the Philippines and in pursuance of the
policy of the State to secure the well-being of the people by providing them
specialized health and medical services and by minimizing the incidence of lung
diseases in the country and elsewhere.

2. To promote the noble undertaking of scientific research related to the prevention of

lung or pulmonary ailments and the care of lung patients, including the holding of a
series of relevant congresses, conventions, seminars and conferences;

3. To stimulate and, whenever possible, underwrite scientific researches on the

biological, demographic, social, economic, eugenic and physiological aspects of lung
or pulmonary diseases and their control; and to collect and publish the findings of
such research for public consumption;

4. To facilitate the dissemination of ideas and public acceptance of information on

lung consciousness or awareness, and the development of fact-finding, information
and reporting facilities for and in aid of the general purposes or objects aforesaid,
especially in human lung requirements, general health and physical fitness, and
other relevant or related fields;

5. To encourage the training of physicians, nurses, health officers, social workers

and medical and technical personnel in the practical and scientific implementation of
services to lung patients;

6. To assist universities and research institutions in their studies about lung diseases,
to encourage advanced training in matters of the lung and related fields and to
support educational programs of value to general health;

7. To encourage the formation of other organizations on the national, provincial

and/or city and local levels; and to coordinate their various efforts and activities for
the purpose of achieving a more effective programmatic approach on the common
problems relative to the objectives enumerated herein;

8. To seek and obtain assistance in any form from both international and local
foundations and organizations; and to administer grants and funds that may be given
to the organization;

9. To extend, whenever possible and expedient, medical services to the public and,
in general, to promote and protect the health of the masses of our people, which has
long been recognized as an economic asset and a social blessing;

10. To help prevent, relieve and alleviate the lung or pulmonary afflictions and
maladies of the people in any and all walks of life, including those who are poor and
needy, all without regard to or discrimination, because of race, creed, color or
political belief of the persons helped; and to enable them to obtain treatment when
such disorders occur;

11. To participate, as circumstances may warrant, in any activity designed and

carried on to promote the general health of the community;

12. To acquire and/or borrow funds and to own all funds or equipment, educational
materials and supplies by purchase, donation, or otherwise and to dispose of and
distribute the same in such manner, and, on such basis as the Center shall, from
time to time, deem proper and best, under the particular circumstances, to serve its
general and non-profit purposes and objectives; lavvphil.net

13. To buy, purchase, acquire, own, lease, hold, sell, exchange, transfer and dispose
of properties, whether real or personal, for purposes herein mentioned; and

14. To do everything necessary, proper, advisable or convenient for the

accomplishment of any of the powers herein set forth and to do every other act and
thing incidental thereto or connected therewith.16
Hence, the medical services of the petitioner are to be rendered to the public in general in any and
all walks of life including those who are poor and the needy without discrimination. After all, any
person, the rich as well as the poor, may fall sick or be injured or wounded and become a subject of
charity.17

As a general principle, a charitable institution does not lose its character as such and its exemption
from taxes simply because it derives income from paying patients, whether out-patient, or confined
in the hospital, or receives subsidies from the government, so long as the money received is devoted
or used altogether to the charitable object which it is intended to achieve; and no money inures to
the private benefit of the persons managing or operating the institution. 18 In Congregational Sunday
School, etc. v. Board of Review,19 the State Supreme Court of Illinois held, thus:

… [A]n institution does not lose its charitable character, and consequent exemption from
taxation, by reason of the fact that those recipients of its benefits who are able to pay are
required to do so, where no profit is made by the institution and the amounts so received are
applied in furthering its charitable purposes, and those benefits are refused to none on
account of inability to pay therefor. The fundamental ground upon which all exemptions in
favor of charitable institutions are based is the benefit conferred upon the public by them,
and a consequent relief, to some extent, of the burden upon the state to care for and
advance the interests of its citizens.20

As aptly stated by the State Supreme Court of South Dakota in Lutheran Hospital Association of
South Dakota v. Baker:21

… [T]he fact that paying patients are taken, the profits derived from attendance upon these
patients being exclusively devoted to the maintenance of the charity, seems rather to
enhance the usefulness of the institution to the poor; for it is a matter of common observation
amongst those who have gone about at all amongst the suffering classes, that the deserving
poor can with difficulty be persuaded to enter an asylum of any kind confined to the reception
of objects of charity; and that their honest pride is much less wounded by being placed in an
institution in which paying patients are also received. The fact of receiving money from some
of the patients does not, we think, at all impair the character of the charity, so long as the
money thus received is devoted altogether to the charitable object which the institution is
intended to further.22

The money received by the petitioner becomes a part of the trust fund and must be devoted to public
trust purposes and cannot be diverted to private profit or benefit. 23

Under P.D. No. 1823, the petitioner is entitled to receive donations. The petitioner does not lose its
character as a charitable institution simply because the gift or donation is in the form of subsidies
granted by the government. As held by the State Supreme Court of Utah in Yorgason v. County
Board of Equalization of Salt Lake County:24

Second, the … government subsidy payments are provided to the project. Thus, those
payments are like a gift or donation of any other kind except they come from the government.
In both Intermountain Health Care and the present case, the crux is the presence or absence
of material reciprocity. It is entirely irrelevant to this analysis that the government, rather than
a private benefactor, chose to make up the deficit resulting from the exchange between St.
Mark’s Tower and the tenants by making a contribution to the landlord, just as it would have
been irrelevant in Intermountain Health Care if the patients’ income supplements had come
from private individuals rather than the government.
 Therefore, the fact that subsidization of part of the cost of furnishing such housing is by the
government rather than private charitable contributions does not dictate the denial of a
charitable exemption if the facts otherwise support such an exemption, as they do here. 25

In this case, the petitioner adduced substantial evidence that it spent its income, including the
subsidies from the government for 1991 and 1992 for its patients and for the operation of the
hospital. It even incurred a net loss in 1991 and 1992 from its operations.

Even as we find that the petitioner is a charitable institution, we hold, anent the second issue, that
those portions of its real property that are leased to private entities are not exempt from real property
taxes as these are not actually, directly and exclusively used for charitable purposes.

The settled rule in this jurisdiction is that laws granting exemption from tax are construed strictissimi
juris against the taxpayer and liberally in favor of the taxing power. Taxation is the rule and
exemption is the exception. The effect of an exemption is equivalent to an appropriation. Hence, a
claim for exemption from tax payments must be clearly shown and based on language in the law too
plain to be mistaken.26 As held in Salvation Army v. Hoehn:27

An intention on the part of the legislature to grant an exemption from the taxing power of the
state will never be implied from language which will admit of any other reasonable
construction. Such an intention must be expressed in clear and unmistakable terms, or must
appear by necessary implication from the language used, for it is a well settled principle that,
when a special privilege or exemption is claimed under a statute, charter or act of
incorporation, it is to be construed strictly against the property owner and in favor of the
public. This principle applies with peculiar force to a claim of exemption from taxation . … 28

Section 2 of Presidential Decree No. 1823, relied upon by the petitioner, specifically provides that
the petitioner shall enjoy the tax exemptions and privileges:

SEC. 2. TAX EXEMPTIONS AND PRIVILEGES. Being a non-profit, non-stock corporation

organized primarily to help combat the high incidence of lung and pulmonary diseases in the
Philippines, all donations, contributions, endowments and equipment and supplies to be
imported by authorized entities or persons and by the Board of Trustees of the Lung Center
of the Philippines, Inc., for the actual use and benefit of the Lung Center, shall be exempt
from income and gift taxes, the same further deductible in full for the purpose of determining
the maximum deductible amount under Section 30, paragraph (h), of the National Internal
Revenue Code, as amended.

The Lung Center of the Philippines shall be exempt from the payment of taxes, charges and
fees imposed by the Government or any political subdivision or instrumentality thereof with
respect to equipment purchases made by, or for the Lung Center.29

It is plain as day that under the decree, the petitioner does not enjoy any property tax exemption
privileges for its real properties as well as the building constructed thereon. If the intentions were
otherwise, the same should have been among the enumeration of tax exempt privileges under
Section 2:

It is a settled rule of statutory construction that the express mention of one person, thing, or
consequence implies the exclusion of all others. The rule is expressed in the familiar
maxim, expressio unius est exclusio alterius.
 The rule of expressio unius est exclusio alterius is formulated in a number of ways. One
variation of the rule is the principle that what is expressed puts an end to that which is
implied. Expressium facit cessare tacitum. Thus, where a statute, by its terms, is expressly
limited to certain matters, it may not, by interpretation or construction, be extended to other
matters.

...

The rule of expressio unius est exclusio alterius and its variations are canons of restrictive
interpretation. They are based on the rules of logic and the natural workings of the human
mind. They are predicated upon one’s own voluntary act and not upon that of others. They
proceed from the premise that the legislature would not have made specified enumeration in
a statute had the intention been not to restrict its meaning and confine its terms to those
expressly mentioned.30

The exemption must not be so enlarged by construction since the reasonable presumption is that the
State has granted in express terms all it intended to grant at all, and that unless the privilege is
limited to the very terms of the statute the favor would be intended beyond what was meant. 31

Section 28(3), Article VI of the 1987 Philippine Constitution provides, thus:

(3) Charitable institutions, churches and parsonages or convents appurtenant thereto,

mosques, non-profit cemeteries, and all lands, buildings, and
improvements, actually, directly and exclusively used for religious, charitable or educational
purposes shall be exempt from taxation. 32

The tax exemption under this constitutional provision covers property taxes only.33 As Chief Justice
Hilario G. Davide, Jr., then a member of the 1986 Constitutional Commission, explained: ". . . what is
exempted is not the institution itself . . .; those exempted from real estate taxes are lands, buildings
and improvements actually, directly and exclusively used for religious, charitable or educational
purposes."34

Consequently, the constitutional provision is implemented by Section 234(b) of Republic Act No.
7160 (otherwise known as the Local Government Code of 1991) as follows:

SECTION 234. Exemptions from Real Property Tax. – The following are exempted from
payment of the real property tax:

...

(b) Charitable institutions, churches, parsonages or convents appurtenant thereto,

mosques, non-profit or religious cemeteries and all lands, buildings, and
improvements actually, directly, and exclusively used for religious, charitable or
educational purposes.35

We note that under the 1935 Constitution, "... all lands, buildings, and improvements used
‘exclusively’ for … charitable … purposes shall be exempt from taxation." 36 However, under the 1973
and the present Constitutions, for "lands, buildings, and improvements" of the charitable institution to
be considered exempt, the same should not only be "exclusively" used for charitable purposes; it is
required that such property be used "actually" and "directly" for such purposes. 37
In light of the foregoing substantial changes in the Constitution, the petitioner cannot rely on our
ruling in Herrera v. Quezon City Board of Assessment Appeals which was promulgated on
September 30, 1961 before the 1973 and 1987 Constitutions took effect. 38 As this Court held
in Province of Abra v. Hernando:39

… Under the 1935 Constitution: "Cemeteries, churches, and parsonages or convents

appurtenant thereto, and all lands, buildings, and improvements used exclusively for
religious, charitable, or educational purposes shall be exempt from taxation." The present
Constitution added "charitable institutions, mosques, and non-profit cemeteries" and required
that for the exemption of "lands, buildings, and improvements," they should not only be
"exclusively" but also "actually" and "directly" used for religious or charitable purposes. The
Constitution is worded differently. The change should not be ignored. It must be duly taken
into consideration. Reliance on past decisions would have sufficed were the words "actually"
as well as "directly" not added. There must be proof therefore of the actual and direct use of
the lands, buildings, and improvements for religious or charitable purposes to be exempt
from taxation. …

Under the 1973 and 1987 Constitutions and Rep. Act No. 7160 in order to be entitled to the
exemption, the petitioner is burdened to prove, by clear and unequivocal proof, that (a) it is a
charitable institution; and (b) its real properties
are ACTUALLY, DIRECTLY and EXCLUSIVELY used for charitable purposes. "Exclusive" is
defined as possessed and enjoyed to the exclusion of others; debarred from participation or
enjoyment; and "exclusively" is defined, "in a manner to exclude; as enjoying a privilege
exclusively."40 If real property is used for one or more commercial purposes, it is not exclusively used
for the exempted purposes but is subject to taxation. 41 The words "dominant use" or "principal use"
cannot be substituted for the words "used exclusively" without doing violence to the Constitutions
and the law.42 Solely is synonymous with exclusively.43

What is meant by actual, direct and exclusive use of the property for charitable purposes is the direct
and immediate and actual application of the property itself to the purposes for which the charitable
institution is organized. It is not the use of the income from the real property that is determinative of
whether the property is used for tax-exempt purposes. 44

The petitioner failed to discharge its burden to prove that the entirety of its real property is actually,
directly and exclusively used for charitable purposes. While portions of the hospital are used for the
treatment of patients and the dispensation of medical services to them, whether paying or non-
paying, other portions thereof are being leased to private individuals for their clinics and a canteen.
Further, a portion of the land is being leased to a private individual for her business enterprise under
the business name "Elliptical Orchids and Garden Center." Indeed, the petitioner’s evidence shows
that it collected ₱1,136,483.45 as rentals in 1991 and ₱1,679,999.28 for 1992 from the said lessees.

Accordingly, we hold that the portions of the land leased to private entities as well as those parts of
the hospital leased to private individuals are not exempt from such taxes. 45 On the other hand, the
portions of the land occupied by the hospital and portions of the hospital used for its patients,
whether paying or non-paying, are exempt from real property taxes.

IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED. The respondent

Quezon City Assessor is hereby DIRECTED to determine, after due hearing, the precise portions of
the land and the area thereof which are leased to private persons, and to compute the real property
taxes due thereon as provided for by law.

SO ORDERED.
 G.R. No. 115455 October 30, 1995

ARTURO M. TOLENTINO, petitioner,
vs.
THE SECRETARY OF FINANCE and THE COMMISSIONER OF INTERNAL
REVENUE, respondents.

G.R. No. 115525 October 30, 1995

JUAN T. DAVID, petitioner,
vs.
TEOFISTO T. GUINGONA, JR., as Executive Secretary; ROBERTO DE OCAMPO, as Secretary
of Finance; LIWAYWAY VINZONS-CHATO, as Commissioner of Internal Revenue; and their
AUTHORIZED AGENTS OR REPRESENTATIVES, respondents.

G.R. No. 115543 October 30, 1995

RAUL S. ROCO and the INTEGRATED BAR OF THE PHILIPPINES, petitioners,

vs.
THE SECRETARY OF THE DEPARTMENT OF FINANCE; THE COMMISSIONERS OF THE
BUREAU OF INTERNAL REVENUE AND BUREAU OF CUSTOMS, respondents.

G.R. No. 115544 October 30, 1995

PHILIPPINE PRESS INSTITUTE, INC.; EGP PUBLISHING CO., INC.; KAMAHALAN PUBLISHING
CORPORATION; PHILIPPINE JOURNALISTS, INC.; JOSE L. PAVIA; and OFELIA L.
DIMALANTA, petitioners,
vs.
HON. LIWAYWAY V. CHATO, in her capacity as Commissioner of Internal Revenue; HON.
TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary; and HON. ROBERTO B.
DE OCAMPO, in his capacity as Secretary of Finance, respondents.

G.R. No. 115754 October 30, 1995

CHAMBER OF REAL ESTATE AND BUILDERS ASSOCIATIONS, INC., (CREBA), petitioner,
vs.
THE COMMISSIONER OF INTERNAL REVENUE, respondent.

G.R. No. 115781 October 30, 1995

KILOSBAYAN, INC., JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA, EMILIO C.

CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE
ABCEDE, CHRISTINE TAN, FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL V.
VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. ("MABINI"), FREEDOM FROM DEBT
COALITION, INC., and PHILIPPINE BIBLE SOCIETY, INC. and WIGBERTO TAÑADA, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE, THE COMMISSIONER OF
INTERNAL REVENUE and THE COMMISSIONER OF CUSTOMS, respondents.

G.R. No. 115852 October 30, 1995

PHILIPPINE AIRLINES, INC., petitioner,

vs.
THE SECRETARY OF FINANCE and COMMISSIONER OF INTERNAL REVENUE, respondents.

G.R. No. 115873 October 30, 1995

COOPERATIVE UNION OF THE PHILIPPINES, petitioner,

vs.
HON. LIWAYWAY V. CHATO, in her capacity as the Commissioner of Internal Revenue, HON.
TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary, and HON. ROBERTO B.
DE OCAMPO, in his capacity as Secretary of Finance, respondents.

G.R. No. 115931 October 30, 1995

PHILIPPINE EDUCATIONAL PUBLISHERS ASSOCIATION, INC. and ASSOCIATION OF

PHILIPPINE BOOK SELLERS, petitioners,
vs.
HON. ROBERTO B. DE OCAMPO, as the Secretary of Finance; HON. LIWAYWAY V. CHATO,
as the Commissioner of Internal Revenue; and HON. GUILLERMO PARAYNO, JR., in his
capacity as the Commissioner of Customs, respondents.

RESOLUTION

MENDOZA, J.:

These are motions seeking reconsideration of our decision dismissing the petitions filed in these
cases for the declaration of unconstitutionality of R.A. No. 7716, otherwise known as the Expanded
Value-Added Tax Law. The motions, of which there are 10 in all, have been filed by the several
petitioners in these cases, with the exception of the Philippine Educational Publishers Association,
Inc. and the Association of Philippine Booksellers, petitioners in G.R. No. 115931.
The Solicitor General, representing the respondents, filed a consolidated comment, to which the
Philippine Airlines, Inc., petitioner in G.R. No. 115852, and the Philippine Press Institute, Inc.,
petitioner in G.R. No. 115544, and Juan T. David, petitioner in G.R. No. 115525, each filed a reply.
In turn the Solicitor General filed on June 1, 1995 a rejoinder to the PPI's reply.

On June 27, 1995 the matter was submitted for resolution.

I. Power of the Senate to propose amendments to revenue bills. Some of the petitioners (Tolentino,
Kilosbayan, Inc., Philippine Airlines (PAL), Roco, and Chamber of Real Estate and Builders
Association (CREBA)) reiterate previous claims made by them that R.A. No. 7716 did not "originate
exclusively" in the House of Representatives as required by Art. VI, §24 of the Constitution. Although
they admit that H. No. 11197 was filed in the House of Representatives where it passed three
readings and that afterward it was sent to the Senate where after first reading it was referred to the
Senate Ways and Means Committee, they complain that the Senate did not pass it on second and
third readings. Instead what the Senate did was to pass its own version (S. No. 1630) which it
approved on May 24, 1994. Petitioner Tolentino adds that what the Senate committee should have
done was to amend H. No. 11197 by striking out the text of the bill and substituting it with the text of
S. No. 1630. That way, it is said, "the bill remains a House bill and the Senate version just becomes
the text (only the text) of the House bill."

The contention has no merit.

The enactment of S. No. 1630 is not the only instance in which the Senate proposed an amendment
to a House revenue bill by enacting its own version of a revenue bill. On at least two occasions
during the Eighth Congress, the Senate passed its own version of revenue bills, which, in
consolidation with House bills earlier passed, became the enrolled bills. These were:

R.A. No. 7369 (AN ACT TO AMEND THE OMNIBUS INVESTMENTS CODE OF 1987 BY
EXTENDING FROM FIVE (5) YEARS TO TEN YEARS THE PERIOD FOR TAX AND DUTY
EXEMPTION AND TAX CREDIT ON CAPITAL EQUIPMENT) which was approved by the President
on April 10, 1992. This Act is actually a consolidation of H. No. 34254, which was approved by the
House on January 29, 1992, and S. No. 1920, which was approved by the Senate on February 3,
1992.

R.A. No. 7549 (AN ACT GRANTING TAX EXEMPTIONS TO WHOEVER SHALL GIVE REWARD
TO ANY FILIPINO ATHLETE WINNING A MEDAL IN OLYMPIC GAMES) which was approved by
the President on May 22, 1992. This Act is a consolidation of H. No. 22232, which was approved by
the House of Representatives on August 2, 1989, and S. No. 807, which was approved by the
Senate on October 21, 1991.

On the other hand, the Ninth Congress passed revenue laws which were also the result of the
consolidation of House and Senate bills. These are the following, with indications of the dates on
which the laws were approved by the President and dates the separate bills of the two chambers of
Congress were respectively passed:

1. R.A. NO. 7642

AN ACT INCREASING THE PENALTIES FOR TAX EVASION, AMENDING FOR

THIS PURPOSE THE PERTINENT SECTIONS OF THE NATIONAL INTERNAL
REVENUE CODE (December 28, 1992).
House Bill No. 2165, October 5, 1992

Senate Bill No. 32, December 7, 1992

2. R.A. NO. 7643

AN ACT TO EMPOWER THE COMMISSIONER OF INTERNAL REVENUE TO

REQUIRE THE PAYMENT OF THE VALUE-ADDED TAX EVERY MONTH AND TO
ALLOW LOCAL GOVERNMENT UNITS TO SHARE IN VAT REVENUE,
AMENDING FOR THIS PURPOSE CERTAIN SECTIONS OF THE NATIONAL
INTERNAL REVENUE CODE (December 28, 1992)

House Bill No. 1503, September 3, 1992

Senate Bill No. 968, December 7, 1992

3. R.A. NO. 7646

AN ACT AUTHORIZING THE COMMISSIONER OF INTERNAL REVENUE TO

PRESCRIBE THE PLACE FOR PAYMENT OF INTERNAL REVENUE TAXES BY
LARGE TAXPAYERS, AMENDING FOR THIS PURPOSE CERTAIN PROVISIONS
OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED (February 24,
1993)

House Bill No. 1470, October 20, 1992

Senate Bill No. 35, November 19, 1992

4. R.A. NO. 7649

AN ACT REQUIRING THE GOVERNMENT OR ANY OF ITS POLITICAL

SUBDIVISIONS, INSTRUMENTALITIES OR AGENCIES INCLUDING
GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS (GOCCS) TO
DEDUCT AND WITHHOLD THE VALUE-ADDED TAX DUE AT THE RATE OF
THREE PERCENT (3%) ON GROSS PAYMENT FOR THE PURCHASE OF
GOODS AND SIX PERCENT (6%) ON GROSS RECEIPTS FOR SERVICES
RENDERED BY CONTRACTORS (April 6, 1993)

House Bill No. 5260, January 26, 1993

Senate Bill No. 1141, March 30, 1993

5. R.A. NO. 7656

AN ACT REQUIRING GOVERNMENT-OWNED OR CONTROLLED

CORPORATIONS TO DECLARE DIVIDENDS UNDER CERTAIN CONDITIONS TO
THE NATIONAL GOVERNMENT, AND FOR OTHER PURPOSES (November 9,
1993)

House Bill No. 11024, November 3, 1993

 Senate Bill No. 1168, November 3, 1993

6. R.A. NO. 7660

AN ACT RATIONALIZING FURTHER THE STRUCTURE AND ADMINISTRATION

OF THE DOCUMENTARY STAMP TAX, AMENDING FOR THE PURPOSE
CERTAIN PROVISIONS OF THE NATIONAL INTERNAL REVENUE CODE, AS
AMENDED, ALLOCATING FUNDS FOR SPECIFIC PROGRAMS, AND FOR
OTHER PURPOSES (December 23, 1993)

House Bill No. 7789, May 31, 1993

Senate Bill No. 1330, November 18, 1993

7. R.A. NO. 7717

AN ACT IMPOSING A TAX ON THE SALE, BARTER OR EXCHANGE OF SHARES

OF STOCK LISTED AND TRADED THROUGH THE LOCAL STOCK EXCHANGE
OR THROUGH INITIAL PUBLIC OFFERING, AMENDING FOR THE PURPOSE
THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, BY INSERTING A
NEW SECTION AND REPEALING CERTAIN SUBSECTIONS THEREOF (May 5,
1994)

House Bill No. 9187, November 3, 1993

Senate Bill No. 1127, March 23, 1994

Thus, the enactment of S. No. 1630 is not the only instance in which the Senate, in the exercise of
its power to propose amendments to bills required to originate in the House, passed its own version
of a House revenue measure. It is noteworthy that, in the particular case of S. No. 1630, petitioners
Tolentino and Roco, as members of the Senate, voted to approve it on second and third readings.

On the other hand, amendment by substitution, in the manner urged by petitioner Tolentino,
concerns a mere matter of form. Petitioner has not shown what substantial difference it would make
if, as the Senate actually did in this case, a separate bill like S. No. 1630 is instead enacted as a
substitute measure, "taking into Consideration . . . H.B. 11197."

Indeed, so far as pertinent, the Rules of the Senate only provide:

RULE XXIX

AMENDMENTS

xxx xxx xxx

§68. Not more than one amendment to the original amendment shall be considered.

No amendment by substitution shall be entertained unless the text thereof is

submitted in writing.
 Any of said amendments may be withdrawn before a vote is taken thereon.

§69. No amendment which seeks the inclusion of a legislative provision foreign to the
subject matter of a bill (rider) shall be entertained.

xxx xxx xxx

§70-A. A bill or resolution shall not be amended by substituting it with another which
covers a subject distinct from that proposed in the original bill or resolution.
(emphasis added).

Nor is there merit in petitioners' contention that, with regard to revenue bills, the Philippine Senate
possesses less power than the U.S. Senate because of textual differences between constitutional
provisions giving them the power to propose or concur with amendments.

Art. I, §7, cl. 1 of the U.S. Constitution reads:

All Bills for raising Revenue shall originate in the House of Representatives; but the
Senate may propose or concur with amendments as on other Bills.

Art. VI, §24 of our Constitution reads:

All appropriation, revenue or tariff bills, bills authorizing increase of the public debt,
bills of local application, and private bills shall originate exclusively in the House of
Representatives, but the Senate may propose or concur with amendments.

The addition of the word "exclusively" in the Philippine Constitution and the decision to drop the
phrase "as on other Bills" in the American version, according to petitioners, shows the intention of
the framers of our Constitution to restrict the Senate's power to propose amendments to revenue
bills. Petitioner Tolentino contends that the word "exclusively" was inserted to modify "originate" and
"the words 'as in any other bills' (sic) were eliminated so as to show that these bills were not to be
like other bills but must be treated as a special kind."

The history of this provision does not support this contention. The supposed indicia of constitutional
intent are nothing but the relics of an unsuccessful attempt to limit the power of the Senate. It will be
recalled that the 1935 Constitution originally provided for a unicameral National Assembly. When it
was decided in 1939 to change to a bicameral legislature, it became necessary to provide for the
procedure for lawmaking by the Senate and the House of Representatives. The work of proposing
amendments to the Constitution was done by the National Assembly, acting as a constituent
assembly, some of whose members, jealous of preserving the Assembly's lawmaking powers,
sought to curtail the powers of the proposed Senate. Accordingly they proposed the following
provision:

All bills appropriating public funds, revenue or tariff bills, bills of local application, and
private bills shall originate exclusively in the Assembly, but the Senate may propose
or concur with amendments. In case of disapproval by the Senate of any such bills,
the Assembly may repass the same by a two-thirds vote of all its members, and
thereupon, the bill so repassed shall be deemed enacted and may be submitted to
the President for corresponding action. In the event that the Senate should fail to
finally act on any such bills, the Assembly may, after thirty days from the opening of
the next regular session of the same legislative term, reapprove the same with a vote
 of two-thirds of all the members of the Assembly. And upon such reapproval, the bill
shall be deemed enacted and may be submitted to the President for corresponding
action.

The special committee on the revision of laws of the Second National Assembly vetoed the proposal.
It deleted everything after the first sentence. As rewritten, the proposal was approved by the National
Assembly and embodied in Resolution No. 38, as amended by Resolution No. 73. (J. ARUEGO,
KNOW YOUR CONSTITUTION 65-66 (1950)). The proposed amendment was submitted to the
people and ratified by them in the elections held on June 18, 1940.

This is the history of Art. VI, §18 (2) of the 1935 Constitution, from which Art. VI, §24 of the present
Constitution was derived. It explains why the word "exclusively" was added to the American text from
which the framers of the Philippine Constitution borrowed and why the phrase "as on other Bills" was
not copied. Considering the defeat of the proposal, the power of the Senate to propose amendments
must be understood to be full, plenary and complete "as on other Bills." Thus, because revenue bills
are required to originate exclusively in the House of Representatives, the Senate cannot enact
revenue measures of its own without such bills. After a revenue bill is passed and sent over to it by
the House, however, the Senate certainly can pass its own version on the same subject matter. This
follows from the coequality of the two chambers of Congress.

That this is also the understanding of book authors of the scope of the Senate's power to concur is
clear from the following commentaries:

The power of the Senate to propose or concur with amendments is apparently

without restriction. It would seem that by virtue of this power, the Senate can
practically re-write a bill required to come from the House and leave only a trace of
the original bill. For example, a general revenue bill passed by the lower house of the
United States Congress contained provisions for the imposition of an inheritance tax .
This was changed by the Senate into a corporation tax. The amending authority of
the Senate was declared by the United States Supreme Court to be sufficiently broad
to enable it to make the alteration. [Flint v. Stone Tracy Company, 220 U.S. 107, 55
L. ed. 389].

(L. TAÑADA AND F. CARREON, POLITICAL LAW OF THE PHILIPPINES 247

(1961))

The above-mentioned bills are supposed to be initiated by the House of

Representatives because it is more numerous in membership and therefore also
more representative of the people. Moreover, its members are presumed to be more
familiar with the needs of the country in regard to the enactment of the legislation
involved.

The Senate is, however, allowed much leeway in the exercise of its power to propose
or concur with amendments to the bills initiated by the House of Representatives.
Thus, in one case, a bill introduced in the U.S. House of Representatives was
changed by the Senate to make a proposed inheritance tax a corporation tax. It is
also accepted practice for the Senate to introduce what is known as an amendment
by substitution, which may entirely replace the bill initiated in the House of
Representatives.

(I. CRUZ, PHILIPPINE POLITICAL LAW 144-145 (1993)).

In sum, while Art. VI, §24 provides that all appropriation, revenue or tariff bills, bills authorizing
increase of the public debt, bills of local application, and private bills must "originate exclusively in
the House of Representatives," it also adds, "but the Senate may propose or concur with
amendments." In the exercise of this power, the Senate may propose an entirely new bill as a
substitute measure. As petitioner Tolentino states in a high school text, a committee to which a bill is
referred may do any of the following:

(1) to endorse the bill without changes; (2) to make changes in the bill omitting or
adding sections or altering its language; (3) to make and endorse an entirely new bill
as a substitute, in which case it will be known as a committee bill; or (4) to make no
report at all.

(A. TOLENTINO, THE GOVERNMENT OF THE PHILIPPINES 258 (1950))

To except from this procedure the amendment of bills which are required to originate in the House
by prescribing that the number of the House bill and its other parts up to the enacting clause must be
preserved although the text of the Senate amendment may be incorporated in place of the original
body of the bill is to insist on a mere technicality. At any rate there is no rule prescribing this form. S.
No. 1630, as a substitute measure, is therefore as much an amendment of H. No. 11197 as any
which the Senate could have made.

II. S. No. 1630 a mere amendment of H. No. 11197. Petitioners' basic error is that they assume that
S. No. 1630 is an independent and distinct bill. Hence their repeated references to its certification
that it was passed by the Senate "in substitution of S.B. No. 1129, taking into consideration P.S.
Res. No. 734 and H.B. No. 11197," implying that there is something substantially different between
the reference to S. No. 1129 and the reference to H. No. 11197. From this premise, they conclude
that R.A. No. 7716 originated both in the House and in the Senate and that it is the product of two
"half-baked bills because neither H. No. 11197 nor S. No. 1630 was passed by both houses of
Congress."

In point of fact, in several instances the provisions of S. No. 1630, clearly appear to be mere
amendments of the corresponding provisions of H. No. 11197. The very tabular comparison of the
provisions of H. No. 11197 and S. No. 1630 attached as Supplement A to the basic petition of
petitioner Tolentino, while showing differences between the two bills, at the same time indicates that
the provisions of the Senate bill were precisely intended to be amendments to the House bill.

Without H. No. 11197, the Senate could not have enacted S. No. 1630. Because the Senate bill was
a mere amendment of the House bill, H. No. 11197 in its original form did not have to pass the
Senate on second and three readings. It was enough that after it was passed on first reading it was
referred to the Senate Committee on Ways and Means. Neither was it required that S. No. 1630 be
passed by the House of Representatives before the two bills could be referred to the Conference
Committee.

There is legislative precedent for what was done in the case of H. No. 11197 and S. No. 1630. When
the House bill and Senate bill, which became R.A. No. 1405 (Act prohibiting the disclosure of bank
deposits), were referred to a conference committee, the question was raised whether the two bills
could be the subject of such conference, considering that the bill from one house had not been
passed by the other and vice versa. As Congressman Duran put the question:

MR. DURAN. Therefore, I raise this question of order as to procedure: If a House bill
is passed by the House but not passed by the Senate, and a Senate bill of a similar
nature is passed in the Senate but never passed in the House, can the two bills be
 the subject of a conference, and can a law be enacted from these two bills? I
understand that the Senate bill in this particular instance does not refer to
investments in government securities, whereas the bill in the House, which was
introduced by the Speaker, covers two subject matters: not only investigation of
deposits in banks but also investigation of investments in government securities.
Now, since the two bills differ in their subject matter, I believe that no law can be
enacted.

Ruling on the point of order raised, the chair (Speaker Jose B. Laurel, Jr.) said:

THE SPEAKER. The report of the conference committee is in order. It is precisely in

cases like this where a conference should be had. If the House bill had been
approved by the Senate, there would have been no need of a conference; but
precisely because the Senate passed another bill on the same subject matter, the
conference committee had to be created, and we are now considering the report of
that committee.

(2 CONG. REC. NO. 13, July 27, 1955, pp. 3841-42 (emphasis added))

III. The President's certification. The fallacy in thinking that H. No. 11197 and S. No. 1630 are distinct
and unrelated measures also accounts for the petitioners' (Kilosbayan's and PAL's) contention that
because the President separately certified to the need for the immediate enactment of these
measures, his certification was ineffectual and void. The certification had to be made of the version
of the same revenue bill which at the moment was being considered. Otherwise, to follow petitioners'
theory, it would be necessary for the President to certify as many bills as are presented in a house of
Congress even though the bills are merely versions of the bill he has already certified. It is enough
that he certifies the bill which, at the time he makes the certification, is under consideration. Since on
March 22, 1994 the Senate was considering S. No. 1630, it was that bill which had to be certified.
For that matter on June 1, 1993 the President had earlier certified H. No. 9210 for immediate
enactment because it was the one which at that time was being considered by the House. This bill
was later substituted, together with other bills, by H. No. 11197.

As to what Presidential certification can accomplish, we have already explained in the main decision
that the phrase "except when the President certifies to the necessity of its immediate enactment,
etc." in Art. VI, §26 (2) qualifies not only the requirement that "printed copies [of a bill] in its final form
[must be] distributed to the members three days before its passage" but also the requirement that
before a bill can become a law it must have passed "three readings on separate days." There is not
only textual support for such construction but historical basis as well.

Art. VI, §21 (2) of the 1935 Constitution originally provided:

(2) No bill shall be passed by either House unless it shall have been printed and
copies thereof in its final form furnished its Members at least three calendar days
prior to its passage, except when the President shall have certified to the necessity of
its immediate enactment. Upon the last reading of a bill, no amendment thereof shall
be allowed and the question upon its passage shall be taken immediately thereafter,
and the yeas and nays entered on the Journal.

When the 1973 Constitution was adopted, it was provided in Art. VIII, §19 (2):

(2) No bill shall become a law unless it has passed three readings on separate days,
and printed copies thereof in its final form have been distributed to the Members
 three days before its passage, except when the Prime Minister certifies to the
necessity of its immediate enactment to meet a public calamity or emergency. Upon
the last reading of a bill, no amendment thereto shall be allowed, and the vote
thereon shall be taken immediately thereafter, and the yeas and nays entered in the
Journal.

This provision of the 1973 document, with slight modification, was adopted in Art. VI, §26 (2) of the
present Constitution, thus:

(2) No bill passed by either House shall become a law unless it has passed three
readings on separate days, and printed copies thereof in its final form have been
distributed to its Members three days before its passage, except when the President
certifies to the necessity of its immediate enactment to meet a public calamity or
emergency. Upon the last reading of a bill, no amendment thereto shall be allowed,
and the vote thereon shall be taken immediately thereafter, and
the yeas and nays entered in the Journal.

The exception is based on the prudential consideration that if in all cases three readings on separate
days are required and a bill has to be printed in final form before it can be passed, the need for a law
may be rendered academic by the occurrence of the very emergency or public calamity which it is
meant to address.

Petitioners further contend that a "growing budget deficit" is not an emergency, especially in a
country like the Philippines where budget deficit is a chronic condition. Even if this were the case, an
enormous budget deficit does not make the need for R.A. No. 7716 any less urgent or the situation
calling for its enactment any less an emergency.

Apparently, the members of the Senate (including some of the petitioners in these cases) believed
that there was an urgent need for consideration of S. No. 1630, because they responded to the call
of the President by voting on the bill on second and third readings on the same day. While the
judicial department is not bound by the Senate's acceptance of the President's certification, the
respect due coequal departments of the government in matters committed to them by the
Constitution and the absence of a clear showing of grave abuse of discretion caution a stay of the
judicial hand.

At any rate, we are satisfied that S. No. 1630 received thorough consideration in the Senate where it
was discussed for six days. Only its distribution in advance in its final printed form was actually
dispensed with by holding the voting on second and third readings on the same day (March 24,
1994). Otherwise, sufficient time between the submission of the bill on February 8, 1994 on second
reading and its approval on March 24, 1994 elapsed before it was finally voted on by the Senate on
third reading.

The purpose for which three readings on separate days is required is said to be two-fold: (1) to
inform the members of Congress of what they must vote on and (2) to give them notice that a
measure is progressing through the enacting process, thus enabling them and others interested in
the measure to prepare their positions with reference to it. (1 J. G. SUTHERLAND, STATUTES AND
STATUTORY CONSTRUCTION §10.04, p. 282 (1972)). These purposes were substantially
achieved in the case of R.A. No. 7716.

IV. Power of Conference Committee. It is contended (principally by Kilosbayan, Inc. and the

Movement of Attorneys for Brotherhood, Integrity and Nationalism, Inc. (MABINI)) that in violation of
the constitutional policy of full public disclosure and the people's right to know (Art. II, §28 and Art.
III, §7) the Conference Committee met for two days in executive session with only the conferees
present.

As pointed out in our main decision, even in the United States it was customary to hold such
sessions with only the conferees and their staffs in attendance and it was only in 1975 when a new
rule was adopted requiring open sessions. Unlike its American counterpart, the Philippine Congress
has not adopted a rule prescribing open hearings for conference committees.

It is nevertheless claimed that in the United States, before the adoption of the rule in 1975, at least
staff members were present. These were staff members of the Senators and Congressmen,
however, who may be presumed to be their confidential men, not stenographers as in this case who
on the last two days of the conference were excluded. There is no showing that the conferees
themselves did not take notes of their proceedings so as to give petitioner Kilosbayan basis for
claiming that even in secret diplomatic negotiations involving state interests, conferees keep notes of
their meetings. Above all, the public's right to know was fully served because the Conference
Committee in this case submitted a report showing the changes made on the differing versions of
the House and the Senate.

Petitioners cite the rules of both houses which provide that conference committee reports must
contain "a detailed, sufficiently explicit statement of the changes in or other amendments." These
changes are shown in the bill attached to the Conference Committee Report. The members of both
houses could thus ascertain what changes had been made in the original bills without the need of a
statement detailing the changes.

The same question now presented was raised when the bill which became R.A. No. 1400 (Land
Reform Act of 1955) was reported by the Conference Committee. Congressman Bengzon raised a
point of order. He said:

MR. BENGZON. My point of order is that it is out of order to consider the report of
the conference committee regarding House Bill No. 2557 by reason of the provision
of Section 11, Article XII, of the Rules of this House which provides specifically that
the conference report must be accompanied by a detailed statement of the effects of
the amendment on the bill of the House. This conference committee report is not
accompanied by that detailed statement, Mr. Speaker. Therefore it is out of order to
consider it.

Petitioner Tolentino, then the Majority Floor Leader, answered:

MR. TOLENTINO. Mr. Speaker, I should just like to say a few words in connection
with the point of order raised by the gentleman from Pangasinan.

There is no question about the provision of the Rule cited by the gentleman from
Pangasinan, but this provision applies to those cases where only portions of the bill
have been amended. In this case before us an entire bill is presented; therefore, it
can be easily seen from the reading of the bill what the provisions are. Besides, this
procedure has been an established practice.

After some interruption, he continued:

MR. TOLENTINO. As I was saying, Mr. Speaker, we have to look into the reason for
the provisions of the Rules, and the reason for the requirement in the provision cited
 by the gentleman from Pangasinan is when there are only certain words or phrases
inserted in or deleted from the provisions of the bill included in the conference report,
and we cannot understand what those words and phrases mean and their relation to
the bill. In that case, it is necessary to make a detailed statement on how those
words and phrases will affect the bill as a whole; but when the entire bill itself is
copied verbatim in the conference report, that is not necessary. So when the reason
for the Rule does not exist, the Rule does not exist.

(2 CONG. REC. NO. 2, p. 4056. (emphasis added))

Congressman Tolentino was sustained by the chair. The record shows that when the ruling was
appealed, it was upheld by viva voce and when a division of the House was called, it was sustained
by a vote of 48 to 5. (Id.,
p. 4058)

Nor is there any doubt about the power of a conference committee to insert new provisions as long
as these are germane to the subject of the conference. As this Court held in Philippine Judges
Association v. Prado, 227 SCRA 703 (1993), in an opinion written by then Justice Cruz, the
jurisdiction of the conference committee is not limited to resolving differences between the Senate
and the House. It may propose an entirely new provision. What is important is that its report is
subsequently approved by the respective houses of Congress. This Court ruled that it would not
entertain allegations that, because new provisions had been added by the conference committee,
there was thereby a violation of the constitutional injunction that "upon the last reading of a bill, no
amendment thereto shall be allowed."

Applying these principles, we shall decline to look into the petitioners' charges that

an amendment was made upon the last reading of the bill that eventually became
R.A. No. 7354 and that copies thereof in its final form were not distributed among the
members of each House. Both the enrolled bill and the legislative journals certify that
the measure was duly enacted i.e., in accordance with Article VI, Sec. 26 (2) of the
Constitution. We are bound by such official assurances from a coordinate
department of the government, to which we owe, at the very least, a becoming
courtesy.

(Id. at 710. (emphasis added))

It is interesting to note the following description of conference committees in the Philippines in a

1979 study:

Conference committees may be of two types: free or instructed. These committees

may be given instructions by their parent bodies or they may be left without
instructions. Normally the conference committees are without instructions, and this is
why they are often critically referred to as "the little legislatures." Once bills have
been sent to them, the conferees have almost unlimited authority to change the
clauses of the bills and in fact sometimes introduce new measures that were not in
the original legislation. No minutes are kept, and members' activities on conference
committees are difficult to determine. One congressman known for his idealism put it
this way: "I killed a bill on export incentives for my interest group [copra] in the
conference committee but I could not have done so anywhere else." The conference
committee submits a report to both houses, and usually it is accepted. If the report is
not accepted, then the committee is discharged and new members are appointed.
 (R. Jackson, Committees in the Philippine Congress, in COMMITTEES AND
LEGISLATURES: A COMPARATIVE ANALYSIS 163 (J. D. LEES AND M. SHAW,
eds.)).

In citing this study, we pass no judgment on the methods of conference committees. We cite it only
to say that conference committees here are no different from their counterparts in the United States
whose vast powers we noted in Philippine Judges Association v. Prado, supra. At all events, under
Art. VI, §16(3) each house has the power "to determine the rules of its proceedings," including those
of its committees. Any meaningful change in the method and procedures of Congress or its
committees must therefore be sought in that body itself.

V. The titles of S. No. 1630 and H. No. 11197. PAL maintains that R.A. No. 7716 violates Art. VI, §26
(1) of the Constitution which provides that "Every bill passed by Congress shall embrace only one
subject which shall be expressed in the title thereof." PAL contends that the amendment of its
franchise by the withdrawal of its exemption from the VAT is not expressed in the title of the law.

Pursuant to §13 of P.D. No. 1590, PAL pays a franchise tax of 2% on its gross revenue "in lieu of all
other taxes, duties, royalties, registration, license and other fees and charges of any kind, nature, or
description, imposed, levied, established, assessed or collected by any municipal, city, provincial or
national authority or government agency, now or in the future."

PAL was exempted from the payment of the VAT along with other entities by §103 of the National
Internal Revenue Code, which provides as follows:

§103. Exempt transactions. — The following shall be exempt from the value-added

tax:

xxx xxx xxx

(q) Transactions which are exempt under special laws or international agreements to
which the Philippines is a signatory.

R.A. No. 7716 seeks to withdraw certain exemptions, including that granted to PAL, by amending
§103, as follows:

§103. Exempt transactions. — The following shall be exempt from the value-added

tax:

xxx xxx xxx

(q) Transactions which are exempt under special laws, except those granted under
Presidential Decree Nos. 66, 529, 972, 1491, 1590. . . .

The amendment of §103 is expressed in the title of R.A. No. 7716 which reads:

AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM, WIDENING

ITS TAX BASE AND ENHANCING ITS ADMINISTRATION, AND FOR THESE
PURPOSES AMENDING AND REPEALING THE RELEVANT PROVISIONS OF
THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, AND FOR OTHER
PURPOSES.
By stating that R.A. No. 7716 seeks to "[RESTRUCTURE] THE VALUE-ADDED TAX (VAT)
SYSTEM [BY] WIDENING ITS TAX BASE AND ENHANCING ITS ADMINISTRATION, AND FOR
THESE PURPOSES AMENDING AND REPEALING THE RELEVANT PROVISIONS OF THE
NATIONAL INTERNAL REVENUE CODE, AS AMENDED AND FOR OTHER PURPOSES,"
Congress thereby clearly expresses its intention to amend any provision of the NIRC which stands in
the way of accomplishing the purpose of the law.

PAL asserts that the amendment of its franchise must be reflected in the title of the law by specific
reference to P.D. No. 1590. It is unnecessary to do this in order to comply with the constitutional
requirement, since it is already stated in the title that the law seeks to amend the pertinent provisions
of the NIRC, among which is §103(q), in order to widen the base of the VAT. Actually, it is the bill
which becomes a law that is required to express in its title the subject of legislation. The titles of H.
No. 11197 and S. No. 1630 in fact specifically referred to §103 of the NIRC as among the provisions
sought to be amended. We are satisfied that sufficient notice had been given of the pendency of
these bills in Congress before they were enacted into what is now R.A.
No. 7716.

In Philippine Judges Association v. Prado, supra, a similar argument as that now made by PAL was
rejected. R.A. No. 7354 is entitled AN ACT CREATING THE PHILIPPINE POSTAL CORPORATION,
DEFINING ITS POWERS, FUNCTIONS AND RESPONSIBILITIES, PROVIDING FOR
REGULATION OF THE INDUSTRY AND FOR OTHER PURPOSES CONNECTED THEREWITH. It
contained a provision repealing all franking privileges. It was contended that the withdrawal of
franking privileges was not expressed in the title of the law. In holding that there was sufficient
description of the subject of the law in its title, including the repeal of franking privileges, this Court
held:

To require every end and means necessary for the accomplishment of the general
objectives of the statute to be expressed in its title would not only be unreasonable
but would actually render legislation impossible. [Cooley, Constitutional Limitations,
8th Ed., p. 297] As has been correctly explained:

The details of a legislative act need not be specifically stated in its

title, but matter germane to the subject as expressed in the title, and
adopted to the accomplishment of the object in view, may properly be
included in the act. Thus, it is proper to create in the same act the
machinery by which the act is to be enforced, to prescribe the
penalties for its infraction, and to remove obstacles in the way of its
execution. If such matters are properly connected with the subject as
expressed in the title, it is unnecessary that they should also have
special mention in the title. (Southern Pac. Co. v. Bartine, 170 Fed.
725)

(227 SCRA at 707-708)

VI. Claims of press freedom and religious liberty. We have held that, as a general proposition, the
press is not exempt from the taxing power of the State and that what the constitutional guarantee of
free press prohibits are laws which single out the press or target a group belonging to the press for
special treatment or which in any way discriminate against the press on the basis of the content of
the publication, and R.A. No. 7716 is none of these.
Now it is contended by the PPI that by removing the exemption of the press from the VAT while
maintaining those granted to others, the law discriminates against the press. At any rate, it is
averred, "even nondiscriminatory taxation of constitutionally guaranteed freedom is unconstitutional."

With respect to the first contention, it would suffice to say that since the law granted the press a
privilege, the law could take back the privilege anytime without offense to the Constitution. The
reason is simple: by granting exemptions, the State does not forever waive the exercise of its
sovereign prerogative.

Indeed, in withdrawing the exemption, the law merely subjects the press to the same tax burden to
which other businesses have long ago been subject. It is thus different from the tax involved in the
cases invoked by the PPI. The license tax in Grosjean v. American Press Co., 297 U.S. 233, 80 L.
Ed. 660 (1936) was found to be discriminatory because it was laid on the gross advertising receipts
only of newspapers whose weekly circulation was over 20,000, with the result that the tax applied
only to 13 out of 124 publishers in Louisiana. These large papers were critical of Senator Huey Long
who controlled the state legislature which enacted the license tax. The censorial motivation for the
law was thus evident.

On the other hand, in Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S.
575, 75 L. Ed. 2d 295 (1983), the tax was found to be discriminatory because although it could have
been made liable for the sales tax or, in lieu thereof, for the use tax on the privilege of using, storing
or consuming tangible goods, the press was not. Instead, the press was exempted from both taxes.
It was, however, later made to pay a special use tax on the cost of paper and ink which made these
items "the only items subject to the use tax that were component of goods to be sold at retail." The
U.S. Supreme Court held that the differential treatment of the press "suggests that the goal of
regulation is not related to suppression of expression, and such goal is presumptively
unconstitutional." It would therefore appear that even a law that favors the press is constitutionally
suspect. (See the dissent of Rehnquist, J. in that case)

Nor is it true that only two exemptions previously granted by E.O. No. 273 are withdrawn "absolutely
and unqualifiedly" by R.A. No. 7716. Other exemptions from the VAT, such as those previously
granted to PAL, petroleum concessionaires, enterprises registered with the Export Processing Zone
Authority, and many more are likewise totally withdrawn, in addition to exemptions which are partially
withdrawn, in an effort to broaden the base of the tax.

The PPI says that the discriminatory treatment of the press is highlighted by the fact that
transactions, which are profit oriented, continue to enjoy exemption under R.A. No. 7716. An
enumeration of some of these transactions will suffice to show that by and large this is not so and
that the exemptions are granted for a purpose. As the Solicitor General says, such exemptions are
granted, in some cases, to encourage agricultural production and, in other cases, for the personal
benefit of the end-user rather than for profit. The exempt transactions are:

(a) Goods for consumption or use which are in their original state (agricultural,
marine and forest products, cotton seeds in their original state, fertilizers, seeds,
seedlings, fingerlings, fish, prawn livestock and poultry feeds) and goods or services
to enhance agriculture (milling of palay, corn, sugar cane and raw sugar, livestock,
poultry feeds, fertilizer, ingredients used for the manufacture of feeds).

(b) Goods used for personal consumption or use (household and personal effects of
citizens returning to the Philippines) or for professional use, like professional
instruments and implements, by persons coming to the Philippines to settle here.
 (c) Goods subject to excise tax such as petroleum products or to be used for
manufacture of petroleum products subject to excise tax and services subject to
percentage tax.

(d) Educational services, medical, dental, hospital and veterinary services, and
services rendered under employer-employee relationship.

(e) Works of art and similar creations sold by the artist himself.

(f) Transactions exempted under special laws, or international agreements.

(g) Export-sales by persons not VAT-registered.

(h) Goods or services with gross annual sale or receipt not exceeding P500,000.00.

(Respondents' Consolidated Comment on the Motions for Reconsideration, pp. 58-

60)

The PPI asserts that it does not really matter that the law does not discriminate against the press
because "even nondiscriminatory taxation on constitutionally guaranteed freedom is
unconstitutional." PPI cites in support of this assertion the following statement in Murdock
v. Pennsylvania, 319 U.S. 105, 87 L. Ed. 1292 (1943):

The fact that the ordinance is "nondiscriminatory" is immaterial. The protection

afforded by the First Amendment is not so restricted. A license tax certainly does not
acquire constitutional validity because it classifies the privileges protected by the
First Amendment along with the wares and merchandise of hucksters and peddlers
and treats them all alike. Such equality in treatment does not save the ordinance.
Freedom of press, freedom of speech, freedom of religion are in preferred position.

The Court was speaking in that case of a license tax, which, unlike an ordinary tax, is mainly for
regulation. Its imposition on the press is unconstitutional because it lays a prior restraint on the
exercise of its right. Hence, although its application to others, such those selling goods, is valid, its
application to the press or to religious groups, such as the Jehovah's Witnesses, in connection with
the latter's sale of religious books and pamphlets, is unconstitutional. As the U.S. Supreme Court put
it, "it is one thing to impose a tax on income or property of a preacher. It is quite another thing to
exact a tax on him for delivering a sermon."

A similar ruling was made by this Court in American Bible Society v. City of Manila, 101 Phil. 386
(1957) which invalidated a city ordinance requiring a business license fee on those engaged in the
sale of general merchandise. It was held that the tax could not be imposed on the sale of bibles by
the American Bible Society without restraining the free exercise of its right to propagate.

The VAT is, however, different. It is not a license tax. It is not a tax on the exercise of a privilege,
much less a constitutional right. It is imposed on the sale, barter, lease or exchange of goods or
properties or the sale or exchange of services and the lease of properties purely for revenue
purposes. To subject the press to its payment is not to burden the exercise of its right any more than
to make the press pay income tax or subject it to general regulation is not to violate its freedom
under the Constitution.
Additionally, the Philippine Bible Society, Inc. claims that although it sells bibles, the proceeds
derived from the sales are used to subsidize the cost of printing copies which are given free to those
who cannot afford to pay so that to tax the sales would be to increase the price, while reducing the
volume of sale. Granting that to be the case, the resulting burden on the exercise of religious
freedom is so incidental as to make it difficult to differentiate it from any other economic imposition
that might make the right to disseminate religious doctrines costly. Otherwise, to follow the
petitioner's argument, to increase the tax on the sale of vestments would be to lay an impermissible
burden on the right of the preacher to make a sermon.

On the other hand the registration fee of P1,000.00 imposed by §107 of the NIRC, as amended by
§7 of R.A. No. 7716, although fixed in amount, is really just to pay for the expenses of registration
and enforcement of provisions such as those relating to accounting in §108 of the NIRC. That the
PBS distributes free bibles and therefore is not liable to pay the VAT does not excuse it from the
payment of this fee because it also sells some copies. At any rate whether the PBS is liable for the
VAT must be decided in concrete cases, in the event it is assessed this tax by the Commissioner of
Internal Revenue.

VII. Alleged violations of the due process, equal protection and contract clauses and the rule on
taxation. CREBA asserts that R.A. No. 7716 (1) impairs the obligations of contracts, (2) classifies
transactions as covered or exempt without reasonable basis and (3) violates the rule that taxes
should be uniform and equitable and that Congress shall "evolve a progressive system of taxation."

With respect to the first contention, it is claimed that the application of the tax to existing contracts of
the sale of real property by installment or on deferred payment basis would result in substantial
increases in the monthly amortizations to be paid because of the 10% VAT. The additional amount, it
is pointed out, is something that the buyer did not anticipate at the time he entered into the contract.

The short answer to this is the one given by this Court in an early case: "Authorities from numerous
sources are cited by the plaintiffs, but none of them show that a lawful tax on a new subject, or an
increased tax on an old one, interferes with a contract or impairs its obligation, within the meaning of
the Constitution. Even though such taxation may affect particular contracts, as it may increase the
debt of one person and lessen the security of another, or may impose additional burdens upon one
class and release the burdens of another, still the tax must be paid unless prohibited by the
Constitution, nor can it be said that it impairs the obligation of any existing contract in its true legal
sense." (La Insular v. Machuca Go-Tauco and Nubla Co-Siong, 39 Phil. 567, 574 (1919)). Indeed not
only existing laws but also "the reservation of the essential attributes of sovereignty, is . . . read into
contracts as a postulate of the legal order." (Philippine-American Life Ins. Co. v. Auditor General, 22
SCRA 135, 147 (1968)) Contracts must be understood as having been made in reference to the
possible exercise of the rightful authority of the government and no obligation of contract can extend
to the defeat of that authority. (Norman v. Baltimore and Ohio R.R., 79 L. Ed. 885 (1935)).

It is next pointed out that while §4 of R.A. No. 7716 exempts such transactions as the sale of
agricultural products, food items, petroleum, and medical and veterinary services, it grants no
exemption on the sale of real property which is equally essential. The sale of real property for
socialized and low-cost housing is exempted from the tax, but CREBA claims that real estate
transactions of "the less poor," i.e., the middle class, who are equally homeless, should likewise be
exempted.

The sale of food items, petroleum, medical and veterinary services, etc., which are essential goods
and services was already exempt under §103, pars. (b) (d) (1) of the NIRC before the enactment of
R.A. No. 7716. Petitioner is in error in claiming that R.A. No. 7716 granted exemption to these
transactions, while subjecting those of petitioner to the payment of the VAT. Moreover, there is a
difference between the "homeless poor" and the "homeless less poor" in the example given by
petitioner, because the second group or middle class can afford to rent houses in the meantime that
they cannot yet buy their own homes. The two social classes are thus differently situated in life. "It is
inherent in the power to tax that the State be free to select the subjects of taxation, and it has been
repeatedly held that 'inequalities which result from a singling out of one particular class for taxation,
or exemption infringe no constitutional limitation.'" (Lutz v. Araneta, 98 Phil. 148, 153 (1955). Accord,
City of Baguio v. De Leon, 134 Phil. 912 (1968); Sison, Jr. v. Ancheta, 130 SCRA 654, 663 (1984);
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 371 (1988)).

Finally, it is contended, for the reasons already noted, that R.A. No. 7716 also violates Art. VI, §28(1)
which provides that "The rule of taxation shall be uniform and equitable. The Congress shall evolve a
progressive system of taxation."

Equality and uniformity of taxation means that all taxable articles or kinds of property of the same
class be taxed at the same rate. The taxing power has the authority to make reasonable and natural
classifications for purposes of taxation. To satisfy this requirement it is enough that the statute or
ordinance applies equally to all persons, forms and corporations placed in similar situation. (City of
Baguio v. De Leon, supra; Sison, Jr. v. Ancheta, supra)

Indeed, the VAT was already provided in E.O. No. 273 long before R.A. No. 7716 was enacted. R.A.
No. 7716 merely expands the base of the tax. The validity of the original VAT Law was questioned
in Kapatiran ng Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 383 (1988) on
grounds similar to those made in these cases, namely, that the law was "oppressive, discriminatory,
unjust and regressive in violation of Art. VI, §28(1) of the Constitution." (At 382) Rejecting the
challenge to the law, this Court held:

As the Court sees it, EO 273 satisfies all the requirements of a valid tax. It is uniform.
...

The sales tax adopted in EO 273 is applied similarly on all goods and services sold
to the public, which are not exempt, at the constant rate of 0% or 10%.

The disputed sales tax is also equitable. It is imposed only on sales of goods or
services by persons engaged in business with an aggregate gross annual sales
exceeding P200,000.00. Small corner sari-sari stores are consequently exempt from
its application. Likewise exempt from the tax are sales of farm and marine products,
so that the costs of basic food and other necessities, spared as they are from the
incidence of the VAT, are expected to be relatively lower and within the reach of the
general public.

(At 382-383)

The CREBA claims that the VAT is regressive. A similar claim is made by the Cooperative Union of
the Philippines, Inc. (CUP), while petitioner Juan T. David argues that the law contravenes the
mandate of Congress to provide for a progressive system of taxation because the law imposes a flat
rate of 10% and thus places the tax burden on all taxpayers without regard to their ability to pay.

The Constitution does not really prohibit the imposition of indirect taxes which, like the VAT, are
regressive. What it simply provides is that Congress shall "evolve a progressive system of taxation."
The constitutional provision has been interpreted to mean simply that "direct taxes are . . . to be
preferred [and] as much as possible, indirect taxes should be minimized." (E. FERNANDO, THE
CONSTITUTION OF THE PHILIPPINES 221 (Second ed. (1977)). Indeed, the mandate to Congress
is not to prescribe, but to evolve, a progressive tax system. Otherwise, sales taxes, which perhaps
are the oldest form of indirect taxes, would have been prohibited with the proclamation of Art. VIII,
§17(1) of the 1973 Constitution from which the present Art. VI, §28(1) was taken. Sales taxes are
also regressive.

Resort to indirect taxes should be minimized but not avoided entirely because it is difficult, if not

impossible, to avoid them by imposing such taxes according to the taxpayers' ability to pay. In the
case of the VAT, the law minimizes the regressive effects of this imposition by providing for zero
rating of certain transactions (R.A. No. 7716, §3, amending §102 (b) of the NIRC), while
granting exemptions to other transactions. (R.A. No. 7716, §4, amending §103 of the NIRC).

Thus, the following transactions involving basic and essential goods and services are exempted from
the VAT:

(a) Goods for consumption or use which are in their original state (agricultural,
marine and forest products, cotton seeds in their original state, fertilizers, seeds,
seedlings, fingerlings, fish, prawn livestock and poultry feeds) and goods or services
to enhance agriculture (milling of palay, corn sugar cane and raw sugar, livestock,
poultry feeds, fertilizer, ingredients used for the manufacture of feeds).

(b) Goods used for personal consumption or use (household and personal effects of
citizens returning to the Philippines) and or professional use, like professional
instruments and implements, by persons coming to the Philippines to settle here.

(c) Goods subject to excise tax such as petroleum products or to be used for
manufacture of petroleum products subject to excise tax and services subject to
percentage tax.

(d) Educational services, medical, dental, hospital and veterinary services, and
services rendered under employer-employee relationship.

(e) Works of art and similar creations sold by the artist himself.

(f) Transactions exempted under special laws, or international agreements.

(g) Export-sales by persons not VAT-registered.

(h) Goods or services with gross annual sale or receipt not exceeding P500,000.00.

(Respondents' Consolidated Comment on the Motions for Reconsideration, pp. 58-

60)

On the other hand, the transactions which are subject to the VAT are those which involve goods and
services which are used or availed of mainly by higher income groups. These include real properties
held primarily for sale to customers or for lease in the ordinary course of trade or business, the right
or privilege to use patent, copyright, and other similar property or right, the right or privilege to use
industrial, commercial or scientific equipment, motion picture films, tapes and discs, radio, television,
satellite transmission and cable television time, hotels, restaurants and similar places, securities,
lending investments, taxicabs, utility cars for rent, tourist buses, and other common carriers, services
of franchise grantees of telephone and telegraph.
The problem with CREBA's petition is that it presents broad claims of constitutional violations by
tendering issues not at retail but at wholesale and in the abstract. There is no fully developed record
which can impart to adjudication the impact of actuality. There is no factual foundation to show in
the concrete the application of the law to actual contracts and exemplify its effect on property rights.
For the fact is that petitioner's members have not even been assessed the VAT. Petitioner's case is
not made concrete by a series of hypothetical questions asked which are no different from those
dealt with in advisory opinions.

The difficulty confronting petitioner is thus apparent. He alleges arbitrariness. A mere

allegation, as here, does not suffice. There must be a factual foundation of such
unconstitutional taint. Considering that petitioner here would condemn such a
provision as void on its face, he has not made out a case. This is merely to adhere to
the authoritative doctrine that where the due process and equal protection clauses
are invoked, considering that they are not fixed rules but rather broad standards,
there is a need for proof of such persuasive character as would lead to such a
conclusion. Absent such a showing, the presumption of validity must prevail.

(Sison, Jr. v. Ancheta, 130 SCRA at 661)

Adjudication of these broad claims must await the development of a concrete case. It may be that
postponement of adjudication would result in a multiplicity of suits. This need not be the case,
however. Enforcement of the law may give rise to such a case. A test case, provided it is an actual
case and not an abstract or hypothetical one, may thus be presented.

Nor is hardship to taxpayers alone an adequate justification for adjudicating abstract issues.
Otherwise, adjudication would be no different from the giving of advisory opinion that does not really
settle legal issues.

We are told that it is our duty under Art. VIII, §1, ¶2 to decide whenever a claim is made that "there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government." This duty can only arise if an actual case or
controversy is before us. Under Art . VIII, §5 our jurisdiction is defined in terms of "cases" and all that
Art. VIII, §1, ¶2 can plausibly mean is that in the exercise of that jurisdiction we have the judicial
power to determine questions of grave abuse of discretion by any branch or instrumentality of the
government.

Put in another way, what is granted in Art. VIII, §1, ¶2 is "judicial power," which is "the power of a
court to hear and decide cases pending between parties who have the right to sue and be sued in
the courts of law and equity" (Lamb v. Phipps, 22 Phil. 456, 559 (1912)), as distinguished from
legislative and executive power. This power cannot be directly appropriated until it is apportioned
among several courts either by the Constitution, as in the case of Art. VIII, §5, or by statute, as in the
case of the Judiciary Act of 1948 (R.A. No. 296) and the Judiciary Reorganization Act of 1980 (B.P.
Blg. 129). The power thus apportioned constitutes the court's "jurisdiction," defined as "the power
conferred by law upon a court or judge to take cognizance of a case, to the exclusion of all others."
(United States v. Arceo, 6 Phil. 29 (1906)) Without an actual case coming within its jurisdiction, this
Court cannot inquire into any allegation of grave abuse of discretion by the other departments of the
government.

VIII. Alleged violation of policy towards cooperatives. On the other hand, the Cooperative Union of
the Philippines (CUP), after briefly surveying the course of legislation, argues that it was to adopt a
definite policy of granting tax exemption to cooperatives that the present Constitution embodies
provisions on cooperatives. To subject cooperatives to the VAT would therefore be to infringe a
constitutional policy. Petitioner claims that in 1973, P.D. No. 175 was promulgated exempting
cooperatives from the payment of income taxes and sales taxes but in 1984, because of the crisis
which menaced the national economy, this exemption was withdrawn by P.D. No. 1955; that in 1986,
P.D. No. 2008 again granted cooperatives exemption from income and sales taxes until December
31, 1991, but, in the same year, E.O. No. 93 revoked the exemption; and that finally in 1987 the
framers of the Constitution "repudiated the previous actions of the government adverse to the
interests of the cooperatives, that is, the repeated revocation of the tax exemption to
cooperatives and instead upheld the policy of strengthening the cooperatives by way of the grant of
tax exemptions," by providing the following in Art. XII:

§1. The goals of the national economy are a more equitable distribution of
opportunities, income, and wealth; a sustained increase in the amount of goods and
services produced by the nation for the benefit of the people; and an expanding
productivity as the key to raising the quality of life for all, especially the
underprivileged.

The State shall promote industrialization and full employment based on sound
agricultural development and agrarian reform, through industries that make full and
efficient use of human and natural resources, and which are competitive in both
domestic and foreign markets. However, the State shall protect Filipino enterprises
against unfair foreign competition and trade practices.

In the pursuit of these goals, all sectors of the economy and all regions of the country
shall be given optimum opportunity to develop. Private enterprises, including
corporations, cooperatives, and similar collective organizations, shall be encouraged
to broaden the base of their ownership.

§15. The Congress shall create an agency to promote the viability and growth of
cooperatives as instruments for social justice and economic development.

Petitioner's contention has no merit. In the first place, it is not true that P.D. No. 1955 singled out
cooperatives by withdrawing their exemption from income and sales taxes under P.D. No. 175, §5.
What P.D. No. 1955, §1 did was to withdraw the exemptions and preferential treatments theretofore
granted to private business enterprises in general, in view of the economic crisis which then beset
the nation. It is true that after P.D. No. 2008, §2 had restored the tax exemptions of cooperatives in
1986, the exemption was again repealed by E.O. No. 93, §1, but then again cooperatives were not
the only ones whose exemptions were withdrawn. The withdrawal of tax incentives applied to all,
including government and private entities. In the second place, the Constitution does not really
require that cooperatives be granted tax exemptions in order to promote their growth and viability.
Hence, there is no basis for petitioner's assertion that the government's policy toward cooperatives
had been one of vacillation, as far as the grant of tax privileges was concerned, and that it was to put
an end to this indecision that the constitutional provisions cited were adopted. Perhaps as a matter
of policy cooperatives should be granted tax exemptions, but that is left to the discretion of
Congress. If Congress does not grant exemption and there is no discrimination to cooperatives, no
violation of any constitutional policy can be charged.

Indeed, petitioner's theory amounts to saying that under the Constitution cooperatives are exempt
from taxation. Such theory is contrary to the Constitution under which only the following are exempt
from taxation: charitable institutions, churches and parsonages, by reason of Art. VI, §28 (3), and
non-stock, non-profit educational institutions by reason of Art. XIV, §4 (3).
CUP's further ground for seeking the invalidation of R.A. No. 7716 is that it denies cooperatives the
equal protection of the law because electric cooperatives are exempted from the VAT. The
classification between electric and other cooperatives (farmers cooperatives, producers
cooperatives, marketing cooperatives, etc.) apparently rests on a congressional determination that
there is greater need to provide cheaper electric power to as many people as possible, especially
those living in the rural areas, than there is to provide them with other necessities in life. We cannot
say that such classification is unreasonable.

We have carefully read the various arguments raised against the constitutional validity of R.A. No.
7716. We have in fact taken the extraordinary step of enjoining its enforcement pending resolution of
these cases. We have now come to the conclusion that the law suffers from none of the infirmities
attributed to it by petitioners and that its enactment by the other branches of the government does
not constitute a grave abuse of discretion. Any question as to its necessity, desirability or expediency
must be addressed to Congress as the body which is electorally responsible, remembering that, as
Justice Holmes has said, "legislators are the ultimate guardians of the liberties and welfare of the
people in quite as great a degree as are the courts." (Missouri, Kansas & Texas Ry. Co. v. May, 194
U.S. 267, 270, 48 L. Ed. 971, 973 (1904)). It is not right, as petitioner in G.R. No. 115543 does in
arguing that we should enforce the public accountability of legislators, that those who took part in
passing the law in question by voting for it in Congress should later thrust to the courts the burden of
reviewing measures in the flush of enactment. This Court does not sit as a third branch of the
legislature, much less exercise a veto power over legislation.

WHEREFORE, the motions for reconsideration are denied with finality and the temporary restraining
order previously issued is hereby lifted.

SO ORDERED.