LadLad vs Comelec 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, 2009 (the First Assailed Resolution) and December 16, 2009 (the Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed Resolutions). The case has its roots in the COMELECs 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] [3] [2]

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 Petition 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. members and organizational supporters, and outlined its platform of governance.
[6] [5]

Ang Ladlad laid out its national membership base consisting of individual

[7]

On November 11, 2009, after admitting the petitioners 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 persons 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 Petitions 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 States avowed duty under Section 13, Article II [8] of the Constitution to protect our youth from moral and spiritual degradation. When Ang Ladlad sought reconsideration, 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 Ladlads 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
[9]

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 Ladlads 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 nations only that their interests have not been brought to the attention of the nation because of their under representation. Until the time comes whenLadlad 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 societys understanding, tolerance, and acceptance of LGBTs is elevated, there can be no denying that Ladladconstituencies 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 groups 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 Petitions 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 thePhilippines were estimated as 670,000. Moreoever, Article 694 of the Civil Code defines nuisance as any act, omission x x x or [10] anything else x x x which shocks, defies or disregards decency or morality x x x. These are all unlawful. On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and direct the COMELEC to grant Ang Ladlads 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 [11] than 12:00 noon of January 11, 2010. Instead of filing a Comment, however, the OSG filed a Motion for Extension, requesting that it be given until January [12] [13] 16, 2010 to Comment. Somewhat surprisingly, the OSG later filed a Comment in support of petitioners application. Thus, in order to give COMELEC [14] the opportunity to fully ventilate its position, we required it to file its own comment. The COMELEC, through its Law Department, filed its Comment [15] on February 2, 2010. In the meantime, due to the urgency of the petition, we issued a temporary restraining order on January 12, 2010, effective immediately and [16] continuing until further orders from this Court, directing the COMELEC to cease and desist from implementing the Assailed Resolutions. Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to Appear as Amicus Curiae, attaching thereto [17] its Comment-in-Intervention. The CHR opined that the denial of Ang Ladlads 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 CHRs motion to intervene. [18] [19] On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene which motion was granted onFebruary 2, 2010. The Parties Argumets 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 Ladlads petition and argued that the COMELEC erred in denying petitioners application for registration since there was no basis for COMELECs 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 petitioners 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 timethat 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 COMELECs field personnel. Our Ruling We grant the petition. Compliance with the Requirements of the Constitution and Republic Act No. 7941

The COMELEC denied Ang Ladlads 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. [20] Commission on Elections, 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 [21] places in the country, petitioner does not exist in almost all provinces in the country. 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 petitioners accreditation mentioned or even alluded to in the Assailed Resolutions. This, in itself, is quite curious, considering that the reports of petitioners 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 respondents theory, and a serious violation of petitioners right to procedural due process. Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlads 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 [22] persons; that it had 16,100 affiliates and members around the country, and 4,044 members in its electronic discussion group. 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) Cant 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 Mens Support Group (GMSG) Metro Manila Gay United for Peace and Solidarity (GUPS) Lanao del Norte Iloilo City Gay Association Iloilo City Kabulig Writers 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 Womens Bisexual Network Metro Manila [23] Zamboanga Gay Association Zamboanga City

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 COMELECs findings are to be believed, petitioner does not even exist in Quezon City, which is registered as Ang Ladlads 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 COMELECs 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 Ladlads morality, or lack thereof. Religion as the Basis for Refusal to Accept Ang Ladlads 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 [24] thereof. At bottom, what our non-establishment clause calls for is government neutrality in religious matters. Clearly, governmental reliance on religious [25] justification is inconsistent with this policy of neutrality. 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 [26] ways that have primarily secular effects. As we held in Estrada v. Escritor: 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 nonbelievers 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. 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 [27] state interests. Public Morals as a Ground to Deny Ang Ladlads 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: Petitioners 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 [28] society. Any society without a set of moral precepts is in danger of losing its own existence. 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 [29] law. 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 groups 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. 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 petitioners 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 COMELECs 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 [32] remedies for which are a prosecution under the Revised Penal Code or any local ordinance, a civil action, or abatement without judicial proceedings. 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 Ladlads 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. Respondents 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.
[31]

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 [33] persons. 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 [34] other persons or other classes in the same place and in like circumstances. Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the classification as [35] long as it bears a rational relationship to some legitimate government end. In Central Bank Employees Association, Inc. v. Banko Sentral ng [36] Pilipinas, 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 [37] Constitution. 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 COMELECs 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 underrepresented sectors. It bears stressing that our finding that COMELECs 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 [38] with the OSGs position that homosexuals are a class in themselves for the purposes of the equal protection clause. 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. held in Estrada v. Escritor:
[39]

It is in the public square that deeply held convictions and differing opinions should be distilled and deliberated upon. As we

[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 ones 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 [41] morality does not justify criminalizing same-sex conduct. European and United Nations judicial decisions have ruled in favor of gay rights claimants on [42] both privacy and equality grounds, citing general privacy and equal protection provisions in foreign and international texts. 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 Courts 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 [43] something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. 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 [44] of the right of association, even if such ideas may seem shocking or unacceptable to the authorities or the majority of the population. 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. Only if a political party incites violence or puts forward policies that are incompatible with democracy does it fall outside the protection of the [46] freedom of association guarantee. 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 Ladlads 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 x 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 COMELECs 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 petitioners 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 [48] Human Rights Committee has opined that the reference to sex in Article 26 should be construed to include sexual orientation. Additionally, a variety of [49] United Nations bodies have declared discrimination on the basis of sexual orientation to be prohibited under various international agreements. 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.
[47]

[45]

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 [50] provisions which exclude any group or category of persons from elective office. We stress, however, that although this Court stands willing to assume the responsibility of giving effect to thePhilippines international law obligations, the blanket invocation of international law is not the panacea for all social ills. We refer now to the petitioners invocation of the Yogyakarta [51] Principles (the Application of International Human Rights Law In Relation to Sexual Orientation and Gender Identity), 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 thePhilippines. 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 [52] sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice. 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. 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 [53] rights, most of which amount to no more than well-meaning desires, without the support of either State practice or opinio juris. 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 Courts 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 datedNovember 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission on Elections is directed to GRANT petitioners application for party-list accreditation. SO ORDERED. VETERANS FEDERATION PARTY, vs comelec [G.R. No. 136786. October 6, 2000] AKBAYANvs Comelec[G.R. No. 136795. October 6, 2000] ALAGAD vs comelec To determine the winners in a Philippine-style party-list election, the Constitution and Republic Act (RA) No. 7941 mandate at least four inviolable parameters. 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 partylist 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. Because the Comelec violated these legal parameters, the assailed Resolutions must be struck down for having been issued in grave abuse of discretion. The poll body is mandated to enforce and administer election-related laws. It has no power to contravene or amend them. Neither does it have authority to decide the wisdom, propriety or rationality of the acts of Congress. Its bounden duty is to craft rules, regulations, methods and formulas to implement election laws -- not to reject, ignore, defeat, obstruct or circumvent them.

In fine, the constitutional introduction of the party-list system - a normal feature of parliamentary democracies - into our presidential form of government, modified by unique Filipino statutory parameters, presents new paradigms and novel questions, which demand innovative legal solutions convertible into mathematical formulations which are, in turn, anchored on time-tested jurisprudence. The Case Before the Court are three consolidated Petitions for Certiorari (with applications for the issuance of a temporary restraining order or writ [1] of preliminary injunction) under Rule 65 of the Rules of Court, assailing (1) the October 15, 1998 Resolution of the Commission on Elections [2] [3] (Comelec), Second Division, in Election Matter 98-065; and (2) the January 7, 1999 Resolution of the Comelec en banc, affirming the said disposition. The assailed Resolutions ordered the proclamation of thirty-eight (38) additional party-list representatives "to complete the full complement of 52 seats in the House of Representatives as provided under Section 5, Article VI of the 1987 Constitution and R.A. 7941. The Facts and the Antecedents Our 1987 Constitution introduced a novel feature into our presidential system of government -- the party-list method of representation. Under this system, any national, regional or sectoral party or organization registered with the Commission on Elections may participate in the election of party-list representatives who, upon their election and proclamation, shall sit in the House of Representatives as [4] regular members. In effect, a voter is given two (2) votes for the House -- one for a district congressman and another for a party-list [5] representative. Specifically, this system of representation is mandated by Section 5, Article VI of the Constitution, which provides: Sec. 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 by 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 partylist. 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. Complying with its constitutional duty to provide by law the selection or election of party-list representatives, Congress enacted RA 7941 on March 3, 1995. Under this statutes policy declaration, 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 provide the simplest scheme possible. (italics ours.) The requirements for entitlement to a party-list seat in the House are prescribed by this law (RA 7941) in this wise: Sec. 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. For purposes of the May 1998 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. In determining the allocation of seats for the second vote, 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. Pursuant to Section 18 of RA 7941, the Comelec en banc promulgated Resolution No. 2847, prescribing the rules and regulations governing the election of party-list representatives through the party-list system. Election of the Fourteen Party-List Representatives On May 11, 1998, the first election for party-list representation was held simultaneously with the national elections. A total of one hundred twenty-three (123) parties, organizations and coalitions participated. On June 26, 1998, the Comelec en banc proclaimed thirteen (13) party-list representatives from twelve (12) parties and organizations, which had obtained at least two percent of the total number of votes cast for the party-list system. Two of the proclaimed representatives belonged to Petitioner APEC, which obtained 5.5 percent of the [6] votes. The proclaimed winners and the votes cast in their favor were as follows: Party/Organization/ Number of Percentage of Nominees Coalition Votes Obtained Total Votes

1. APEC 503,487 5.5% Rene M. Silos Melvyn D. Eballe 2. ABA 321,646 3.51% Leonardo Q. Montemayor 3. ALAGAD 312,500 3.41% Diogenes S. Osabel 4. VETERANS 304,802 3.33% Eduardo P. Pilapil FEDERATION 5. PROMDI 255,184 2.79% Joy A.G. Young 6. AKO 239,042 2.61% Ariel A. Zartiga 7. NCSCFO 238,303 2.60% Gorgonio P. Unde 8. ABANSE! PINAY 235,548 2.57% Patricia M. Sarenas 9. AKBAYAN 232,376 2.54% Loreta Ann P. Rosales 10. BUTIL 215,643 2.36% Benjamin A. Cruz 11. SANLAKAS 194,617 2.13% Renato B. Magtubo 12. COOP-NATCCO 189,802 2.07% Cresente C. Paez After passing upon the results of the special elections held on July 4, 18, and 25, 1998, the Comelec en banc further determined that COCOFED (Philippine Coconut Planters Federation, Inc.) was entitled to one party -list seat for having garnered 186,388 votes, which were equivalent to 2.04 percent of the total votes cast for the party-list system. Thus, its first nominee, Emerito S. Calderon, was proclaimed on [7] September 8, 1998 as the 14th party-list representative. On July 6, 1998, PAG-ASA (Peoples Progressive Alliance for Peace and Good Government Towards Alleviation of Poverty and Social Advancement) filed with the Comelec a "Petition to Proclaim [the] Full Number of Party-List Representatives provided by the Constitution." It alleged that the filling up of the twenty percent membership of party-list representatives in the House of Representatives, as provided under the Constitution, was mandatory. It further claimed that the literal application of the two percent vote requirement and the three-seat limit under RA 7941 would defeat this constitutional provision, for only 25 nominees would be declared winners, short of the 52 party-list representatives who should actually sit in the House. Thereafter, nine other party-list organizations filed their respective Motions for Intervention, seeking the same relief as that sought by PAG-ASA on substantially the same grounds. Likewise, PAG-ASAs Petition was joined by other party-list organizations in a Manifestation they filed on August 28, 1998. These organizations were COCOFED, Senior Citizens, AKAP, AKSYON, PINATUBO, NUPA, PRP, AMIN, PCCI, AMMA-KATIPUNAN, OCW-UNIFIL, KAMPIL, MAHARLIKA, AFW, Women Power, Inc., Ang Lakas OCW, FEJODAP, CUP, Veterans Care, Bantay Bayan, 4L, AWATU, PMP, ATUCP, ALU and BIGAS. On October 15, 1998, the Comelec Second Division promulgated the present assailed Resolution granting PAG-ASA's Petition. It also ordered the proclamation of herein 38 respondents who, in addition to the 14 already sitting, would thus total 52 party-list representatives. It [9] held that "at all times, the total number of congressional seats must be filled up by eighty (80%) percent district representatives and twenty (20%) percent party-list representatives." In allocating the 52 seats, it disregarded the two percent-vote requirement prescribed under Section 11 (b) of RA 7941. Instead, it identified three "elements of the party-list system," which should supposedly determine "how the 52 seats should be filled up." First, "the system was conceived to enable the marginalized sectors of the Philippine society to be represented in the House of Representatives." Second, "the system should represent the broadest sectors of the Philippine society." Third, "it should encourage [the] multi-party system. (Boldface in the original.) Considering these elements, but ignoring the two percent threshold requirement of RA 7941, it concluded that "the party-list groups ranked Nos. 1 to 51 x x x should have at least one representative. It thus disposed as follows: "WHEREFORE, by virtue of the powers vested in it by the Constitution, the Omnibus Election Code (B.P. 881), Republic Act No. 7941 and other election laws, the Commission (Second Division) hereby resolves to GRANT the instant petition and motions for intervention, to include those similarly situated. ACCORDINGLY, the nominees from the party-list hereinbelow enumerated based on the list of names submitted by their respective parties, organizations and coalitions are PROCLAIMED as party-list representatives, to wit: 1. SENIOR CITIZENS 2. AKAP 3. AKSYON 4. PINATUBO 5. NUPA 6. PRP 7. AMIN 8. PAG-ASA 9. MAHARLIKA 10. OCW-UNIFIL 11. FCL 12. AMMA-KATIPUNAN 14. BANTAY BAYAN 15. AFW 16. ANG LAKAS OCW 17. WOMENPOWER, INC. 18. FEJODAP 19. CUP 20. VETERANS CARE 21. 4L 22. AWATU 23. PMP 24. ATUCP 25. NCWP 27. BIGAS 28. COPRA 29. GREEN 30. ANAKBAYAN 31. ARBA 32. MINFA 33. AYOS 34. ALL COOP 35. PDP-LABAN 36. KATIPUNAN 37. ONEWAY PRINT 38. AABANTE KA PILIPINAS
[8]

13. KAMPIL 26. ALU to complete the full complement of 52 seats in the House of Representatives as provided in Section 5, Article VI of the 1987 Constitution and R.A. 7941.

The foregoing disposition sums up a glaring bit of inconsistency and flip-flopping. In its Resolution No. 2847 dated June 25, 1996, the Comelec en banc had unanimously promulgated a set of Rules and Regulations Governing the Election of x x x Party -List Representatives Through the Party-List System. Under these Rules and Regulations, one additional seat shall be giv en for every two percent of the vote, a formula the Comelec illustrated in its Annex A. It apparently relied on this method when it proclaimed the 14 incumbent par ty-list solons (two for APEC and one each for the 12 other qualified parties). However, for inexplicable reasons, it abandoned said unanimous Resolution and [10] proclaimed, based on its three elements, the Group of 38 private respondents. The twelve (12) parties and organizations, which had earlier been proclaimed winners on the basis of having obtained at least two percent of the votes cast for the party-list system, objected to the proclamation of the 38 parties and filed separate Motions for Reconsideration. They contended that (1) under Section 11 (b) of RA 7941, only parties, organizations or coalitions garnering at least two percent of the votes for the party-list system were entitled to seats in the House of Representatives; and (2) additional seats, not exceeding two for each, should be allocated to those which had garnered the two percent threshold in proportion to the number of votes cast for the winning parties, as provided by said Section 11.

Ruling of the Comelec En Banc

Noting that all the parties -- movants and oppositors alike - had agreed that the twenty percent membership of party-list representatives in the House "should be filled up, the Comelec en banc resolved only the issue concerning the apportionment or allocation of the remaining seats. In other words, the issue was: Should the remaining 38 unfilled seats allocated to party-list solons be given (1) to the thirteen qualified parties that had each garnered at least two percent of the total votes, or (2) to the Group of 38 - herein private respondents - even if they had not passed the two percent threshold? The poll body held that to allocate the remaining seats only to those who had hurdled the two percent vote requirement "will mean the concentration of representation of party, sectoral or group interests in the House of Representatives to thirteen organizations representing two political parties, three coalitions and four sectors: urban poor, veterans, women and peasantry x x x. Such strict application of the 2% 'threshold' does not serve the essence and object of the Constitution and the legislature -- to 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 x x x. Additionally, it "will also prevent this Commission from complying with the constitutional and statutory decrees for part y-list representatives to compose 20% of the House of Representatives. Thus, in its Resolution dated January 7, 1999, the Comelec en banc, by a razor-thin majority -- with three commissioners [11] [12] concurring and two members dissenting -- affirmed the Resolution of its Second Division. It, however, held in abeyance the proclamation st of the 51 party (AABANTE KA PILIPINAS), "pending the resolution of petitions for correction of manifest error s. Without expressly declaring as unconstitutional or void the two percent vote requirement imposed by RA 7941, the Commission blithely rejected and circumvented its application, holding that there were more important considerations than this statutory threshold. Consequently, several petitions for certiorari, prohibition and mandamus, with prayers for the issuance of temporary restraining orders or writs of preliminary injunction, were filed before this Court by the parties and organizations that had obtained at least two per cent of the [13] total votes cast for the party-list system. In the suits, made respondents together with the Comelec were the 38 parties, organizations and coalitions that had been declared by the poll body as likewise entitled to party-list seats in the House of Representatives. Collectively, petitioners sought the proclamation of additional representatives from each of their parties and organizations, all of which had obtained at least two percent of the total votes cast for the party-list system. On January 12, 1999, this Court issued a Status Quo Order directing the Comelec to CEASE and DESIST from constituting itself as a National Board of Canvassers on 13 January 1999 or on any other date and proclaiming as winners the nominees of the parties, organizations and coalitions enumerated in the dispositive portions of its 15 October 1998 Resolution or its 7 January 1999 Resolution, until further orders from this Court. On July 1, 1999, oral arguments were heard from the parties. Atty. Jeremias U. Montemayor appeared for petitioners in GR No. 136781; Atty. Gregorio A. Andolana, for petitioners in GR No. 136786; Atty. Rodante D. Marcoleta for petitioners in GR No. 136795; Attys. Ricardo Blancaflor and Pete Quirino Quadra, for all the private respondents; Atty. Porfirio V. Sison for Intervenor NACUSIP; and Atty. Jose P. Balbuena for Respondent Comelec. Upon invitation of the Court, retired Comelec Commissioner Regalado E. Maambong acted as amicus curiae. Solicitor General Ricardo P. Galvez appeared, not for any party but also as a friend of the Court. Thereafter, the parties and the amici curiae were required to submit their respective Memoranda in amplification of their verbal [14] arguments. The Issues The Court believes, and so holds, that the main question of how to determine the winners of the subject party-list election can be fully settled by addressing the following issues: 1. Is the twenty percent allocation for party-list representatives mentioned in Section 5 (2), Article VI of the Constitution, mandatory or is it merely a ceiling? In other words, should the twenty percent allocation for party-list solons be filled up completely and all the time? 2. Are the two percent threshold requirement and the three-seat limit provided in Section 11 (b) of RA 7941 constitutional? 3. If the answer to Issue 2 is in the affirmative, how should the additional seats of a qualified party be determined? The Courts Ruling The Petitions are partly meritorious. The Court agrees with petitioners that the assailed Resolutions should be nullified, but disagrees that they should all be granted additional seats.

First Issue: Whether the Twenty Percent Constitutional Allocation Is Mandatory

[15]

The pertinent provision

of the Constitution on the composition of the House of Representatives reads as follows:

Sec. 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 by 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 partylist. 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.

Determination of the Total Number of Party-List Lawmakers

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 ---------------------------------- x .20 = No. of party-list .80 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. To illustrate, considering that there were 208 district representatives to be elected during the 1998 national elections, the number of party-list seats would be 52, computed as follows: 208 -------- x .20 = 52 .80 The foregoing computation of seat allocation is easy enough to comprehend. The problematic question, however, is this: Does the Constitution require all such allocated seats to be filled up all the time and under all circumstances? Our short answer is No.
[16]

Twenty Percent Allocation a Mere Ceiling

The Constitution simply states that "[t]he party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. According to petitioners, this percentage is a ceiling; the mechanics by which it is to be filled up has been left to Congress. In the exercise of its prerogative, the legislature enacted RA 7941, by which it prescribed that a party, organization or coalition participating in the party-list election must obtain at least two percent of the total votes cast for the system in order to qualify for a seat in the House of Representatives. Petitioners further argue that the constitutional provision must be construed together with this legislative requirement. If there is no sufficient number of participating parties, organizations or coalitions which could hurdle the two percent vote threshold and thereby fill up the twenty percent party-list allocation in the House, then naturally such allocation cannot be filled up completely. The Comelec cannot be faulted for the "incompleteness," for ultimately the voters themselves are the ones who, in the exercise of their right of suffrage, determine who and how many should represent them. On the other hand, Public Respondent Comelec, together with the respondent parties, avers that the twenty percent allocation for partylist lawmakers is mandatory, and that the two percent vote requirement in RA 7941 is unconstitutional, because its strict application would make it mathematically impossible to fill up the House party-list complement. We rule that a simple reading of Section 5, Article VI of the Constitution, easily conveys the equally simple message that Congress was vested with the broad power to define and prescribe the mechanics of the party-list system of representation. The Constitution explicitly sets down only the percentage of the total membership in the House of Representatives reserved for party-list representatives. In the exercise of its constitutional prerogative, Congress enacted RA 7941. As said earlier, Congress declared therein a policy to promote "proportional representation" in the election of party-list representatives in order to enable Filipinos belonging to the marginalized and underrepresented sectors to contribute legislation that would benefit them. It however deemed it necessary to require parties, organizations and coalitions participating in the system to obtain at least two percent of the total votes cast for the party-list system in order to be entitled to a party-list seat. Those garnering more than this percentage could have "additional seats in proportion to their total number of votes. Furthermore, no winning party, organization or coalition can have more than three seats in the House of Representativ es. Thus the relevant portion of Section 11(b) of the law provides:

(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. Considering the foregoing statutory requirements, it will be shown presently that Section 5 (2), Article VI of the Constitution is not mandatory. It merely provides a ceiling for party-list seats in Congress. On the contention that a strict application of the two percent threshold may result in a mathematical impossibility, suffic e it to say that [17] the prerogative to determine whether to adjust or change this percentage requirement rests in Congress. Our task now, as should have been the Comelecs, is not to find fault in the wisdom of the l aw through highly unlikely scenarios of clinical extremes, but to craft an innovative mathematical formula that can, as far as practicable, implement it within the context of the actual election process. Indeed, the function of the Supreme Court, as well as of all judicial and quasi-judicial agencies, is to apply the law as we find it, not to reinvent or second-guess it. Unless declared unconstitutional, ineffective, insufficient or otherwise void by the proper tribunal, a statute remains a valid command of sovereignty that must be respected and obeyed at all times. This is the essence of the rule of law.

Second Issue: The Statutory Requirement and Limitation

The Two Percent Threshold

In imposing a two percent threshold, Congress wanted to ensure that only those parties, organizations and coalitions having a sufficient number of constituents deserving of representation are actually represented in Congress. This intent can be gleaned from the deliberations on the proposed bill. We quote below a pertinent portion of the Senate discussion: SENATOR GONZALES: For purposes of continuity, I would want to follow up a point that was raised by, I think, Senator Osmea when he said that a political party must have obtained at least a minimum percentage to be provided in this law in order to qualify for a seat under the party-list system. They do that in many other countries. A party must obtain at least 2 percent of the votes cast, 5 percent or 10 percent of the votes cast. Otherwise, as I have said, 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 [18] name of the party-list system, Mr. President." A similar intent is clear from the statements of the bill sponsor in the House of Representatives, as the following shows: MR. ESPINOSA. There is a mathematical formula which this computation is based at, arriving at a five percent ratio which would distribute equitably the number of seats among the different sectors. There is a mathematical formula which is, I think, patterned after that of the party [19] list of the other parliaments or congresses, more particularly the Bundestag of Germany. Moreover, even the framers of our Constitution had in mind a minimum-vote requirement, the specification of which they left to Congress to properly determine. Constitutional Commissioner Christian S. Monsod explained: MR. MONSOD. x x x We are amenable to modifications in the minimum percentage of votes. Our proposal is that anybody who has twoand-a-half percent of the votes gets a seat. There are about 20 million who cast their votes in the last elections. Two-and-a-half percent would mean 500,000 votes.Anybody who has a constituency of 500,000 votes nationwide deserves a seat in the Assembly. If we bring that down to two percent, we are talking about 400,000 votes. The average vote per family is three. So, here we are talking about 134,000 families. We believe that there are many sectors who will be able to get seats in the Assembly because many of them have memberships of over 10,000. In effect, that is the operational implication of our proposal. What we are trying to avoid is this selection of sectors, the reserve seat system. We believe that it is our job to open up the system and that we should not have within that system a reserve seat. We think that [20] people should organize, should work hard, and should earn their seats within that system. The two percent threshold is consistent not only with the intent of the framers of the Constitution and the law, but with the very essence of "representation." Under a republican or representative state, all government authority emanates from the people, but is exercised by [21] representatives chosen by them. But to have meaningful representation, the elected persons must have the mandate of a sufficient number of people. Otherwise, in a legislature that features the party-list system, the result might be the proliferation of small groups which are incapable of contributing significant legislation, and which might even pose a threat to the stability of Congress. Thus, even legislative [22] districts are apportioned according to "the number of their respective inhabitants, and on the basis of a uniform and progressive ratio" to ensure meaningful local representation. All in all, we hold that the statutory provision on this two percent requirement is precise and crystalline. When the law is clear, the [23] function of courts is simple application, not interpretation or circumvention.

The Three-Seat-Per-Party Limit

An important consideration in adopting the party-list system is to promote and encourage a multiparty system of representation.Again, we quote Commissioner Monsod: 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. But we also wanted to avoid the problems of mechanics and operation in the implementation of a concept that has very serious shortcomings of classification and of double or triple votes. 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. This way, we will open it up and enable [24] sectoral groups, or maybe regional groups, to earn their seats among the fifty. x x x. Consistent with the Constitutional Commission's pronouncements, Congress set the seat-limit to three (3) for each qualified party, organization or coalition. "Qualified" means having hurdled the two percent vote threshold. Such three-seat limit ensures the entry of various interest-representations into the legislature; thus, no single group, no matter how large its membership, would dominate the party-list seats, if not the entire House. We shall not belabor this point, because the validity of the three-seat limit is not seriously challenged in these consolidated cases.

Third Issue: Method of Allocating Additional Seats

Having determined that the twenty percent seat allocation is merely a ceiling, and having upheld the constitutionality of the two percent vote threshold and the three-seat limit imposed under RA 7941, we now proceed to the method of determining how many party-list seats the qualified parties, organizations and coalitions are entitled to. The very first step - there is no dispute on this - is to rank all the participating parties, organizations and coalitions (hereafter collectively referred to as "parties") according to the votes they each obtained. The percentage of their respective votes as against the total number of votes cast for the party-list system is then determined.All those that garnered at least two percent of the total votes cast have an assured or guaranteed seat in the House of Representatives.Thereafter, "those garnering more than two percent of the votes shall be entitled to additional seats in proportion to their total number of votes." The problem is how to distribute additional seats "proportionally," bearing in mind the three-seat limit further imposed by the law.

One Additional Seat Per Two Percent Increment

One proposed formula is to allocate one additional seat for every additional proportion of the votes obtained equivalent to the two [25] percent vote requirement for the first seat. Translated in figures, a party that wins at least six percent of the total votes cast will be entitled to three seats; another party that gets four percent will be entitled to two seats; and one that gets two percent will be entitled to one seat only. This proposal has the advantage of simplicity and ease of comprehension. Problems arise, however, when the parties get very lopsided votes -- for example, when Party A receives 20 percent of the total votes cast; Party B, 10 percent; and Party C, 6 percent. Under the method just described, Party A would be entitled to 10 seats; Party B, to 5 seats and Party C, to 3 seats.Considering the three-seat limit imposed by law, all the parties will each uniformly have three seats only. We would then have the spectacle of a party garnering two or more times the number of votes obtained by another, yet getting the same number of seats as the other one with the much lesser votes. In effect, proportional representation will be contravened and the law rendered nugatory by this suggested solution. Hence, the Court discarded it.

The Niemeyer Formula

Another suggestion that the Court considered was the Niemeyer formula, which was developed by a German mathematician and adopted by Germany as its method of distributing party-list seats in the Bundestag. Under this formula, the number of additional seats to which a qualified party would be entitled is determined by multiplying the remaining number of seats to be allocated by the total number of votes obtained by that party and dividing the product by the total number of votes garnered by all the qualified parties. The integer portion of the resulting product will be the number of additional seats that the party concerned is entitled to. Thus: No. of remaining seats to be allocated No. of additional --------------------------- x No. of votes of = seats of party Total no. of votes of party concerned concerned qualified parties (Integer.decimal) The next step is to distribute the extra seats left among the qualified parties in the descending order of the decimal portions of the resulting products. Based on the 1998 election results, the distribution of party-list seats under the Niemeyer method would be as follows: Party Number of Guaranteed Additional Extra Total Votes Seats Seats Seats 1. APEC 503,487 1 5.73 1 7 2. ABA 321,646 1 3.66 1 5 3. ALAGAD 312,500 1 3.55 4 4. VETERANS 304,802 1 3.47 4 FEDERATION 5. PROMDI 255,184 1 2.90 1 4

6. AKO 239,042 1 2.72 1 4 7. NCSCFO 238,303 1 2.71 1 4 8. ABANSE! PINAY 235,548 1 2.68 1 4 9. AKBAYAN 232,376 1 2.64 1 4 10. BUTIL 215,643 1 2.45 3 11. SANLAKAS 194,617 1 2.21 3 12. COOP-NATCCO 189,802 1 2.16 3 13. COCOFED 186,388 1 2.12 3 Total 3,429,338 13 32 7 52 However, since Section 11 of RA 7941 sets a limit of three (3) seats for each party, those obtaining more than the limit will have to give up their excess seats. Under our present set of facts, the thirteen qualified parties will each be entitled to three seats, resulting in an overall total of 39. Note that like the previous proposal, the Niemeyer formula would violate the principle of "proportional representation," a basic tenet of our party-list system. The Niemeyer formula, while no doubt suitable for Germany, finds no application in the Philippine setting, because of our three-seat limit and the non-mandatory character of the twenty percent allocation. True, both our Congress and the Bundestag have threshold requirements -- two percent for us and five for them. There are marked differences between the two models, however. As ably pointed out by [26] private respondents, one half of the German Parliament is filled up by party-list members. More important, there are no seat limitations, because German law discourages the proliferation of small parties. In contrast, RA 7941, as already mentioned, imposes a three-seat limit to encourage the promotion of the multiparty system. This major statutory difference makes the Niemeyer formula completely inapplicable to the Philippines. Just as one cannot grow Washington apples in the Philippines or Guimaras mangoes in the Arctic because of fundamental environmental differences, neither can the Niemeyer formula be transplanted in toto here because of essential variances between the two party-list models.

The Legal and Logical Formula for the Philippines

It is now obvious that the Philippine style party-list system is a unique paradigm which demands an equally unique formula. In crafting a legally defensible and logical solution to determine the number of additional seats that a qualified party is entitled to, we need to review the parameters of the Filipino party-list system. As earlier mentioned in the Prologue, they are as follows: 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 partylist 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. The problem, as already stated, is to find a way to translate proportional representation into a mathematical formula that will not contravene, circumvent or amend the above-mentioned parameters. After careful deliberation, we now explain such formula, step by step. Step One. There is no dispute among the petitioners, the public and the private respondents, as well as the members of this Court, that the initial step is to rank all the participating parties, organizations and coalitions from the highest to the lowest based on the number of votes they each received. Then the ratio for each party is computed by dividing its votes by the total votes cast for all the parties participating in the system. All parties with at least two percent of the total votes are guaranteed one seat each. Only these parties shall be considered in the computation of additional seats. The party receiving the highest number of votes shall thenceforth be referred to as the first party. Step Two. The next step is to determine the number of seats the first party is entitled to, in order to be able to compute that for the other parties. Since the distribution is based on proportional representation, the number of seats to be allotted to the other parties cannot possibly exceed that to which the first party is entitled by virtue of its obtaining the most number of votes. For example, the first party received 1,000,000 votes and is determined to be entitled to two additional seats. Another qualified party which received 500,000 votes cannot be entitled to the same number of seats, since it garnered only fifty percent of the votes won by the first party. Depending on the proportion of its votes relative to that of the first party whose number of seats has already been predetermined, the second party should be given less than that to which the first one is entitled. The other qualified parties will always be allotted less additional seats than the first party for two reasons: (1) the ratio between said parties and the first party will always be less than 1:1, and (2) the formula does not admit of mathematical rounding off, because there is no such thing as a fraction of a seat. Verily, an arbitrary rounding off could result in a violation of the twenty percent allocation. An academic mathematical demonstration of such incipient violation is not necessary because the present set of facts, given the number of qualified parties and the voting percentages obtained, will definitely not end up in such constitutional contravention.

The Court has previously ruled in Guingona Jr. v. Gonzales that a fractional membership cannot be converted into a whole membership of one when it would, in effect, deprive another party's fractional membership. It would be a violation of the constitutional mandate of proportional representation. We said further that "no party can claim more than what it is entitled to x x x. In any case, the decision on whether to round off the fractions is better left to the legislature. Since Congress did not provide for it in the present law, neither will this Court. The Supreme Court does not make the law; it merely applies it to a given set of facts.

[27]

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 Proportion of votes of -------------------- = first party relative to Total votes for total votes for party-list system 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. Applying the above formula, APEC, which received 5.5% of the total votes cast, is entitled to one additional seat or a total of two seats. 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: No. of votes of concerned party -----------------Total no. of votes Additional seats for party-list system No. of additional for concerned = ----------------------- x seats allocated to party No. of votes of the first party first party -----------------Total no. of votes for party list system In simplified form, it is written as follows: No. of votes of Additional seats concerned party No. of additional for concerned = ------------------ x seats allocated to party No. of votes of the first party first party Thus, in the case of ABA, the additional number of seats it would be entitled to is computed as follows: No. of votes of Additional seats ABA No. of additional for concerned = -------------------- x seats allocated to

party (ABA) No. of votes of the first party first party (APEC) Substituting actual values would result in the following equation: Additional seats 321,646 for concerned = ----------- x 1 = .64 or 0 additional seat, since party (ABA) 503,487 rounding off is not to be applied Applying the above formula, we find the outcome of the 1998 party-list election to be as follows: Organization Votes %age of Initial No. Additional Total Garnered Total Votes of Seats Seats 1. APEC 503,487 5.50% 1 1 2 2. ABA 321,646 3.51% 1 321,646 / 503,487 * 1 = 0.64 1 3. ALAGAD 312,500 3.41% 1 312,500 / 503,487 * 1 = 0.62 1 4. VETERANS 304,802 3.33% 1 304,802 / 503,487 * 1 = 0.61 1 FEDERATION 5. PROMDI 255,184 2.79% 1 255,184 / 503,487 * 1 = 0.51 1 6. AKO 239,042 2.61% 1 239,042 / 503,487 * 1 = 0.47 1 7. NCSFO 238,303 2.60% 1 238,303 / 503,487 * 1 = 0.47 1 8. ABANSE! 235,548 2.57% 1 321,646 / 503,487 * 1 = 0.47 1 PINAY 9. AKBAYAN! 232,376 2.54% 1 232,376 / 503,487 * 1 = 0.46 1 10. BUTIL 215,643 2.36% 1 215,643 / 503,487 * 1 = 0.43 1 11. SANLAKAS 194,617 2.13% 1 194,617 / 503,487 * 1 = 0.39 1 12. COOP- 189,802 2.07% 1 189,802 / 503,487 * 1 = 0.38 1 NATCCO 13. COCOFED 186,388 2.04% 1 186,388 / 503,487 * 1 = 0.37 1 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. The net result of the foregoing formula for determining additional seats happily coincides with the present number of incumbents; namely, two for the first party (APEC) and one each for the twelve other qualified parties. Hence, we affirm the legality of the incumbencies of their nominees, albeit through the use of a different formula and methodology. In his Dissent, Justice Mendoza criticizes our methodology for being too strict. We say, however, that our formula merely translated the Philippine legal parameters into a mathematical equation, no more no less. If Congress in its wisdom decides to modify RA 7941 to make it less strict, then the formula will also be modified to reflect the changes willed by the lawmakers.

Epilogue

In sum, we hold that the Comelec gravely abused its discretion in ruling that the thirty-eight (38) herein respondent parties, organizations and coalitions are each entitled to a party-list seat, because it glaringly violated two requirements of RA 7941: the two percent threshold and proportional representation. In disregarding, rejecting and circumventing these statutory provisions, the Comelec effectively arrogated unto itself what the Constitution expressly and wholly vested in the legislature: the power and the discretion to define the mechanics for the enforcement of the system. The wisdom and the propriety of these impositions, absent any clear transgression of the Constitution or grave abuse of discretion [28] amounting to lack or excess of jurisdiction, are beyond judicial review. Indeed, the Comelec and the other parties in these cases - both petitioners and respondents - have failed to demonstrate that our lawmakers gravely abused their discretion in prescribing such requirements. By grave abuse of discretion is meant such capricious or [29] whimsical exercise of judgment equivalent to lack or excess of jurisdiction. The Comelec, which is tasked merely to enforce and administer election-related laws, cannot simply disregard an act of Congress exercised within the bounds of its authority. As a mere implementing body, it cannot judge the wisdom, propriety or rationality of such act. Its recourse is to draft an amendment to the law and lobby for its approval and enactment by the legislature. Furthermore, a reading of the entire Constitution reveals no violation of any of its provisions by the strict enforcement of RA 7941. It is basic that to strike down a law or any of its provisions as unconstitutional, there must be a clear and unequivocal showing that what the [31] Constitution prohibits, the statute permits. Neither can we grant petitioners prayer that they each be given additional seats (for a total of three each), because granti ng such plea would plainly and simply violate the proportional representation mandated by Section 11 (b) of RA 7941.
[30]

The low turnout of the party-list votes during the 1998 elections should not be interpreted as a total failure of the law in fulfilling the object of this new system of representation. It should not be deemed a conclusive indication that the requirements imposed by RA 7941 wholly defeated the implementation of the system. Be it remembered that the party-list system, though already popular in parliamentary democracies, is still quite new in our presidential system. We should allow it some time to take root in the consciousness of our people and in the heart of our tripartite form of republicanism. Indeed, the Comelec and the defeated litigants should not despair. Quite the contrary, the dismal result of the first election for party-list representatives should serve as a challenge to our sectoral parties and organizations. It should stir them to be more active and vigilant in their campaign for representation in the State's lawmaking body. It should also serve as a clarion call for innovation and creativity in adopting this novel system of popular democracy. With adequate information dissemination to the public and more active sectoral parties, we are confident our people will be more responsive to future party-list elections. Armed with patience, perseverance and perspicacity, our marginalized sectors, in time, will fulfill the Filipino dream of full representation in Congress under the aegis of the party-list system, Philippine style. WHEREFORE, the Petitions are hereby partially GRANTED. The assailed Resolutions of the Comelec are SET ASIDE andNULLIFIED. The proclamations of the fourteen (14) sitting party-list representatives - two for APEC and one each for the remaining twelve (12) qualified parties - are AFFIRMED. No pronouncement as to costs. Consolidated Table DISTRIBUTION OF SEATS Group (1) Actual votes 1 received 503,487 321,646 312,500 304,902 255,184 239,042 338,303 235,548 232,376 215,643 194,617 189,802 186,388 143,444 5,582,427 9,155,309 (2) Percentage of votes cast for 2 party-list 5.50% 3.51% 3.41% 3.33% 2.79% 2.61% 2.60% 2.57% 2.54% 2.36% 2.13% 2.07% 2.04% 1.57% Each with less than 2% 100% (3) Guaranteed 3 seat 1 1 1 1 1 1 1 1 1 1 1 1 1 (4) Additional 4 seats 5.73 3.66 3.55 3.47 2.90 2.72 2.71 2.68 2.64 2.45 2.21 2.16 2.12 (5) Extra 5 seats 1 1 (6) 6 Total (7) Seats in excess of 3 4 2 1 1 1 1 1 1 1 (8) Total number of seats 7 allowed 3 3 3 3 3 3 3 3 3 3 3 3 3

1. APEC 2. ABA 3. ALAGAD 4. VETERANS FEDERATION 5. PROMDI 6. AKO 7. NCSFO 8. ABANSE! PINAY 9. AKBAYAN! 10 BUTIL 11. SANLAKAS 12. COOPNATCCO 13. COCOFED 14. SENIOR CITIZENS 15. Other Parties TOTAL

7 5 4 4 4 4 4 4 4 3 3 3 3

1 1 1 1 1

13

32

52

13

39

ANG BAGONG BAYANI-OFW LABOR PARTY x---------------------------------------------------------x G.R. No. 147613 June 26, 2001 BAYAN MUNA, petitioner, vs. COMMISSION ON ELECTIONS; PANGANIBAN, J.: 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. Thus, allowing all individuals and groups, including those which now dominate district elections, to have the same opportunity to participate in party-list elections would desecrate this lofty objective and mongrelize the social justice mechanism into an atrocious veneer for traditional politics. The Case Before us are two Petitions under Rule 65 of the Rules of Court, challenging Omnibus Resolution No. 3785 issued by the Commission on Elections (Comelec) on March 26, 2001. This Resolution approved the participation of 154 organizations and parties, including those herein
1

impleaded, in the 2001 party-list elections. Petitioners seek the disqualification of private respondents, arguing mainly that the party-list system was intended to benefit the marginalized and underrepresented; not the mainstream political parties, the non-marginalized or overrepresented. The Factual Antecedents With the onset of the 2001 elections, the Comelec received several Petitions for registration filed by sectoral parties, organizations and political parties. According to the Comelec, "[v]erifications were made as to the status and capacity of these parties and organizations and hearings were scheduled day and night until the last party w[as] heard. With the number of these petitions and the observance of the legal and procedural requirements, review of these petitions as well as deliberations takes a longer process in order to arrive at a decision and as a result the two (2) divisions promulgated a separate Omnibus Resolution and individual resolution on political parties. These numerous petitions and processes observed in the disposition of these petition[s] hinder the early release of the Omnibus Resolutions of the Divisions 2 which were promulgated only on 10 February 2001." Thereafter, before the February 12, 2001 deadline prescribed under Comelec Resolution No. 3426 dated December 22, 2000, the registered parties and organizations filed their respective Manifestations, stating their intention to participate in the party-list elections. Other sectoral and political parties and organizations whose registrations were denied also filed Motions for Reconsideration, together with Manifestations of their intent to participate in the party-list elections. Still other registered parties filed their Manifestations beyond the deadline. The Comelec gave due course or approved the Manifestations (or accreditations) of 154 parties and organizations, but denied those of several others in its assailed March 26, 2001 Omnibus Resolution No. 3785, which we quote: "We carefully deliberated the foregoing matters, having in mind that this system of proportional representation scheme will encourage multipartisan [sic] and enhance the inability of small, new or sectoral parties or organization to directly participate in this electoral window. "It will be noted that as defined, 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. "However, in the course of our review of the matters at bar, we must recognize the fact that there is a need to keep the number of sectoral parties, organizations and coalitions, down to a manageable level, keeping only those who substantially comply with the rules and regulations 3 and more importantly the sufficiency of the Manifestations or evidence on the Motions for Reconsiderations or Oppositions." On April 10, 2001, Akbayan Citizens Action Party filed before the Comelec a Petition praying that "the names of [some of herein respondents] be deleted from the 'Certified List of Political Parties/Sectoral Parties/Organizations/Coalitions Participating in the Party List System for the May 14, 2001 Elections' and that said certified list be accordingly amended." It also asked, as an alternative, that the votes cast for the said 4 respondents not be counted or canvassed, and that the latter's nominees not be proclaimed. On April 11, 2001, Bayan Muna and Bayan 5 Muna-Youth also filed a Petition for Cancellation of Registration and Nomination against some of herein respondents. On April 18, 2001, the Comelec required the respondents in the two disqualification cases to file Comments within three days from notice. It 6 7 also set the date for hearing on April 26, 2001, but subsequently reset it to May 3, 2001. During the hearing, however, Commissioner 8 Ralph C. Lantion merely directed the parties to submit their respective memoranda. Meanwhile, dissatisfied with the pace of the Comelec, Ang Bagong Bayani-OFW Labor Party filed a Petition before this Court on April 16, 2001. This Petition, docketed as GR No. 147589, assailed Comelec Omnibus Resolution No. 3785. In its Resolution dated April 17, 10 11 2001, the Court directed respondents to comment on the Petition within a non-extendible period of five days from notice. On April 17, 2001, Petitioner Bayan Muna also filed before this Court a Petition, docketed as GR No. 147613, also challenging Comelec 13 Omnibus Resolution No. 3785. In its Resolution dated May 9, 2001, the Court ordered the consolidation of the two Petitions before it; directed respondents named in the second Petition to file their respective Comments on or before noon of May 15, 2001; and called the parties to an Oral Argument on May 17, 2001. It added that the Comelec may proceed with the counting and canvassing of votes cast for the party-list elections, but barred the proclamation of any winner therein, until further orders of the Court. Thereafter, Comments on the second Petition were received by the Court and, on May 17, 2001, the Oral Argument was conducted as scheduled. In an Order given in open court, the parties were directed to submit their respective Memoranda simultaneously within a non15 extendible period of five days. Issues: During the hearing on May 17, 2001, the Court directed the parties to address the following issues: "1. Whether or not recourse under Rule 65 is proper under the premises. More specifically, is there no other plain, speedy or adequate remedy in the ordinary course of law? "2. Whether or not political parties may participate in the party-list elections. "3. Whether or not the party-list system is exclusive to 'marginalized and underrepresented' sectors and organizations.
14 12 9

"4. Whether or not the Comelec committed grave abuse of discretion in promulgating Omnibus Resolution No. 3785." The Court's Ruling

16

The Petitions are partly meritorious. These cases should be remanded to the Comelec which will determine, after summary evidentiary hearings, whether the 154 parties and organizations enumerated in the assailed Omnibus Resolution satisfy the requirements of the Constitution and RA 7941, as specified in this Decision. First Issue: Recourse Under Rule 65 Respondents contend that the recourse of both petitioners under Rule 65 is improper because there are other plain, speedy and adequate 17 remedies in the ordinary course of law. The Office of the Solicitor General argues that petitioners should have filed before the Comelec a petition either for disqualification or for cancellation of registration, pursuant to Sections 19, 20, 21 and 22 of Comelec Resolution No. 330718 19 A dated November 9, 2000. We disagree. At bottom, petitioners attack the validity of Comelec Omnibus Resolution 3785 for having been issued with grave abuse of 20 discretion, insofar as it allowed respondents to participate in the party-list elections of 2001. Indeed, under both the Constitution and the Rules of Court, such challenge may be brought before this Court in a verified petition for certiorari under Rule 65. Moreover, the assailed Omnibus Resolution was promulgated by Respondent Commission en banc; hence, no motion for reconsideration 21 was possible, it being a prohibited pleading under Section 1 (d), Rule 13 of the Comelec Rules of Procedure. The Court also notes that Petitioner Bayan Muna had filed before the Comelec a Petition for Cancellation of Registration and Nomination 22 against some of herein respondents. The Comelec, however, did not act on that Petition. In view of the pendency of the elections, Petitioner Bayan Muna sought succor from this Court, for there was no other adequate recourse at the time. Subsequent events have proven the urgency of petitioner's action; to this date, the Comelec has not yet formally resolved the Petition before it. But a resolution may just be a formality because the Comelec, through the Office of the Solicitor General, has made its position on the matter quite clear. In any event, this case presents an exception to the rule that certiorari shall lie only in the absence of any other plain, speedy and adequate 23 remedy. It has been held that certiorari is available, notwithstanding the presence of other remedies, "where the issue raised is one purely 24 of law, where public interest is involved, and in case of urgency." Indeed, the instant case is indubitably imbued with public interest and with extreme urgency, for it potentially involves the composition of 20 percent of the House of Representatives. Moreover, this case raises transcendental constitutional issues on the party-list system, which this Court must urgently resolve, consistent 25 with its duty to "formulate guiding and controlling constitutional principles, precepts, doctrines, or rules." Finally, procedural requirements "may be glossed over to prevent a miscarriage of justice, when the issue involves the principle of social justice x x x when the decision sought to be set aside is a nullity, or when the need for relief is extremely urgent and certiorari is the only 26 adequate and speedy remedy available." Second Issue: Participation of Political Parties In its Petition, Ang Bagong Bayani-OFW Labor Party contends that "the inclusion of political parties in the party-list system is the most 27 objectionable portion of the questioned Resolution." For its part, Petitioner Bayan Muna objects to the participation of "major political 28 parties." On the other hand, the Office of the Solicitor General, like the impleaded political parties, submits that the Constitution and RA No. 7941 allow political parties to participate in the party-list elections. It argues that the party-list system is, in fact, open to all "registered 29 national, regional and sectoral parties or organizations." We now rule on this issue. Under the Constitution and RA 7941, private respondents cannot be disqualified from the party-list elections, merely on the ground that they are political parties. Section 5, Article VI of the Constitution provides that members of the House of Representatives may "be elected through a party-list system of registered national, regional, and sectoral parties or organizations." Furthermore, under Sections 7 and 8, Article IX (C) of the Constitution, political parties may be registered under the party-list system. "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 30 appoint poll watchers in accordance with law."

During the deliberations in the Constitutional Commission, Comm. Christian S. Monsod pointed out that the participants in the party-list 31 32 system may "be a regional party, a sectoral party, a national party, UNIDO, Magsasaka, or a regional party in Mindanao." This was also 33 clear from the following exchange between Comms. Jaime Tadeo and Blas Ople: "MR. TADEO. Naniniwala ba kayo na ang party list ay pwedeng paghati-hatian ng UNIDO, PDP-Laban, PNP, Liberal at Nacionalista? MR. OPLE. Maaari yan sapagkat bukas ang party list system sa lahat ng mga partido." Indeed, Commissioner Monsod stated that the purpose of the party-list provision was to open up the system, in order to give a chance to 34 parties that consistently place third or fourth in congressional district elections to win a seat in Congress. He explained: "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 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." For its part, Section 2 of RA 7941 also provides for "a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, x x x." Section 3 expressly states that a "party" is "either a political party or a sectoral party or a coalition of parties." More to the point, the law defines "political party" as "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." Furthermore, Section 11 of RA 7941 leaves no doubt as to the participation of political parties in the party-list system. We quote the pertinent provision below: "x x x "For purposes of the May 1998 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" Indubitably, therefore, political parties even the major ones -- may participate in the party-list elections. Third Issue: Marginalized and Underrepresented 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. Section 5, Article VI of the Constitution, provides as follows: "(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 supplied.) Notwithstanding the sparse language of the provision, a distinguished member of the Constitutional Commission declared that the purpose of the party-list provision was to give "genuine power to our people" in Congress. Hence, when the provision was discussed, he exultantly announced: "On this first day of August 1986, we shall, hopefully, usher in a new chapter to our national history, by giving genuine power to 35 our people in the legislature." 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. Hence, RA 7941 was enacted. It laid out the statutory policy in this wise: "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 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 provide the simplest scheme possible."

The Marginalized and Underrepresented to Become Lawmakers Themselves The foregoing provision 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 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 36 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 37 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 38 associated or related. Thus, the meaning of a term in a statute may be limited, qualified or specialized by those in immediate association. The Party-List System Desecrated by the OSG Contentions Notwithstanding the unmistakable statutory policy, the Office of the Solicitor General submits that RA No. 7941 "does not limit the 39 participation in the party-list system to the marginalized and underrepresented sectors of society." In fact, it contends that any party or 40 group that is not disqualified under Section 6 of RA 7941 may participate in the elections. Hence, it admitted during the Oral Argument that 41 even an organization representing the super rich of Forbes Park or Dasmarias Village could participate in the party-list elections. The declared policy of RA 7941 contravenes the position of the Office of the Solicitor General (OSG). We stress that the party-list system seeks to enable certain Filipino citizens specifically those belonging to marginalized and underrepresented sectors, organizations and parties to be elected to the House of Representatives. The assertion of the OSG that the party-list system is not exclusive to the marginalized and underrepresented disregards the clear statutory policy. Its claim that even the super-rich and overrepresented can participate desecrates the spirit of the party-list system. 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
of

common sense. In contrast, and with admirable candor, Atty. Lorna Patajo-Kapunan admitted during the Oral Argument that a group of 43 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. Because the marginalized and underrepresented had not been able to win in the congressional district elections normally dominated by traditional politicians and vested groups, 20 percent of the seats in the House of Representatives were set aside for the party-list system. In arguing that even those sectors who normally controlled 80 percent of the seats in the House could participate in the party-list elections for the remaining 20 percent, the OSG and the Comelec disregard the fundamental difference between the congressional district elections and the party-list elections. As earlier noted, the purpose of the party-list provision was to open up the system, in order to enhance the chance of sectoral groups and 45 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. 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. Refutation of the Separate Opinions The Separate Opinions of our distinguished colleagues, Justices Jose C. Vitug and Vicente V. Mendoza, are anchored mainly on the supposed intent of the framers of the Constitution as culled from their deliberations. The fundamental principle in constitutional construction, however, is that the primary source from which to ascertain constitutional intent or purpose is the language of the provision itself. The presumption is that the words in which the constitutional provisions are couched express 46 the objective sought to be attained. In other words, verba legis still prevails. Only when the meaning of the words used is unclear and equivocal should resort be made to extraneous aids of construction and interpretation, such as the proceedings of the Constitutional 47 Commission or Convention, in order to shed light on and ascertain the true intent or purpose of the provision being construed. Indeed, as cited in the Separate Opinion of Justice Mendoza, this Court stated in Civil Liberties Union v. Executive Secretary that "the debates and proceedings of the constitutional convention [may be consulted] in order to arrive at the reason and purpose of the resulting Constitution x x x 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.' The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers' understanding thereof." Section 5, Article VI of the Constitution, relative to the party-list system, is couched in clear terms: the mechanics of the system shall be provided by law. Pursuant thereto, Congress enacted RA 7941. In understanding and implementing party-list representation, we should therefore look at the law first. Only when we find its provisions ambiguous should the use of extraneous aids of construction be resorted to. But, as discussed earlier, the intent of the law is obvious and clear from its plain words. Section 2 thereof unequivocally states that the partylist system of electing congressional representatives was designed to "enable 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
48 44

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the nation as a whole x x x." The criteria for participation is well defined. Thus, there is no need for recourse to constitutional deliberations, not even to the proceedings of Congress. In any event, the framers' deliberations merely express their individual opinions and are, at best, only persuasive in construing the meaning and purpose of the constitution or statute. Be it remembered that the constitutionality or validity of Sections 2 and 5 of RA 7941 is not an issue here. Hence, they remain parts of the law, which must be applied plainly and simply. Fourth Issue: Grave Abuse of Discretion From its assailed Omnibus Resolution, it is manifest that the Comelec failed to appreciate fully the clear policy of the law and the Constitution. On the contrary, it seems to have ignored the facet of the party-list system discussed above. The OSG as its counsel admitted before the Court that any group, even the non-marginalized and overrepresented, could field candidates in the party-list elections. When a lower court, or a quasi-judicial agency like the Commission on Elections, violates or ignores the Constitution or the law, its action can 49 be struck down by this Court on the ground of grave abuse of discretion. Indeed, the function of all judicial and quasi-judicial 50 instrumentalities is to apply the law as they find it, not to reinvent or second-guess it. In its Memorandum, Petitioner Bayan Muna passionately pleads for the outright disqualification of the major political parties Respondents Lakas-NUCD, LDP, NPC, LP and PMP on the ground that under Comelec Resolution No. 4073, they have been accredited as the five (six, including PDP-Laban) major political parties in the May 14, 2001 elections. It argues that because of this, they have the "advantage of getting official Comelec Election Returns, Certificates of Canvass, preferred poll watchers x x x." We note, however, that this accreditation does not refer to the party-list election, but, inter alia, to the election of district representatives for the purpose of determining which parties would be entitled to watchers under Section 26 of Republic Act No. 7166. What is needed under the present circumstances, however, is a factual determination of whether respondents herein and, for that matter, all the 154 previously approved groups, have the necessary qualifications to participate in the party-list elections, pursuant to the Constitution and the law. Bayan Muna also urges us to immediately rule out Respondent Mamamayan Ayaw sa Droga (MAD), because "it is a government entity using 51 government resources and privileges." This Court, however, is not a trier of facts. It is not equipped to receive evidence and determine the truth of such factual allegations. Basic rudiments of due process require that respondents should first be given an opportunity to show that they qualify under the guidelines promulgated in this Decision, before they can be deprived of their right to participate in and be elected under the party-list system. Guidelines for Screening Party-List Participants The Court, therefore, deems it proper to remand the case to the Comelec for the latter to determine, after summary evidentiary hearings, whether the 154 parties and organizations allowed to participate in the party-list elections comply with the requirements of the law. In this light, the Court finds it appropriate to lay down the following guidelines, culled from the law and the Constitution, to assist the Comelec in its work. 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. The counsel of Aksyon Demokratiko and other similarly situated political parties admitted as much during the Oral Argument, as the following quote shows: "JUSTICE PANGANIBAN: I am not disputing that in my question. All I am saying is, the political party must claim to represent the marginalized and underrepresented sectors? ATTY. KAPUNAN: Yes, Your Honor, the answer is yes."
53 52

Third, in view of the objections directed against the registration of Ang Buhay Hayaang Yumabong, which is allegedly a religious group, the Court notes the express constitutional provision that the religious sector may not be represented in the party-list system. The extent of the constitutional proscription is demonstrated by the following discussion during the deliberations of the Constitutional Commission: "MR. OPLE. x x x

In the event that a certain religious sect with nationwide and even international networks of members and supporters, in order to circumvent this prohibition, decides to form its own political party in emulation of those parties I had mentioned earlier as deriving their inspiration and philosophies from well-established religious faiths, will that also not fall within this prohibition? MR. MONSOD. If the evidence shows that the intention is to go around the prohibition, then certainly the Comelec can pierce through the 54 legal fiction." The following discussion is also pertinent: "MR. VILLACORTA. When the Commissioner proposed "EXCEPT RELIGIOUS GROUPS," he is not, of course, prohibiting priests, imams or pastors who may be elected by, say, the indigenous community sector to represent their group. REV. RIGOS. Not at all, but I am objecting to anybody who represents the Iglesia ni Kristo, the Catholic Church, the Protestant Church et 55 cetera." Furthermore, the Constitution provides that "religious denominations and sects shall not be registered." The prohibition was explained by a 57 member of the Constitutional Commission in this wise: "[T] he prohibition is on any religious organization registering as a political party. I do not see any prohibition here against a priest running as a candidate. That is not prohibited here; it is the registration of a religious sect as a 58 political party." 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 59 the party-list system in the two (2) preceding elections for the constituency in which it has registered." Note should be taken of paragraph 5, which disqualifies a party or group for violation of or failure to comply with election laws and regulations. These laws include Section 2 of RA 7941, which states that the party-list system seeks to "enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties x x x to become members of the House of Representatives." A party or an organization, therefore, that does not comply with this policy must be disqualified. 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. The participation of the government or its officials in the affairs of a party-list candidate is not only 60 illegal and unfair to other parties, but also deleterious to the objective of the law: to enable citizens belonging to marginalized and underrepresented sectors and organizations to be elected to the House of Representatives. 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,
56

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. Senator Jose Lina explained during the bicameral 61 committee proceedings that "the nominee of a party, national or regional, is not going to represent a particular district x x x." Epilogue The linchpin of this case is the clear and plain policy of the law: "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." Crucial to the resolution of this case is the fundamental social justice principle that those who have less in life should have more in law. The party-list system is one such tool intended to benefit those who have less in life. It gives the great masses of our people genuine hope and genuine power. It is a message to the destitute and the prejudiced, and even to those in the underground, that change is possible. It is an invitation for them to come out of their limbo and seize the opportunity. Clearly, therefore, the Court cannot accept the submissions of the Comelec and the other respondents that the party-list system is, without any qualification, open to all. Such position does not only weaken the electoral chances of the marginalized and underrepresented; it also prejudices them. It would gut the substance of the party-list system. Instead of generating hope, it would create a mirage. Instead of enabling the marginalized, it would further weaken them and aggravate their marginalization. In effect, the Comelec would have us believe that the party-list provisions of the Constitution and RA 7941 are nothing more than a play on dubious words, a mockery of noble intentions, and an empty offering on the altar of people empowerment. Surely, this could not have been the intention of the framers of the Constitution and the makers of RA 7941. WHEREFORE, this case is REMANDED to the Comelec, which is hereby DIRECTED to immediately conduct summary evidentiary hearings on the qualifications of the party-list participants in the light of the guidelines enunciated in this Decision. Considering the extreme urgency of determining the winners in the last party-list elections, the Comelec is directed to begin its hearings for the parties and organizations that appear to have garnered such number of votes as to qualify for seats in the House of Representatives. The Comelec is further DIRECTED to submit to this Court its compliance report within 30 days from notice hereof. 1wphi1.nt The Resolution of this Court dated May 9, 2001, directing the Comelec "to refrain from proclaiming any winner" during the last party-list election, shall remain in force until after the Comelec itself will have complied and reported its compliance with the foregoing disposition. This Decision is immediately executory upon the Commission on Elections' receipt thereof. No pronouncement as to costs. SO ORDERED.

Banat vs comelec The Case Petitioner in G.R. No. 179271 Barangay Association for National Advancement and Transparency (BANAT) in a petition for [1] [2] certiorari and mandamus, assails the Resolution promulgated on 3 August 2007 by the Commission on Elections (COMELEC) in NBC No. 07-041 (PL). The COMELECs 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 [3] Harmony Towards Educational Reforms (A Teacher) in a petition for certiorari with mandamus and prohibition, assails NBC Resolution [4] No. 07-60 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 [5] Federation Party v. COMELEC (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 [6] 93 parties under the Party-List System. 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, [7] would apply the Panganiban formula in allocating party-list seats. There were no intervenors in BANATs 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), Gabrielas Women Party (Gabriela), Association of Philippine Electric Cooperatives (APEC), A Teacher, Akb ayan! Citizens 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 ii. Total party-list votes remaining uncanvassed/ untabulated (i.e. canvass deferred) 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)

15,283,659

1,337,032

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 Citizens Battle Against Corruption (CIBAC) versus COMELEC, reiterated its ruling inVeterans 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 1,163,218 972,730 760,260

1 2 3

BUHAY BAYAN MUNA CIBAC

4 5 6 7 8 9 10 11 12 13 14

GABRIELA APEC A TEACHER AKBAYAN ALAGAD BUTIL COOP-NATCO BATAS ANAK PAWIS ARC ABONO

610,451 538,971 476,036 470,872 423,076 405,052 390,029 386,361 376,036 338,194 337,046

WHEREAS, except for Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS), against which an URGENT PETITION FOR CANCELLATION/REMOVAL OF REGISTRATION AND DISQUALIFICATION OF PARTYLIST 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 2 3 4 5 6

Buhay Hayaan Yumabong Bayan Muna Citizens Battle Against Corruption Gabriela Womens Party Association of Philippine Electric Cooperatives Advocacy for Teacher Empowerment Through Action, Cooperation Reforms, Inc. and Harmony Towards Educational

BUHAY BAYAN MUNA CIBAC GABRIELA APEC A TEACHER

7 8 9

Akbayan! Citizens Action Party Alagad Luzon Farmers Party

AKBAYAN ALAGAD BUTIL COOP-NATCCO ANAKPAWIS ARC ABONO

10 Cooperative-Natco Network Party 11 Anak Pawis 12 Alliance of Rural Concerns 13 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 COMELECs 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 1 2 3 4 5 6 7 8 9 10 11 12 13 BUHAY BAYAN MUNA CIBAC GABRIELA APEC A TEACHER AKBAYAN ALAGAD BUTIL COOP-NATCO ANAKPAWIS ARC ABONO Projected total number of votes 1,178,747 977,476 755,964 621,718 622,489 492,369 462,674 423,190 409,298 412,920 370,165 375,846 340,151

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 Citizens 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 inVeterans; 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 Equal to or at least 6% Equal to or greater than 4% but less than 6% Less than 4% Additional seats Two (2) additional seats One (1) additional seat No additional seat

WHEREAS, applying the above formula, Buhay obtained the following percentage: 1,178,747 - - - - - - - - = 0.07248 or 7.2% 16,261,369 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: No. of votes of concerned party ------------------No. of votes of first party

Additional seats for a concerned party

No. of additional seats allocated to first party

WHEREAS, applying the above formula, the results are as follows: Party List BAYAN MUNA CIBAC GABRIELA APEC A TEACHER AKBAYAN ALAGAD BUTIL COOP-NATCO ANAKPAWIS ARC ABONO Percentage 1.65 1.28 1.05 1.05 0.83 0.78 0.71 0.69 0.69 0.62 0.63 0.57 Additional Seat 1 1 1 1 0 0 0 0 0 0 0 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 BUHAY BAYAN MUNA CIBAC GABRIELA APEC

Additional Seats 2 1 1 1 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 BANATs 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. RECOMMENDATION: 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 Partyversus COMELEC formula upon completion of the canvass of the party-list results. 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 [11] Act No. 7941 (R.A. No. 7941). On the same day, the COMELEC denied reconsideration during the proceedings of the NBC. 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, [12] [13] [14] [15] Inc. (AGAP), Anak Mindanao (AMIN), and An Waray. Per the certification by COMELEC, the following party-list organizations have been proclaimed as of 19 May 2008: Party-List 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 1.10 1.11 1.12 1.13 1.14 1.15 Buhay Bayan Muna CIBAC Gabriela APEC A Teacher Akbayan Alagad Butil Coop-Natco [sic] Anak Pawis ARC Abono AGAP AMIN No. of Seat(s) 3 2 2 2 2 1 1 1 1 1 1 1 1 1 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 Constitution mandatory or is it merely a ceiling? 2. Is the three-seat limit provided in Section 11(b) of RA 7941 provided in Section 5(2), Article VI of the

constitutional? same Section 11(b) of RA 7941

3. Is the two percent threshold and qualifier votes prescribed by the 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. B. Violates the constitutional principle of proportional Violates the provisions of RA 7941 particularly: The 2-4-6 Formula used by the First Party Rule in violates the principle of proportional representation The use of two formulas in the allocation of another for the qualifying parties, violates Section allocating additional seats for under RA 7941. additional seats, one for the First 11(b) of RA 7941. representation.

1. the First Party 2. Party and

3. required under RA

The proportional relationships under the First Party 7941;

Rule are different from those

C. Violates the Four Inviolable Parameters of the Philippine the same case of Veterans Federation Party, et al. v. COMELEC.

party-list system as provided for under

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 [17] nation. 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 mandatory or merely a ceiling? 2. 3. 4. Is the three-seat limit in Section 11(b) of RA 7941 constitutional? Is the two percent threshold prescribed in Section 11(b) of RA How shall the party-list representative seats be allocated? participating in the party-list elections? If not, can [18] elections? 7941 to qualify for one seat constitutional? Section 5(2), Article VI of the Constitution

5. Does the Constitution prohibit the major political parties from the major political parties be barred from participating in the party-list

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 [19] proportion to their total number of votes. 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. 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 Number of seats available to party-list representatives

x .20 =

This formula allows for the corresponding increase in the number of seats available for party-list representatives whenever a legislative th district is created by law. Since the 14 Congress of the Philippines has 220 district representatives, there are 55 seats available to party-list representatives. 220 .80 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 x .20 = 55

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 [20] System. Veterans produced the First Party Rule, and Justice Vicente V. Mendozas dissent in Veterans presented Germanys Niemeyer [21] formula 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 st 11 (1 par.) of RA 7941 and Comelec Resolution No. 2847 dated 25 June 1996. Since there are 220 District th Representatives in the 14 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% [23] threshold rule, in accordance with Section 12 of RA 7941.

Forty-four (44) party-list seats will be awarded under BANATs 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, [24] organization or coalition as against the total nationwide votes cast for the party-list system. 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 [25] divisor in computing the allocation of seats. Thirty-four (34) party-list seats will be awarded under BANATs second interpretation. In G.R. No. 179295, Bayan Muna, Abono, and A Teacher criticize both the COMELECs 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 [26] the basis of this ranking are allocated until all the seats are filled up. 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 [27] the elections.

Rank

Party

Votes Garnered 1,169,234 979,039 755,686 621,171 619,657 490,379 466,112 423,149

Rank

Party

Votes Garnered 88,868 79,386 78,541 78,424 77,327 75,200 74,686 71,544

1 BUHAY 2 BAYAN MUNA 3 CIBAC 4 GABRIELA 5 APEC 6 A TEACHER 7 AKBAYAN 8 ALAGAD

48 KALAHI 49 APOI 50 BP 51 AHONBAYAN 52 BIGKIS 53 PMAP 54 AKAPIN 55 PBA

9 COOP-NATCCO 10 BUTIL 11 BATAS 12 ARC 13 ANAKPAWIS 14 ABONO 15 AMIN 16 AGAP 17 AN WARAY 18 YACAP 19 FPJPM 20 UNI-MAD 21 ABS 22 KAKUSA 23 KABATAAN 24 ABA-AKO 25 ALIF 26 SENIOR CITIZENS 27 AT 28 VFP 29 ANAD 30 BANAT 31 ANG KASANGGA 32 BANTAY 33 ABAKADA 34 1-UTAK 35 TUCP 36 COCOFED 37 AGHAM 38 ANAK 39 ABANSE! PINAY 40 PM 41 AVE 42 SUARA 43 ASSALAM 44 DIWA 45 ANC 46 SANLAKAS 47 ABC

409,883 409,160 385,810 374,288 370,261 339,990 338,185 328,724 321,503 310,889 300,923 245,382 235,086 228,999 228,637 218,818 217,822 213,058 197,872 196,266 188,521 177,028 170,531 169,801 166,747 164,980 162,647 155,920 146,032 141,817 130,356 119,054 110,769 110,732 110,440 107,021 99,636 97,375 90,058

56 GRECON 57 BTM 58 A SMILE 59 NELFFI 60 AKSA 61 BAGO 62 BANDILA 63 AHON 64 ASAHAN MO 65 AGBIAG! 66 SPI 67 BAHANDI 68 ADD 69 AMANG 70 ABAY PARAK 71 BABAE KA 72 SB 73 ASAP 74 PEP 75 ABA ILONGGO 76 VENDORS 77 ADD-TRIBAL 78 ALMANA 79 AANGAT PILIPINO 80 AAPS 81 HAPI 82 AAWAS 83 SM 84 AG 85 AGING PINOY 86 APO 87 BIYAYANG BUKID 88 ATS 89 UMDJ 90 BUKLOD FILIPINA 91 LYPAD 92 AA-KASOSYO 93 KASAPI TOTAL KA

62,220 60,993 58,717 57,872 57,012 55,846 54,751 54,522 51,722 50,837 50,478 46,612 45,624 43,062 42,282 36,512 34,835 34,098 33,938 33,903 33,691 32,896 32,255 29,130 26,271 25,781 22,946 20,744 16,916 16,729 16,421 16,241 14,161 9,445 8,915 8,471 8,406 6,221 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 [28] party-list. Rank Party Votes Votes Garnered Guaranteed

Garnered 1 BUHAY 2 BAYAN MUNA 3 CIBAC 4 GABRIELA 5 APEC 6 A TEACHER 7 AKBAYAN 8 ALAGAD 9 COOP-NATCCO 10 BUTIL 11 BATAS 12 ARC 13 ANAKPAWIS 14 ABONO 15 AMIN 16 AGAP 17 AN WARAY Total 18 YACAP 19 FPJPM 20 UNI-MAD 310,889 300,923 245,382
[29]

over Total Votes for Party-List, in % 7.33% 6.14% 4.74% 3.89% 3.88% 3.07% 2.92% 2.65% 2.57% 2.57% 2.42% 2.35% 2.32% 2.13% 2.12% 2.06% 2.02%

Seat 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 17

1,169,234 979,039 755,686 621,171 619,657 490,379 466,112 423,149 409,883 409,160 385,810 374,288 370,261 339,990 338,185 328,724 321,503

1.95% 1.89% 1.54%

0 0 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 isunconstitutional. 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 [30] the House of Representatives. 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 twopercenters. 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 partys 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 Votes Garnered over Total Votes for Party List, in % Guaranteed Seat Additional Seats (B) plus (C), in whole integers Applying the three seat cap

Rank

Party

Votes Garnered

(First Round) (A) 1 2 3 4 5 6 7 8 9

[31]

(Second Round) (C) (D) 2.79 2.33 1.80 1.48 1.48 1.17 1.11 1.01 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 3 3 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 1 1 1 1 1 1 1 1 1 (E) N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A.

(B) 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 0 0 0 0 0 0 0 0 0

BUHAY BAYAN MUNA CIBAC GABRIELA APEC A Teacher AKBAYAN ALAGAD COOPNATCCO BUTIL BATAS ARC ANAKPAWIS ABONO AMIN AGAP AN WARAY YACAP FPJPM UNI-MAD ABS KAKUSA KABATAAN ABA-AKO ALIF SENIOR

1,169,234 979,039 755,686 621,171 619,657 490,379 466,112 423,149 409,883 409,160 385,810 374,288 370,261 339,990 338,185 328,724 321,503 310,889 300,923 245,382 235,086 228,999 228,637 218,818 217,822 213,058

7.33% 6.14% 4.74% 3.89% 3.88% 3.07% 2.92% 2.65% 2.57% 2.57% 2.42% 2.35% 2.32% 2.13% 2.12% 2.06% 2.02% 1.95% 1.89% 1.54% 1.47% 1.44% 1.43% 1.37% 1.37% 1.34%

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

CITIZENS 27 28 29 30 31 32 33 34 35 36 Total AT VFP ANAD BANAT ANG KASANGGA BANTAY ABAKADA 1-UTAK TUCP COCOFED 197,872 196,266 188,521 177,028 170,531 169,801 166,747 164,980 162,647 155,920 1.24% 1.23% 1.18% 1.11% 1.07% 1.06% 1.05% 1.03% 1.02% 0.98% 0 0 0 0 0 0 0 0 0 0 17 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 55 N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A.

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 Taada wants to run under BAYAN group and says that he represents the farmers, would he qualify? MR. VILLACORTA. No, Senator Taada 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. xxx
[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 [33] of the party-list system to the sectoral groups. 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 organizations nominee wallow in poverty, destitution and [34] infirmity as there is no financial status required in the law. It is enough that the nominee of the sectoral party/organization/coalition [35] belongs to the marginalized and underrepresented sectors, 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.

Atung pag alum & other VS comelec The Cases These cases constitute 54 Petitions for Certiorari and Petitions for Certiorari and Prohibition 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 partylist 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, 20 November 2012, 27 November 2012, 4 5 6 7 December 2012, 11 December 2012, and 19 February 2013. 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.
2 3 4 1

G.R. No.

SPP No.

Group

Grounds for Denial

A. Via the COMELEC En Bancs automatic review of the COMELEC Divisions resolutions approving registration of groups/organizations Resolution dated 23 November 2012 1 204379 12-099 (PLM)
8

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.
9

Omnibus Resolution dated 27 November 2012 2 204455 12-041 (PLM)

Manila Teachers Savings and Loan Association, Inc. (Manila Teachers) Association of Local Athletics Entrepreneurs and Hobbyists, Inc. (ALA-EH)
10

- A non-stock savings and loan association cannot be considered marginalized and underrepresented; and - The first and second nominees are not teachers by profession. - Failure to show that its members belong to the marginalized; and - Failure of the nominees to qualify.

204426

12-011 (PLM)

Resolution dated 27 November 2012 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 2012 5 204367 12-104 (PL)

11

Akbay Kalusugan (AKIN), Inc.

12

- Failure of the group to show that its nominees belong to the urban poor sector.

Resolution dated 29 November 2012 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 2012 7 204436 12-009 (PP), 12-165 (PLM)

13

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 2012 8 204485 12-175 (PL)

14

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 Bancs review on motion for reconsideration of the COMELEC Divisions resolutions denying registration of groups and organizations Resolution dated 7 November 2012 9 204139 12-127 (PL)
15

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 2012 10 204402 12-061 (PP)

16

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 2012 11 204394 12-145 (PL)

17

Association of Guard, Utility Helper, Aider, Rider, Driver/ Domestic Helper, Janitor, Agent and Nanny of the Philippines, Inc. (GUARDJAN)
18

- 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 2012 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, the COMELEC En Banc affirmed the COMELEC Second Divisions resolution to grant Partido ng Bayan ng Bidas (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 20 of the "marginalized and underrepresented." These 13 petitioners (ASIN, Manila Teachers, ALA-EH, 1AAAP, AKIN, AAB, AI, ALONA, ALAM, KALIKASAN, GUARDJAN, PPP, and PBB) 21 were not able to secure a mandatory injunction from this Court. The COMELEC, on 7 January 2013 issued Resolution No. 9604, and excluded the names of these 13 petitioners in the printing of the official ballot for the 13 May 2013 party-list elections. 22 Pursuant to paragraph 2 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 23 with the requirements of R.A. No. 7941 and Ang Bagong Bayani-OFW Labor Party v. COMELEC (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
24

19

Grounds for Denial

Resolution dated 10 October 2012 1 20381819 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.
25

Omnibus Resolution dated 11 October 2012 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. 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. 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. 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

203981

12-187 (PLM)

Association for Righteousness Advocacy on Leadership (ARAL)

204002

12-188 (PLM)

Alliance for Rural Concerns (ARC)

204318

12-220 (PLM)

United Movement Against Drugs Foundation (UNIMAD)

- Failure of the nominees to qualify as representatives of the youth and young urban professionals. Omnibus Resolution dated 16 October 2012 6 204100 12-196 (PLM) 1-Bro Philippine Guardians Brotherhood, Inc. (1BRO-PGBI)
26

Cancelled registration - Failure to define the sector it seeks to represent; and - The nominees do not belong to a marginalized and underrepresented sector. 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. 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.

204122

12-223 (PLM)

1 Guardians Nationalist Philippines, Inc. (1GANAP/ GUARDIANS)

20426

12-257 (PLM)

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

Resolution dated 16 October 2012 9 203960 12-260 (PLM)

27

1st Consumers Alliance for Rural Energy, Inc. (1-CARE)

Cancelled registration - The sector of rural energy consumers is not marginalized and underrepresented; - The partys 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 2012 10 203922 12-201 (PLM)

28

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 2012 11 204174 12-232 (PLM)

29

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 2012 12 203976 12-288 (PLM) Alliance for Rural and Agrarian Reconstruction, Inc. (ARARO)
30

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.
31

Omnibus Resolution dated 24 October 2012 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. 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. 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. Cancelled registration - Failure to show that nominees actually belong to the sector, or that they have undertaken meaningful activities for the sector.

14 203936

12-248 (PLM)

Aksyon Magsasaka-Partido Tinig ng Masa (AKMA-PTM)

15 204126

12-263 (PLM)

Kaagapay ng Nagkakaisang Agilang Pilipinong Magsasaka (KAP)

16 204364

12-180 (PLM)

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

17 204141

12-229 (PLM)

The True Marcos Loyalist (for God, Country and People) Association of the Philippines, Inc. (BANTAY) Pilipino Association for Country Urban Poor Youth Advancement and Welfare ( PA C YAW )

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. 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. Cancelled registration - The party represents drivers and operators, who may have conflicting interests; and - Nominees are either operators or former operators. 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.

18 204408

12-217 (PLM)

19 204153

12-277 (PLM)

Pasang Masda Nationwide Party (PASANG MASDA)

20 203958

12-015 (PLM)

Kapatiran ng mga Nakulong na Walang Sala, Inc. (KAKUSA)

Resolution dated 30 October 2012 21 204428 12-256 (PLM)

32

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 2012 22 204094 12-185 (PLM)

33

Alliance for Nationalism and Democracy

Cancelled registration and accreditation - Failure to represent an

(ANAD)

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.
34

Omnibus Resolution dated 7 November 2012 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. 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. 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 partys nominees reside in the Mindanao and Cordilleras; and - Three of the nominees do not appear to belong to the marginalized.

24 204236

12-254 (PLM)

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

25 204341

12-269 (PLM)

Action League of Indigenous Masses (ALIM)

Resolution dated 7 November 2012 26 204358 12-204 (PLM)

35

Alliance of Advocates in Mining Advancement for National Progress (AAMA)

36

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 2012 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 2012 28 204238 12-173 (PLM)
37

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 2012 29 204323 12-210 (PLM)

38

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 2012 30 204321 12-252 (PLM)

39

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 partys nominees do not belong to the farmers sector.

Resolution dated 7 November 2012 31 204125 12-292 (PLM)

40

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 2012 32 204216 12-202 (PLM)

41

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 2012

42

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 2012 34 204158 12-158 (PLM)

43

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 2012 35 204374 12-228 (PLM)

44

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 2012 36 204356 12-136 (PLM)

45

Butil Farmers Party (BUTIL)

Cancelled registration and accreditation - Failure to establish that the agriculture and cooperative sectors are marginalized and underrepresented; and - The partys 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 2012 37 204486 12-194 (PLM)

46

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 2012

47

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 partys nominees do not belong to any marginalized and underrepresented sector.

Resolution dated 4 December 2012 39 204421, 204425 12-157 (PLM), 12-191 (PLM)

48

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) 203981 204002 203922 203960 12-187 (PLM) 12-188 (PLM) 12-201 (PLM) 12-260 (PLM) 12-248 (PLM) 12-015 (PLM) 12-288 (PLM) AKO Bicol Political Party (AKB)

Association for Righteousness Advocacy on Leadership (ARAL) Alliance for Rural Concerns (ARC) Association of Philippine Electric Cooperatives (APEC) 1st Consumers Alliance for Rural Energy, Inc. (1-CARE) Aksyon Magsasaka-Partido Tinig ng Masa (AKMA-PTM) Kapatiran ng mga Nakulong na Walang Sala, Inc. (KAKUSA) Alliance for Rural and Agrarian Reconstruction, Inc. (ARARO)

203936 203958 203976

Resolution dated 20 November 2012 204094 204125 204100 12-185 (PLM) 12-292 (PLM) 12-196 (PLM) Alliance for Nationalism and Democracy (ANAD) Agapay ng Indigenous Peoples Rights Alliance, Inc. (A-IPRA) 1-Bro Philippine Guardians Brotherhood, Inc. (1BRO-PGBI)

Resolution dated 27 November 2012 204141 12-229 (PLM) 12-279 (PLM) The True Marcos Loyalist (for God, Country and People) Association of the Philippines, Inc. (BANTAY) Agri-Agra na Reporma Para sa Magsasaka ng Pilipinas Movement (AGRI)

204240

204216 204158

12-202 (PLM) 12-158 (PLM)

Philippine Coconut Producers Federation, Inc. (COCOFED) Action Brotherhood for Active Dreamer, Inc. (ABROAD)

Resolutions dated 4 December 2012 204122 203766 204318 204263 204174 204126 204364 12-223 (PLM) 12-161 (PLM) 12-220 (PLM) 12-257 (PLM) 12-232 (PLM) 12-263 (PLM) 12-180 (PLM) 12-127 (PL) 12-238 (PLM) 12-254 (PLM) 12-173 (PLM) 12-060 (PLM) 12-252 (PLM) 12-210 (PLM) 12-269 (PLM) 12-204 (PLM) 12-272 (PLM) 12-136 (PLM) 1 Guardians Nationalist Philippines, Inc. (1GANAP/GUARDIANS) Atong Paglaum, Inc. (Atong Paglaum) United Movement Against Drugs Foundation (UNIMAD) Blessed Federation of Farmers and Fishermen International, Inc. (A BLESSED Party-List) Aangat Tayo Party-List Party (AT) Kaagapay ng Nagkakaisang Agilang Pilipinong Magsasaka (KAP) Adhikain at Kilusan ng Ordinaryong Tao Para sa Lupa, Pabahay, Hanapbuhay at Kaunlaran (AKO-BAHAY) Alab ng Mamamahayag (ALAM) Abang Lingkod Party-List (ABANG LINGKOD) Firm 24-K Association, Inc. (FIRM 24-K) Alliance of Bicolnon Party (ABP) Green Force for the Environment Sons and Daughters of Mother Earth (GREENFORCE) Ang Agrikultura Natin Isulong (AANI) Bayani Party List (BAYANI) Action League of Indigenous Masses (ALIM) Alliance of Advocates in Mining Advancement for National Progress (AAMA) Social Movement for Active Reform and Transparency (SMART) Butil Farmers Party (BUTIL)

204139 204220 204236 204238 204239 204321 204323 204341 204358 204359 204356

Resolution dated 11 December 2012 204402 204394 12-061 (PL) 12-145 (PL) Kalikasan Party-List (KALIKASAN) Association of Guard, Utility Helper, Aider, Rider, Driver/Domestic Helper, Janitor, Agent and Nanny of the Philippines, Inc. (GUARDJAN) Pilipino Association for Country Urban Poor Youth Advancement and Welfare (PACYAW) Ang Galing Pinoy (AG) Pilipinas Para sa Pinoy (PPP)

204408 204428 204490

12-217 (PLM) 12-256 (PLM) 12-073 (PLM)

204379 204367 204426 204455 204374 204370 204435 204486 204410 204421, 204425

12-099 (PLM) 12-104 (PL) 12-011 (PLM) 12-041 (PLM) 12-228 (PLM) 12-011 (PP) 12-057 (PLM) 12-194 (PLM) 12-198 (PLM) 12-157 (PLM) 12-191 (PLM)

Alagad ng Sining (ASIN) Akbay Kalusugan (AKIN) Association of Local Athletics Entrepreneurs and Hobbyists, Inc. (ALA-EH) Manila Teachers Savings and Loan Association, Inc. (Manila Teachers) Binhi-Partido ng mga Magsasaka Para sa mga Magsasaka (BINHI) Ako An Bisaya (AAB) 1 Alliance Advocating Autonomy Party (1AAAP) 1st Kabalikat ng Bayan Ginhawang Sangkatauhan (1st KABAGIS) 1-United Transport Koalisyon (1-UTAK) Coalition of Senior Citizens in the Philippines, Inc. (SENIOR CITIZENS)

204436

12-009 (PP), Abyan Ilonggo Party (AI) 12-165 (PLM) 12-175 (PL) 11-002 Alliance of Organizations, Networks and Associations of the Philippines, Inc. (ALONA) Partido ng Bayan ng Bida (PBB)

204485 204484

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 49 Transparency v. Commission on Elections (BANAT) should be applied by the COMELEC in the coming 13 May 2013 party-list elections. The Courts 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 50 Representatives. 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 51 that of the sectoral representation." 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 womens party gets 2 1/2 percent and anybody who has at least 2 1/2 percent of the vot e 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 Taada wants to run under BAYAN group and says that he represents the farmers, would he qualify? MR. VILLACORTA. No, Senator Taada 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 52 decisions on this matter are final and unappealable. (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 53 come from the different marginalized sectors that we shall designate in this Constitution." 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 partylist 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 54 themselves in the multi-party electoral contest with the more veteran political groups. (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 55 representatives was only allowed for the first three consecutive terms. 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 partylist 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 partylist 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 56 communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals." 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 welldefined 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. 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 58 Statistical Coordination Board. 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.
57

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 secto rs 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 partylist system. This inherent inconsistency in Ang Bagong Bayani has been compounded by the COMELECs 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 59 of Representatives at the start of the Tenth Congress" from participating in the May 1988 party-list elections. 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 "welldefined 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.1wphi1 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 60 major political parties from participating in party-list elections, 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 61 of major political parties from the party-list elections in patent violation of the Constitution and the law." The experimentations in sociopolitical 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 62 qualified to participate in the coming 13 May 2013 party-list elections. For this purpose, we suspend our rule 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

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 1 consonant to that reason and calculated to effect that purpose. (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 Muos-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 2 why I say that the Article on Social Justice is the heart of the new Charter. (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 3 equitably diffusing wealth and political power for the common good." 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 4 conception may at least be approximated. (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 peoples freedom and legal equality woul d 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 Muos 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) peoples 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 Muoz 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 peoples 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 Commissions Sponsorship Committee, I have the honor to move for the approval of the draft 5 Constitution of the Republic of the Philippines on Second Reading. It is within this historical and textual millieu that the party-list provisions in the 1987 Constitution should be interpreted. Every provision should 6 be read in the context of all the other provisions so that contours of constitutional policy is made clear. 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 7 political arena. 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 e mbodies 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 rema in a distinct element of the process of selecting legitimate representatives, occurring prior to the electoral process, such mirror representation is still recogni zable as a distinct 8 mechanism for selecting representative agents. (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 9 opened the debates on the party-list system. 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 peoples power. Kaya kami naririto sa Con -Com ay dahil sa peoples 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 kayat napakahalaga noong Section 5 and Section 31 ng a ting 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 11 Bagong, 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 12 decisions is that when the law can be interpreted in more ways than one, an interpretation that favors the underprivileged must be favored. 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 13 in order to claim a voice in the National Assembly. (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 ponencias 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 ma rginalized 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 14 standards prescribed by the law, then the standards may be deemed sufficient. 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 15 to give life to the "social justice" policy of our Constitution. 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 16 functions as may expressly be delegated to it by Congress. 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 17 not impossible, to anticipate situations that may be met in carrying laws into effect. 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 18 rules and regulations calculated to promote public interest. This is the principle of subordinate legislation discussed in People v. 19 20 Rosenthal and in Pangasinan Transportation vs. Public Service Commission. 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 21 does not even have to be spelled out. It could be implied from the policy and purpose of the act considered as a whole. Consequently, we 22 23 have held that "public welfare" and "public interest" 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 theponencia 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 theponencia, 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 nominees 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 theponencia, 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 24 win seats in the legislature." 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 nominees 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 groups 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 nominees 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 Bayani (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 26 Representatives by enhancing party-list groups "chances to compete for and win seats in the legislature"" 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, groups to be represented in Congress.
27 25

will allow more party-list

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. 1st Round (guaranteed seats) 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 2 2 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 2nd Round (guaranteed seats)

Rank

Party-list group

Votes Garnered 1,466,000

% 7.33% 6.41% 4.74% 3.89% 3.88% 3.07% 2.92% 2.65% 2.57% 2.57% 2.42% 2.35% 2.32% 2.13% 2.12% 2.06% 2.02% 1.95% 1.89% 1.54% 1.47% 1.44%

Total # Of seats 3 3 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 1 1 1 1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

AAA 1,228,000 BBB 1,040,000 CCC 1,020,000 DDD 998,000 EEE 960,000 FFF 942,000 GGG 926,000 HHH 910,000 III 796,000 JJJ 750,000 KKK 738,000 LLL 718,000 MMM 698,000 NNN 678,000 OOO 658,000 PPP 598,000 QQQ 482,000 RRR 378,000 SSS 318,000 TTT 294,000 UUU 292,000 VVV

290,000 23 24 25 26 27 28 29 30 31 32 33 34 35 WWW 280,000 XXX 274,000 YYY 268,000 ZZZ 256,000 I-A 248,000 I-B 238,000 I-C 222,000 I-D 214,000 I-E 212,000 I-F 210,000 I-G 206,000 I-H 194,000 I-I 20,000,000

1.43% 1.37% 1.37% 1.34% 1.24% 1.23% 1.18% 1.11% 1.07% 1.06% 1.05% 1.03% 1.02% 17

1 1 1 1 1 1 1 1 1

1 1 1 1 1 1 1 1 1

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 groups 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 groups 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 groupswhether or not entitled to guaranteed seatsare disqualified, then those partylist 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-Es 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, RRRs 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 ponencias 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: 1. 2. 3. 4. 5. 6. 7. 8. 9. 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 ponencias 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 28 are classified as national or regional parties. Thus, if we were to strictly apply the ponencias 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 29 the requirements of RA No. 7941 and the Ang Bagong Bayani 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 COMELECs administrative pow ers 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 30 administrative power. Thus, in Limkaichong v COMELEC, 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 31 in the proper sense of the term. As held in Bautista v CA: Petitioner submits that a prosecutor conducting a preliminary investigation performs a quasi-judicial function, citingCojuangco 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 quasijudicial 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 32 of rights with fianlity. This makes it akin to judicial power which has for its purpose, among others, the settlement of actual controversies 33 involving rights which are legally demandable and enforceable. 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 34 general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. 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 35 elections are held. (Emphasis supplied) In Panlilio v Commission on Elections, 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
36

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 COMELECs action B. COMELECs 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 Serenos 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 COMELECs 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 Divisions 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 Bancs authority under COMELEC Resolution No. 9513 to conduct an automatic review of its Divisions 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 COMELECs cancellation of their existing registration/accreditatio n 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 Bancs appreciation of facts and its application of the guidelines of Ang Bagong Bayani, which either addre ssed 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 Courts 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. COMELECs 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 partylist 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
1

"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 underrepresentation 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 COMELECs Rules of Procedure. They must submit to the Commission on Elections (COM ELEC) their constitution, by-laws, platform or program of government, list of officers, coalition agreement and other relevant information as the 2 COMELEC may require. To sum up these Ang Bagong Bayani objections, the party-list system as principally espoused by Commissioner Christian Monsod and duly approved by the Commissions 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 Constitutions solicitous concern for the marginalized and under-represented sectors as understood in the social justice context, and RA 7941s 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 f ide membership, in accordance with the political partys 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 laws requirement of the submission of a list containing at least five (qualified) nominees is mandatory, and a partys inexcusable failure to comply with this req uirement 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.
3

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 make rs 4 action, 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 COMELECs refusal or cancellation of r egistration 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 COMELECs 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 5 manner by reason of passion and hostility. Arguably under the above standards, it may be claimed that since the COMELEC merely complied with the prevailing jurisprudence (in particular. with the Courts pronouncement in Ang Bagong Bayani v. COMELEC and Banat v. COMELEC), then it could not have acte d 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 doctrines interpretation of the Constitution, then the Court wo uld 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 Courts 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 6 best in its role as guardian of the Constitution. 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, 7 8 overturned. Indeed, if the act done is contrary to the Constitution, then the existence of grave abuse of discretion cannot be doubted.

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 underrepresented" (as this term is understood in Ang Bagong Bayani), and in recognizing that a genuine advocate of a sectoral party or 9 organization may be validly included in the list of nominees the Court would not be violating the principle of prospectivity. 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 Bancs 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 Divisions ruling granting a petition for registration is appropriately an exercise of the COMELECs 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. 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 11 quasi judicial functions. (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 registe red partys 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 COMELECs power of review as an incident of its power to register. To hold otherwise would em asculate 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:
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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 12 seem, as the words used carry meanings and intents expressed during the deliberations and the voting that took place to determine what 13 the Constitution would exactly provide. 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 14 on the basis of a uniform and progressive ratio." The proponent, Commissioner Christian Monsod, described the new party-list system in terms of its purpose, as follows:
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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 Commissioners subsequent sta tement 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 16 basis. But they must have a constituency of at least 400,000 in order to claim a voice in the National Assembly. 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 17 system. (emphases and italics ours) and clarified the States policy, objectives and m eans, 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 18 legislature under the simplest scheme possible. 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 19 election purposes. (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 20 nation as a whole. (italics and emphases ours) b. BANAT Case Barangay Association for National Advancement and Transparency (BANAT) v. Commission on Elections 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 view 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 organizations 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 Bayanis 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 23 context, to justify its reading of the constitutional intent. 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 24 words of the Constitution. 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.
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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 25 specified sectoral groups, but the guarantee was only for the first three (3) elections after the ratification of the Constitution. 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 26 amendment 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 27 allowed. 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 28 or group interests in the House of Representatives. 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 organizations 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 29 system that should be allowed to evolve according to the free choice of the people within the limits of the Constitution. 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 30 Bayani-OFW Labor Party v. COMELEC, 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, 31 and professionals.

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 32 identified with the "marginalized or underrepresented. 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, A ng Bagong Bayanis 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 welldefined 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 interpretation and the maxim ut magis valeat quam pereat, 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 33 34

(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, 36 Commissioner Monsod proposed an amendment (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, 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 38 active participants in the mainstream of representative democracy. (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.
37

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 COMELECs refusal and cancellation of registration or accreditation of parties based on Section 6 of RA No. 7941 is a sor e 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 39 candidates in a district. Thus, the nominee in the party-list system is effectively merely an agent of the party. It is the party-list group for 40 whom the right of suffrage 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 partylist 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, i t is only after a partys 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 par ty-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 41 enactment of appropriate legislation." 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 42 one-way mirror relationship. The nominee can only see (and therefore run) through the party-list group 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 partys 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 nominees status as a representative. These realities render indisputable th at 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 COMELECs 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 43 nominee may withdraw his nomination, we ruled it invalid to allow the party to withdraw the nomination it made 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 44 electorate from the capriciousness of the party-list organizations." We also recognize the importance of informing the public who the nominees of the party-list groups are as these nominees may eventually be 45 in Congress. 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 latters bona fide members hip 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 partys 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. When under the COMELECs 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.
46

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 partys 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 47 statutory and other legal requirements. 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 Serenos 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 Constitutions electoral provisions, specifically the elections for the House of Representatives and the nations basic electoral policies (expressed in the Artic le 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 48 information that the COMELEC may require. 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 COMELECs 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. W hile 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 petitions 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.
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ROLANDO P. DELA TORRE vs. COMMISSION ON ELECTIONS RESOLUTION FRANCISCO, J.: Petitioner Rolando P. Dela Torre via the instant petition for certiorari seeks the nullification of two resolutions issued by the Commission on Elections (COMELEC) allegedly with grave abuse of discretion amounting to lack of jurisdiction in SPA No. 95-047, a case for [1] disqualification filed against petitioner before the COMELEC. The first assailed resolution dated May 6,1995 declared the petitioner disqualified from running for the position of Mayor of Cavinti, Laguna in the last May 8,1995 elections, citing as the ground therefor, Section 40(a) of Republic Act No. 7160 (the Local Government Code [2] of 1991) which provides as follows: Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment within two (2) years after serving sentence; (b) x x x xxx x x x.

In disqualifying the petitioner, the COMELEC held that: Documentary evidence x x x established that herein respondent (petitioner in this case) was found guilty by the Municipal Tr ial Court, x x x in Criminal Case No. 14723 for violation of P.D. 1612, (otherwise known as the Anti-fencing Law) in a Decision dated June 1,1990. Respondent appealed the said conviction with the Regional Trial Court x x x, which however, affirmed respondents conviction in a Decision dated November 14,1990. Respondents conviction became final on January 18,1991. x x x xxx xxx

x x x, there exists legal grounds to disqualify respondent as candidate for Mayor of Cavinti, Laguna this coming elections. Although there is dearth of jurisprudence involving violation of the Anti -Fencing Law of 1979 or P.D.1612 x x x, the nature of the offense under P.D. 1612 with [3] which respondent was convicted certainly involves moral turpitude x x x. The second assailed resolution, dated August 28, 1995, denied petitioners motion for reconsideration. In said motion, petitioner claimed that Section 40 (a) of the Local Government Code does not apply to his case inasmuch as the probation granted him by the MTC on December 21, 1994 which suspended the execution of the judgment of conviction and all other legal consequences flowing therefrom, [4] rendered inapplicable Section 40 (a) as well. The two (2) issues to be resolved are: 1. Whether or not the crime of fencing involves moral turpitude. 2. Whether or not a grant of probation affects Section 40 (a)s applicability. Particularly involved in the first issue is the first of two instances contemplated in Section 40 (a) when prior conviction of a crime becomes a ground for disqualification - i, e., when the conviction by final judgment is for an offense involving moral turpitude. And in this connection, the Court has consistently adopted the definition in Blacks Law Dictionary of moral turpitude as: x x x an act of baseness, vileness, or depravity in the private duties whic h a man owes his fellowmen, or to society in general, contrary to the [5] accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals. Not every criminal act, however, involves moral turpitude. It is for this reason that as to what crime involves moral turpitude, is for the [6] Supreme Court to determine. In resolving the foregoing question, the Court is guided by one of the general rules that crimes mala in [7] [8] se involve moral turpitude, while crimes mala prohibita do not , the rationale of which was set forth in Zari v. Flores, to wit: It (moral turpitude) implies something immoral in itself, regardless of the fact that it is punishable by law or not. It must not be merely mala prohibita, but the act itself must be inherently immoral. The doing of the act itself, and not its prohibition by statute fixes the moral turpitude. Moral turpitude does not, however, include such acts as are not of themselves immoral but whose illegality lies in their being [9] positively prohibited. This guideline nonetheless proved short of providing a clear-cut solution, for in International Rice Research Institute v. NLRC, the Court admitted that it cannot always be ascertained whether moral turpitude does or does not exist by merely classifying a crime asmalum in se or as malum prohibitum. There are crimes which are mala in se and yet but rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala prohibita only. In the final analysis, whether or not a crime involves moral turpitude is ultimately a [11] question of fact and frequently depends on all the circumstances surrounding the violation of the statute. The Court in this case shall nonetheless dispense with a review of the facts and circumstances surrounding the commission of the crime, inasmuch as petitioner after all does not assail his conviction. Petitioner has in effect admitted all the elements of the crime of fencing. At any rate, the determination of whether or not fencing involves moral turpitude can likewise be achieved by analyzing the elements alone.
[10]

Fencing is defined in Section 2 of P.D.1612 (Anti-Fencing Law) as: a. x x x the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows, or should be known to [12] him, to have been derived from the proceeds of the crime of robbery or theft. From the foregoing definition may be gleaned the elements of the crime of fencing which are: "1. A crime of robbery or theft has been committed; 2. The accused who is not a principal or accomplice in the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which have been derived from the proceeds of the said crime; 3. The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and [Underscoring supplied.] 4. There is, on the part of the accused, intent to gain for himself or for another.
[13]

Moral turpitude is deducible from the third element. Actual knowledge by the fence of the fact that property received is stolen displays the same degree of malicious deprivation of ones rightful property as that which animated the robbery or theft which, by the ir very nature, are crimes of moral turpitude. And although the participation of each felon in the unlawful taking differs in point in time and in degree, both the fence and the actual perpetrator/s of the robbery or theft invaded ones peaceful dominion for gain - thus deliberately reneging in the process private duties they owe their fellowmen or society in a manner contrary to x x x accepted and customary rule of right and duty x x x, justice, honesty x x x or good morals. The duty not to appropriate, or to return, anything acquired either by mistake or with malice is so basic it finds expression in some key provisions of the Civil Code on Human Relations and Solutio Indebiti, to wit: Article 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Article 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. Article 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. Article 22. Every person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him. Article 2154. If something is received when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises. The same underlying reason holds even if the fence did not have actual knowledge, but merely should have known the origin of the property received. In this regard, the Court held: When knowledge of the existence of a particular fact is an element of the offense, such knowledg e is established if a person is aware of the high probability of its existence unless he actually believes that it does not exist. On the other hand, the words should know denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in the performance of his duty to another or would govern his [14] conduct upon assumption that such fact exists . [Italics supplied.] Verily, circumstances normally exist to forewarn, for instance, a reasonably vigilant buyer that the object of the sale may have been derived from the proceeds of robbery or theft. Such circumstances include the time and place of the sale, both of which may not be in accord with the usual practices of commerce. The nature and condition of the goods sold, and the fact that the seller is not regularly engaged in the business of selling goods may likewise suggest the illegality of their source, and therefore should caution the buyer. This justifies the presumption found in Section 5 of P.D. No. 1612 that mere possession of any goods, x x x, object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing - a presumption that is, according to the Court, reasonable for no [15] other natural or logical inference can arise from the established fact of x x x possession of the proceeds of the crime of robbery or theft. All told, the COMELEC did not err in disqualifying the petitioner on the ground that the offense of fencing of which he had been previously convicted by final judgment was one involving moral turpitude. Anent the second issue where petitioner contends that his probation had the effect of suspending the applicability of Section 40 (a) of [16] the Local Government Code, suffice it to say that the legal effect of probation is only to suspend the execution of the sentence. Petitioners conviction of fencing which we have heretofore declared as a crime of moral turpitude and thus falling squarely under the disqualification found in Section 40 (a), subsists and remains totally unaffected notwithstanding the grant of probation. In fact, a judgment of conviction in a criminal case ipso facto attains finality when the accused applies for probation, although it is not executory pending resolution of the [17] application for probation. Clearly then, petitioners theory has no merit. ACCORDINGLY, the instant petition for certiorari is hereby DISMISSED and the assailed resolutions of the COMELEC dated May 6,1995 and August 28,1995 are AFFIRMED in toto.

SO ORDERED. Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Hermosisima, Jr., Panganiban, and Torres, Jr., JJ., concur.

VILLABER, petitioner, vs. COMMISSION ON ELECTIONS SANDOVAL-GUTIERREZ, J.: In this petition for certiorari, Pablo C. Villaber, petitioner, seeks the nullification of two Resolutions of the Commission on Elections (COMELEC) in SPA-01-058. The first one was issued by its Second Division on April 30, 2001, disqualifying him as a candidate for the position of Congressman in the First District of the Province of Davao del Sur in the last May 14, 2001 elections, and cancelling his certificate of candidacy; and the second is the en bancResolution dated May 10, 2001 denying his motion for reconsideration. Both petitioner Villaber and respondent Douglas R. Cagas were rival candidates for a congressional seat in the First District of Davao [1] del Sur during the May 14, 2001 elections. Villaber filed his certificate of candidacy for Congressman on February 19, 2001, while Cagas [2] filed his on February 28, 2001. On March 4, 2001, Cagas filed with the Office of the Provincial Election Supervisor, Commission On Elections (COMELEC), Davao del [3] Sur, a consolidated petition to disqualify Villaber and to cancel the latters certificate of candidacy . Cagas alleged in the said consolidated petition that on March 2, 1990, Villaber was convicted by the Regional Trial Court of Manila, Branch 15, in Criminal Case No. 86-46197 for violation of Batas Pambansa Blg. 22 and was sentenced to suffer one (1) year imprisonment. The check that bounced was in the sum of [4] P100,000.00. Cagas further alleged that this crime involves moral turpitude; hence, under Section 12 of the Omnibus Election Code, he is disqualified to run for any public office. On appeal, the Court of Appeals (Tenth Division), in its Decision dated April 23, 1992 in CA-G.R. [5] CR No. 09017, affirmed the RTC Decision. Undaunted, Villaber filed with this Court a petition for review on certiorari assailing the Court of [6] Appeals Decision, docketed as G.R. No. 106709. However, in its Resolution of October 26, 1992, this Court (Third Division) dismissed the [7] petition. On February 2, 1993, our Resolution became final and executory. Cagas also asserted that Villaber made a false material representation in his certificate of candidacy that he is Eligible for the office I seek to be elected which false statement is a ground to deny due course or cancel the said certificate pursuant to Section 78 of the Omnibus Election Code. In his answer to the disqualification suit, Villaber countered mainly that his conviction has not become final and executory because the [9] affirmed Decision was not remanded to the trial court for promulgation in his presence. Furthermore, even if the judgment of conviction was already final and executory, it cannot be the basis for his disqualification since violation of B.P. Blg. 22 does not involve moral turpitude. After the opposing parties submitted their respective position papers, the case was forwarded to the COMELEC, Manila, for resolution. On April 30, 2001, the COMELEC (Second Division), finding merit in Cagas petition, issued the challenged Resolution in SPA 01-058 declaring Villaber disqualified as a candidate for and from holding any elective public office and canceling his certificat e of candidacy. The COMELEC ruled that a conviction for violation of B.P Blg. 22 involves moral turpitude following the ruling of this Court en banc in the [11] administrative case of People vs. Atty. Fe Tuanda. Villaber filed a motion for reconsideration but was denied by the COMELEC en banc in a Resolution Hence, this petition. The sole issue for our Resolution is whether or not violation of B.P. Blg. 22 involves moral turpitude. The COMELEC believes it is. In disqualifying petitioner Villaber from being a candidate for Congressman, the COMELEC applied Section 12 of the Omnibus Election Code which provides: Sec. 12. Disqualifications. - Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion, or for any offense for which he has been sentenced to a penalty of more than eighteen months, or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. The disqualifications to be a candidate herein provided shall be deemed removed upon the de claration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified. (Emphasis ours) As to the meaning of moral turpitude, we have consistently adopted the definition in Blacks Law Dictionary as an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary [13] rule of right and duty between man and woman, or conduct contrary to justice, honesty, modesty, or good morals. In In re Vinzon, good morals.
[14] [12] [10] [8]

dated May 10, 2001.

the term moral turpitude is considered as encompassing everything which is done contrary to justice, honesty, or
[15]

We, however, clarified in Dela Torre vs. Commission on Elections that not every criminal act involves moral turpitude, and that [16] as to what crime involves moral turpitude is for the Supreme Court to determine. We further pronounced therein that: in International Rice Research Institute vs. NLRC (221 SCRA 760 [1993]), the Court admitted that it cannot always be ascertained whether moral turpitude does or does not exist by merely classifying a crime as malum in se or as malum prohibitum. There are crimes which are mala in seand yet but rarely involve moral turpitude, and there are crimes which involve moral turpitude and are mala prohibita only. In the final analysis, whether or not a crime involves moral turpitude is ultimately a question of fact and frequently depends on all the circumstances surrounding the violation of the statute. (Emphasis ours)

We reiterate here our ruling in Dela Torre that the determination of whether a crime involves moral turpitude is a question of fact and frequently depends on all the circumstances surrounding the violation of the statute. In the case at bar, petitioner does not assail the facts and circumstances surrounding the commission of the crime. In effect, he admits all the elements of the crime for which he was convicted. At any rate, the question of whether or not the crime involves moral turpitude can [18] be resolved by analyzing its elements alone, as we did in Dela Torre which involves the crime of fencing punishable by a special law. Petitioner was charged for violating B.P. Blg. 22 under the following Information: That on or about February 13, 1986, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously make or draw and issue to Efren D. Sawal to apply on account or for value Bank of Philippine Islands (Plaza Cervantes, Manila) Check No. 958214 dated February 13, 1986 payable to Efren D. Sawal in the amount of P100,000.00, said accused well knowing that at the time of issue he did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment, which check, when presented for payment within ninety (90) days from the date thereof, was subsequently dishonored by the drawee bank for insufficiency of funds, and despite receipt of notice of such dishonor, said accused failed to pay said Efren D. Sawal the amount of said check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice. (Emphasis ours) He was convicted for violating Section 1 of B.P. Blg. 22 which provides: SECTION 1. Checks without sufficient funds. - Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the court. (Emphasis ours). The elements of the offense under the above provision are: 1. The accused makes, draws or issues any check to apply to account or for value; 2. The accused knows at the time of the issuance that he or she does not have sufficient funds in, or credit with, the drawee bank for the payment of the check in full upon its presentment ; and 3. The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or it would have been dishonored [19] for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment. The presence of the second element manifests moral turpitude. In People vs. Atty. Fe Tuanda we held that a conviction for [21] violation of B.P. Blg. 22 imports deceit and certainly relates to and affects the good moral character of a person. The effects of the [22] issuance of a worthless check, as we held in the landmark case of Lozano vs. Martinez, through Justice Pedro L. Yap, transcends the private interests of the parties directly involved in the transaction and touches the interests of the community at large. The mischief it creates is not only a wrong to the payee or holder, but also an injury to the public since the circulation of valueless commercial papers can very well pollute the channels of trade and commerce, injure the banking system and eventually hurt the welfare of society and the public [23] interest. Thus, paraphrasing Blacks definition, a drawer who issues an unfunded check deliberately reneges on his private duties he ow es his fellow men or society in a manner contrary to accepted and customary rule of right and duty, justice, honesty or good morals. Petitioner contends that this Courts pronouncement in People v. Atty. Fe Tuanda, 22 involves moral turpitude, does not apply to him since he is not a lawyer. This argument is erroneous. In that case, the Court of Appeals affirmed Atty. Fe Tuandas con viction for violation of B.P. Blg. 22 and, in addition, suspended her from the practice of law pursuant to Sections 27 and 28 of Rule 138 of the Revised Rules of Court. Her motion seeking the lifting of her suspension was denied by this Court on the ground that the said offense involves moral turpitude. There we said in part: We should add that the crimes of which respondent was convicted also import deceit and violation of her attorneys oath and the Code of Professional Responsibility, under both of which she was bound to obey the laws of the land. Conviction of a crime involving moral turpitude might not (as in the instant case, violation of B.P. Blg. 22 does not) relate to the exercise of the profession of a lawyer; however, [25] it certainly relates to and affects the good moral character of a person convicted of such offense . x x x. (Emphasis ours) Clearly, in Tuanda, this Court did not make a distinction whether the offender is a lawyer or a non-lawyer. Nor did it declare that such offense constitutes moral turpitude when committed by a member of the Bar but is not so when committed by a non-member. We cannot go along with petitioners contention that this Courts ruling in Tuanda has been abandoned or modified in the recent case of [26] [27] Rosa Lim vs. People of the Philippines, which reiterated the ruling in Vaca vs. Court of Appeals. In these two latter cases, the penalty of imprisonment imposed on the accused for violation of B.P. Blg. 22 was deleted by this Court. Only a fine was imposed. Petitioner insists that with the deletion of the prison sentence, the offense no longer involves moral turpitude. We made no such pronouncement. This is what we said in Rosa Lim: In Vaca v. Court of Appeals, we held that in determining the penalty to be imposed for violation of B.P. Blg. 22, the philosophy underlying the Indeterminate Sentence Law applies. The philosophy is to redeem valuable human material, and to prevent unnecessary deprivation of personal liberty and economic usefulness with due regard to the protection of the social order. There we deleted the prison sentence imposed on petitioners. We imposed on them only a fine double the amount of the check issued. We considered the fact that petitioners
[24] [20]

[17]

insofar as it states that conviction under B.P. Blg.

brought the appeal, believing in good faith, that no violation of B.P. Blg. 22 was committed, otherwise, they would have sim ply accepted the judgment of the trial court and applied for probation to evade prison term. We do the same here. We believe such would best serve the ends of criminal justice. In fine, we find no grave abuse of discretion committed by respondent COMELEC in issuing the assailed Resolutions. WHEREFORE, the petition is DISMISSED. Costs against petitioner.

[G.R. No. 122250 & 122258. July 21, 1997]

EDGARDO C. NOLASCO vs. COMMISSION ON ELECTIONS PUNO, J.: First, we rewind the facts. The election for mayor of Meycauayan, Bulacan was held on May 8, 1995. The principal protagonists were petitioner Florentino P. Blanco and private respondent Eduardo A. Alarilla. Blanco received 29,753 votes, while Alarilla got 23,038 [1] votes. Edgardo Nolasco was elected Vice-Mayor with 37,240 votes. On May 9, 1995, Alarilla filed with the COMELEC a petition to disqualify Blanco. He alleged: x x x x x x xxx

4. Based on intelligence reports that respondent was maintaining his own `private army' at his aforesaid resident, P/Insp. R onaldo O. Lee of the Philippine National Police assigned with the Intelligence Command at Camp Crame, applied for and was granted search warrant no. 95147 by Branch 37 of the Regional Trial Court of Manila on 5 May 1995. A copy of the said search warrant is attached as Annex "A" hereof. 5. In compliance with said search warrant no. 95-147, an elite composite team of the PNP Intelligence Command, Criminal Investigation Service (CIS), and Bulacan Provincial Command, backed up by the Philippine National Police Special Action Force, accompanied by mediamen who witnessed and recorded the search by video and still cameras, raided the house of respondent Florentino Blanco at his stated address at Bancal, Meycauayan, Bulacan. 6. Enclosed as Annex "A-1" is a video tape taken of the proceedings during the raid. 7. The composite team was able to enter the said premises of respondent Florentino Blanco where they conducted a search of the subject firearms and ammunition. 8. The search resulted in the arrest of six (6) men who were found carrying various high powered firearms without any license or authority to use or possess such long arms. These persons composing respondent's `private army,' and the unlicensed firearms are as follows: A. Virgilio Luna y Valderama 1. PYTHOM (sic) Cal. 347 SN 26946 with six (6) Rounds of Ammo. 2. INGRAM M10 Cal. 45 MP with Suppressor SN: 45457 with two (2) Mags and 54 Rounds of Ammo. B. Raymundo Bahala y Pon 1. HKMP5 Sn. C334644 with two (2) Mags and 47 Rounds of Ammo. C.Roberto Santos y Sacris 1. Smith and Wesson 357 Magnum Sn: 522218 with six (6) Rounds of Ammo. D. Melchor Cabanero y Oreil 1. Armscor 12 Gauge with three (3) Rounds of Ammo. E. Edgardo Orteza y Asuncion 1. Paltik Cal. 38 Rev with six (6) Rounds of Ammo.

F. Francisco Libari y Calimag 1. Paltik Cal. 38 SN: 36869 Copies of the inventory receipts are hereto attached as Annexes "B" to "B-5" hereof. 9. During the search, members of the composite team saw through a large clear glass window, respondent's Galil assault rifle on a sofa inside a closed room of the subject premises. 10. Not allowed entry thereto by respondent and his wife, the members of the composite police-military team applied for the issuance of a second search warrant (Annex "B-6") so that they could enter the said room to seize the said firearm. 11. While waiting for the issuance of the second search warrant, respondent's wife and respondent's brother, Mariano Blanco, claiming to be the campaign manager of respondent in the Nationalist People's Coalition Party, asked permission to enter the locked room so they could withdraw money in a vault inside the locked room to pay their watchers, and the teachers of Meycauayan in the 8 May 1995 elections. 12. For reasons not known to petitioner, Mrs. Florentino Blanco and Mariano Blanco, were allowed to withdraw ten (10) large plastic bags from the vault. 13. When the said PNP composite team examined the ten (10) black plastic bags, they found out that each bag contained ten (10) shoe boxes. Each shoe box when examined contained 200 pay envelopes, and each pay envelope when opened contained the amount of P1,000.00. When questioned, respondent's brother Mariano Blanco and respondent's wife, admitted to the raiding team that the total amount of money in the ten (10) plastic bags is P10,000,000.00. 14. The labels found in the envelope shows that the money were intended as respondent's bribe money to the teachers of Meycauayan. Attached as Annex "C" is the cover of one of the shoe boxes containing the inscription that it is intended to the teachers of Brgy. Lawa, Meycauayan, Bulacan. 15. On election day 8 May 1995, respondent perpetrated the most massive vote-buying activity ever in the history of Meycauayan politics. Attached as Annex "D" is the envelope where this P10,000,000.00 was placed in 100 peso denominations totalling one thousand pesos per envelope with the inscription `VOTE!!! TINOY.' This massive vote-buying activity was engineered by the respondent through his organization called `MTB' or `MOVEMENT FOR TINOY BLANCO VOLUNTEERS.' The chairman of this movement is respondent's brother, Mariano P. Blanco, who admitted to the police during the raid that these money were for the teachers and watchers of Meycauayan, Bulacan. Attached as Annex "E" hereof is an MTB ID issued to one Armando Bulan of Precinct 77-A, Brgy. Jasmin, Bancal, Meycauayan, Bulacan. You will note that the ID is perforated in the middle. The purpose is for the voter to tear the office copy and return it to respondent's headquarters to receive the balance of the P500.00 of the bribe money after voting for respondent during the elections. The voter will initially be given a down-payment of P500.00. 16. This massive vote-buying was also perpetrated by respondent thru the familiar use of flying voters. Attached as Annex "F" hereof is a copy of the Police Blotter dated 8 May 1995 showing that six (6) flying voters were caught in different precincts of Meycauayan, Bulacan, who admitted after being caught and arrested that they were paid P200.00 to P300.00 by respondent and his followers, to vote for other voters in the voter's list. 17. Not satisfied, and with his overflowing supply of money, respondent used another scheme as follows. Respondent's paid voter will identify his target from the list of voter and will impersonate said voter in the list and falsify his signature. Attached as Annex "G" hereof is the Minutes of Voting and Counting of Votes in Precinct No. 26, Brgy. Calvario, Meycauayan, Bulacan. Annex "G-1" is the statement of one Ma. Luisa de los Reyes Cruz stating that when she went to her precinct to vote, her name was already voted upon by another person. This entry was noted by Leticia T. Villanco, Poll Chairman; Estelita Artajo, - Poll Clerk; and Nelson John Nito - Poll Member. 18. Earlier before the election, respondent used his tremendous money to get in the good graces of the local Comelec Registrar, who was replaced by this Office upon the petition of the people of Meycauayan. Attached as Annex "H" hereof is an article in the 3 May 1995 issue of Abante entitled `1 M Suhol sa Comelec Registrar.' 19. The second search warrant on respondent's residence yielded to more firearms and thousands of rounds of ammunition. These guns were used by respondent to terrorize the population and make the people afraid to complain against respondent's massive vote buying and cheating in today's elections. Respondent's bribery of the teachers ensured the implementation of his vote-buying ballot box switching, impersonations, and other cheating schemes. Attached as Annexes `I-1' to I-2' are the pertinent Receipts of the guns and ammunitions seized from respondent. Attached as Annex "J" is a Certification to the same effect.

20. The above acts committed by respondent are clear grounds for disqualification under Sec. 68 of the Omnibus Election Code for giving money to influence, induce or corrupt the voters or public officials performing election functions; for committing acts of terrorism to enhance his candidacy; and for spending in his election campaign an amount in excess of that allowed by the Election Code. There are only 97,000 registered voters in Meycauayan versus respondent's expenses of at least P10,000,000.00 as admitted above. (Emphasis supplied). On May 15, 1995, Alarilla filed a Very Urgent Ex Parte Motion to Suspend Proclamation. The COMELEC (First Division) granted the motion after finding that there was a "probable commission of election offenses which are grounds for disqualification pursuant to the provisions of section 68 of the Omnibus Election Code (BP 881), and the evidence in support of disqualification is strong." It directed the Municipal Board of Canvassers "to complete the canvassing of election returns of the municipality of Meycauayan, but to suspend proclamation of respondent Florentino P. Blanco should he obtain the winning number of votes for the position of Mayor of Meycauayan, Bulacan until such time when the petitions for disqualification against him shall have been resolved." On May 25, 1995, Blanco filed a Motion to Lift or Set Aside the Order suspending his proclamation. On May 29, 1995, he filed his Answer to the petition to disqualify him. On May 30, 1995, the COMELEC (First Division) heard the petition to disqualify Blanco. The parties thereafter submitted their position [2] papers. Blanco even replied to the position paper of Alarilla on June 9, 1995. On August 15, 1995, the COMELEC (First Division) disqualified Blanco on the ground of vote-buying, viz.: x x x x x x xxx
[3]

"WHEREFORE, premises considered, the Commission (First Division) RESOLVES to DISQUALIFY Respondent Florentino P. Blanco as a candidate for the Office of Mayor of Meycauayan, Bulacan in the May 8, 1995 elections for having violated Section 261 (a) of the Omnibus Election Code. The Order suspending the proclamation of herein Respondent is now made PERMANENT. The Municipal Board of Canvassers of Meycauayan, Bulacan shall immediately reconvene and, on the basis of the completed canvass of the election returns, determine the winner out of the remaining qualified candidates who shall be immediately proclaimed. SO ORDERED." Blanco moved for reconsideration on August 19, 1995 in the COMELEC en banc. Nolasco, as vice mayor, intervened in the [4] proceedings. He moved for reconsideration of that part of the resolution directing the Municipal Board of Canvassers to "immediately reconvene and, on the basis of the completed canvass of the election returns, determine the winner out of the remaining qualified candidates who shall be immediately proclaimed." He urged that as vice-mayor he should be declared mayor in the event Blanco was finally disqualified. The motions were heard on September 7, 1995. The parties were allowed to file their memoranda with right of reply. On October 23, 1995, the COMELEC en banc denied the motions for reconsideration. In this petition for certiorari,
[5]

Blanco contends: x x x x x x xxx

18. Respondent COMELEC En Banc committed grave abuse of discretion amounting to lack or excess of jurisdiction and acted arbitrarily in affirming en toto and adopting as its own the majority decision of the First Division in that: 18.1 It upheld the validity of the May 17, 1995 order suspending proclamation of Petitioner Blanco herein as the winning candidate for Mayor of Meycauayan without the benefit of any notice or hearing in gross and palpable violation of Blanco's constitutional right to due process of law. 18.2 It violated the provisions of COMELEC Res. No. 2050 as amended, prescribing the procedure for disposing of disqualification cases arising out of the prohibited acts mentioned in Sec. 68 of the Omnibus Election Code, which Resolution this Honorable Tribunal explicitly sanctioned in the case of Lozano vs. Yorac. Moreover, it (COMELEC) violated Blanco's right to equal protection of the laws by setting him apart from other respondents facing similar disqualification suits whose case were referred by COMELEC to the Law Department pursuant to Com. Res. No. 2050 and ordering their proclamation -- an act which evidently discriminated against Petitioner Blanco herein. 18.3 It decided Petitioner Blanco's disqualification case in a SUMMARY PROCEEDING in violation of law and the precedents which consistently hold that questions of VOTE-BUYING, terrorism and similar such acts should be resolve in a formal election protest where the issue of vote buying is subjected to a full-dress hearing instead of disposing of the issue in a summary proceeding; 18.4 It declared Petitioner Blanco as having been involved in a conspiracy to engage in VOTE-BUYING without that minimum quantum of proof required to establish a disputable presumption of vote-buying in gross and palpable violation of the provisions of Section 28, Rep. Act. 6646; 18.5 It ordered the proclamation of a SECOND PLACER as the duly elected Mayor of Meycauayan, Bulacan, in gross violation and utter disregard of the doctrine laid down by this Honorable Supreme Court in the case of LABO vs. COMELEC which was reiterated only recently in the case of Aquino vs. Syjuco. On the other hand, Nolasco contends in his petition for certiorari that he should be declared as Mayor in view of the disqualification of Blanco. He cites section 44 of R.A. No. 7160 otherwise known as the Local Government Code of 1991 and our decision in Labo vs. [7] COMELEC. We shall first resolve the Blanco petition.
[6]

Blanco was not denied due process when the COMELEC (First Division) suspended his proclamation as mayor pending determination of the petition for disqualification against him. Section 6 of R.A. No. 6646 and sections 4 and 5 of the Rule 25 of the Comelec Rules of Procedure merely require that evidence of guilt should be strong to justify the COMELEC in suspending a winning candidate's proclamation. It ought to be emphasized that the suspension order is provisional in nature and can be lifted when the evidence so warrants. It is akin to a temporary restraining order which a court can issue ex-parte under exigent circumstances. In any event, Blanco was given all the opportunity to prove that the evidence on his disqualification was not strong. On May 25, 1995, he filed a Motion to Lift or Set Aside the Order suspending his proclamation. On May 29, 1995, he filed his Answer to the petition to disqualify him. The COMELEC heard the petition. Blanco thereafter submitted his position paper and reply to Alarilla's position paper. The COMELEC considered the evidence of the parties and their arguments and thereafter affirmed his disqualification. The hoary rule is that due process does not mean prior hearing but only an opportunity to be heard. The COMELEC gave Blanco all the opportunity to be heard. [8] Petitions for disqualification are subject to summary hearings. Blanco also faults the COMELEC for departing from the procedure laid down in COMELEC Resolution 2050 as amended, in disqualification cases. The resolution pertinently provides: x x x x x x xxx

Where a similar complaint is filed after election but before proclamation of the respondent candidate the complaint shall, nevertheless, be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department. If, before proclamation, the Law Department makes a prima facie finding of guilt and the corresponding information has been filed with the appropriate trial court, the complainant may file a petition for suspension of the proclamation of the respondent with the court before which the criminal case is pending and the said court may order the suspension of the proclamation if the evidence of guilt is strong." It is alleged that the violation is fatal as it deprived Blanco of equal protection of our laws. We do not agree. It cannot be denied that the COMELEC has jurisdiction over proclamation and disqualification cases. Article IX-C, section 2 of the Constitution endows the COMELEC the all encompassing power to "enforce and administer all laws and regulations relative [9] to the conduct of an election x x x." We have long ruled that this broad power includes the power to cancel proclamations. Our laws are no less explicit on the matter. Section 68 of B.P. Blg. 881 (Omnibus Election Code) provides: "Sec. 68. Disqualifications. - Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for an elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the elections laws." Section 6 of R.A. No. 6646 likewise provides: "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." Despite these laws and existing jurisprudence, Blanco contends that COMELEC must follow the procedure in Resolution No. 2050 as amended. We hold that COMELEC cannot always be straitjacketed by this procedural rule. The COMELEC has explained that the resolution was passed to take care of the proliferation of disqualification cases at that time. It deemed it wise to delegate its authority to its Law Department as partial solution to the problem. The May 8, 1995 elections, however, did not result in a surfeit of disqualification cases which the COMELEC cannot handle. Hence, its decision to resolve the disqualification case of Blanco directly and without referring it to its Law Department is within its authority, a sound exercise of its discretion. The action of the COMELEC is in accord with Section 28 of R.A. No. 6646, viz: "x x x. "SEC. 28. Prosecution of Vote-Buying and Vote-selling. - The presentation of a complaint for violations of paragraph (a) or (b) of Section 261 of Batas Pambansa Blg. 881 supported by affidavits of complaining witness attesting to the offer or promise by or of the voter's acceptance of money or other consideration from the relatives, leaders or sympathizers of a candidate, shall be sufficient basis for an investigation to be immediately conducted by the Commission, directly or through its duly authorized legal officers under Section 68 or Section 265 of said Batas Pambansa Blg. 881. (emphasis supplied) "x x x." Indeed, even Commissioner Maambong who dissented from the majority ruling, clings to the view that "Resolution No. 2050 cannot [10] divest the Commission of its duty to resolve disqualification cases under the clear provision of section 6 of R.A. No. 6646." Clearly too, Blanco's contention that he was denied equal protection of the law is off-line. He was not the object of any invidious discrimination. COMELEC assumed direct jurisdiction over his disqualification case not to favor anybody but to discharge its constitutional duty of disposing the case in a fair and as fast a manner as possible.

Blanco also urges that COMELEC erred in using summary proceedings to resolve his disqualification case. Again, the COMELEC action is safely anchored on section 4 of its Rules of Procedure which expressly provides that petitions for disqualification "shall be heard summarily after due notice." Vote-buying has its criminal and electoral aspects. Its criminal aspect to determine the guilt or innocence of the accused cannot be the subject of summary hearing. However, its electoral aspect to ascertain whether the offender should be disqualified from office can be determined in an administrative proceeding that is summary in character. The next issue is whether there is substantial evidence to prove the vote buying activities of Blanco. The factual findings of the [11] COMELEC (First Division) are as follows: "x x x "Respondent argues that the claim of vote-buying has no factual basis because the affidavits and sworn statements admitted as evidence against him are products of hearsay; inadmissible because of the illegal searches; they violate the Rule of Res Inter Alios Acta and the offense of vote-buying requires consummation. We are not impressed. A studied reading of the affidavits [Respondent's affidavit is unsigned] attached to the Reply of the Respondent to the Position Paper of the Petitioner [Annexes 1, 2 and 3] would reveal that they are in the nature of general denials emanating from individuals closely associated or related to respondent Blanco. The same holds true with the affidavits attached to Respondent's Position Paper [Annexes 1, 2, 3 and 4]. Said affidavits were executed by Blanco's political leaders and private secretary. On the other hand, the affidavit of Romeo Burgos [Exhibit "E-1"] is rich in detail as to how the alleged vote-buying was conducted. Moreover, the same is corroborated by object evidence in the nature of MTB [Movement for Tinoy Blanco] cards which were in the possession of the affiants and allegedly used as a means to facilitate the vote-buying scheme. There are also admissions of certain individuals who received money to vote for Respondent [Annexes "E-2", "E-3", "E-4", "E-5", "E-6", "E-7", "E-8", "E-9" and "E-10"]. On the day of the elections, two individuals were apprehended for attempting to vote for Respondent when they allegedly are not registered voters of Meycauayan. A criminal complaint for violation of section 261 [2] of BP 881 was filed by P/Sr. Inspector Alfred S. Corpus on May 9, 1995 with the Municipal Trial Court of Bulacan. The same was docketed as Criminal Case 95-16996 [Exhibit F-2]. Again, similar pay envelopes with money inside them were found in the possession of the suspected flying voters. The incident was corroborated by Adriano Llorente in his affidavit narrating the same [Exhibit "F-1"]. Llorente, a poll watcher of Petitioner, was the one who accosted the two suspected flying voters when the latter attempted to vote despite failing to locate their names in the voter's list. From this rich backdrop of detail, We are disappointed by the general denial offered by Respondent. In People of the Philippines vs. Navarro, G.R. No. 96251, May 11, 1993, 222 SCRA 684, the Supreme Court noted that "Denial is the weakest defense' [page 692]. In People of the Philippines vs. Rolando Precioso, et al., G.R. No. 95890, May 12, 1993, 221 SCRA 1993, the Supreme Court observed that, `We have consistently ruled that denials if unsubstantiated by clear and convincing evidence are negative and self-serving evidence which deserves no weight in law and cannot be given greater evidentiary weight over the testimony of credible witnesses. Ergo, as between the positive declarations of the prosecution witness and the negative statements of the accused, the former deserves more credence." [page 754].' However, Respondent conveniently resorts to section 33, Rule 130 of the Revised Rules of Court which states that a declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included herein, may be given in evidence against him [affiants who executed Exhibits E-1 to E-10] but not against Respondent. There is no merit in this contention. The affiants are not the accused. Their participation in the herein case is in the nature of witnesses who have assumed the risk of being subsequently charged with violating Section 261 [1] of BP 881. In fact, their affidavits were sought by the Petitioner and not by any law enforcement agency. Even Respondent admits this finding when he filed his Reply to Petitioner's Position Paper and Motion to Refer for Preliminary Investigation and Filing of Information in Court against the Persons Who Executed Exhibits E-1 to E-10 for Having Admitted Commission of Election Offense. If they were the accused, why file the motion? Would not this be redundant if not irrelevant? xxx

Another telling blow is the unexplained money destined for the teachers. Why such a huge amount? Why should the Respondent, a mayoralty candidate, and according to his own admission, be giving money to teachers a day before the elections? What were the peso bills doing in pay envelopes with the inscription "VOTE!!! TINOY", and kept in shoe boxes with the word "Teachers" written on the covers thereof? There is also something wrong with the issuance of the aforementioned MTB cards when one considers the testimony of Burgos that more or less 50,000 of these cards, which is equivalent to more or less 52% of the 97,000 registered voters of Meycauayan, Bulacan, were printed by respondent; that there are only 443 precincts in Meycauayan; that under the law, a candidate is allowed only one watcher per polling place and canvassing area; and, finally, that there is no explanation at all by the respondent as to what these "watchers" did in order to get paid P300.00 each. xxx Respondent also avers that for an allegation of vote-buying to prosper, the act of giving must be consummated. Section 281 [a] of BP 881 states "any person who gives, offers, or promises money x x x." Section 28 of RA 6646 also states that "the giver, offeror, the promisor as well as the solicitor, recipient and conspirator referred to in paragraphs [a] and [b] of section 261 of Batas Pambansa Blg. 881 shall be liable as principals: x x x. While the giving must be consummated, the mere act of offering or promising something in consideration for someone's vote constitutes the offense of vote-buying. In the case at bar, the acts of offering and promising money in consideration for the votes of said affiants is sufficient for a finding of the commission of the offense of vote-buying." These factual findings were affirmed by the COMELEC en banc against the lone dissent of Commissioner Maambong. There is an attempt to discredit these findings. Immediately obvious in the effort is the resort to our technical rules of evidence. Again, our ingrained jurisprudence is that technical rules of evidence should not be rigorously applied in administrative proceedings especially where the law calls for the proceeding to be summary in character. More importantly, we cannot depart from the settled norm of reviewing decisions of the COMELEC, i.e., that "this Court cannot review the factual findings of the COMELEC absent a grave abuse of discretion and a showing [12] of arbitrariness in its decision, order or resolution." We now come to the petition of Nolasco that he should be declared as mayor in the event Blanco is finally disqualified. the plea. Section 44, Chapter 2 of the Local Government Code of 1991 (R.A. No. 7160) is unequivocal, thus: "x x x "SEC. 44. Permanent Vacancies in the Offices of the Governor, Vice Governor, Mayor, and Vice Mayor.- (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice governor or vice mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor, or vice mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice governor, mayor or vice mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein. (b) If a permanent vacancy occurs in the office of the punong barangay, the highest ranking sanggunian barangay member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the punong barangay. (c) A tie between or among the highest ranking sangguniang members shall be resolved by the drawing of lots. (d) The successors as defined herein shall serve only the unexpired terms of their predecessors. For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office. For purposes of succession as provided in this Chapter, ranking in the sanggunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each distribution the immediately preceding election." In the same vein, Article 83 of the Rules and Regulations Implementing, the Local Government Code of 1991 provides: "x x x. "ART. 83. Vacancies and Succession of Elective Local Officials.- (a) What constitutes permanent vacancy - A permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office. (b) Permanent vacancies in the offices of the governor, vice governor, mayor and vice mayor [13]

We sustain

(1) If a permanent vacancy occurs in the office of the governor or mayor, the vice governor or vice mayor concerned shall ipso facto become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor, or vice mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall ipso facto become the governor, vice governor, mayor or vice mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined in this Article." Our case law is now settled that in a mayoralty election, the candidate who obtained the second highest number of votes, in this case Alarilla, cannot be proclaimed winner in case the winning candidate is disqualified. Thus, we reiterated the rule in the fairly recent case of [14] Reyes v. COMELEC, viz: "x x x xxx xxx

"We likewise find no grave abuse of discretion on the part of the COMELEC in denying petitioner Julius O. Garcia's petition to be proclaimed mayor in view of the disqualification of Renato U. Reyes. "That the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified is now settled. The doctrinal instability caused by see-sawing rulings has since been removed. In the latest ruling on the question, this Court said: To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under the circumstances. "Garcia's plea that the votes cast for Reyes be invalidated is without merit. The votes cast for Reyes are presumed to have been cast in the belief that Reyes was qualified and for that reason can not be treated as stray, void, or meaningless. The subsequent finding that he is disqualified cannot retroact to the date of the elections so as to invalidate the votes cast for him." Consequently, respondent COMELEC committed grave abuse of discretion insofar as it failed to follow the above doctrine, a [15] descendant of our ruling in Labo v. COMELEC. A final word. The dispute at bar involves more than the mayoralty of the municipality of Meycauyan, Bulacan. It concerns the right of suffrage which is the bedrock of republicanism. Suffrage is the means by which our people express their sovereign judgment. Its free [16] exercise must be protected especially against the purchasing power of the peso. As we succinctly held in People v. San Juan, "each time the enfranchised citizen goes to the polls to assert this sovereign will, that abiding credo of republicanism is translated into living reality. If that will must remain undefiled at the starting level of its expression and application, every assumption must be indulged in and every guarantee adopted to assure the unmolested exercise of the citizen's free choice. For to impede, without authority valid in law, the free and orderly exercise of the right of suffrage, is to inflict the ultimate indignity on the democratic process." IN VIEW WHEREOF, the resolution of the respondent COMELEC en banc dated October 23, 1995 is affirmed with the modification that petitioner Edgardo C. Nolasco is adjudged as Mayor of Meycauyan, Bulacan in view of the disqualification of Florentino P. Blanco. No costs. SO ORDERED.

[G.R. No. 136587. August 30, 1999]ERNESTO BIBOT A. DOMINGO, JR., vs. COMMISSION ON ELECTIONS and BENJAMIN BENHUR D. ABALOS, JR., respondents.

Assailed in this special civil action for certiorari are the En Banc Resolution of the Commission on Elections (COMELEC), dated December [1] [2] 1, 1998, and the Resolution of the COMELEC First Division, dated July 2, 1998, in SPA No. 98-361, which dismissed, for lack of merit, the petition for disqualification filed against herein private respondent, the incumbent mayor of Mandaluyong City.In the May 11, 1998 elections, petitioner Ernesto Domingo, Jr. and private respondent Benjamin Abalos, Jr. were both mayoralty candidates of Mandaluyong City. After private respondents proclamation on May 17, 1998, petitioner filed the instant petition for disqualification, on the g round that, during the campaign period, private respondent prodded his father, then incumbent Mandaluyong City Mayor Benjamin Abalos, Sr., to give substantial allowances to public school teachers appointed as chairpersons and members of the Boards of Election Inspectors (BEIs) for Mandaluyong City.etitioners allegations obtain from an incident on April 14, 1998, wherein, in a Pasyal -Aral outing for Mandaluyong City public school teachers in Sariaya, Quezon, then Mayor Benjamin Abalos, Sr. announced that the teachers appointed to the BEIs will each be [3] given a hazard pay of P1,000.00 and food allowance of P500.00, in addition to the allowance of P1,500.00. In the petition for disqualification filed before the COMELEC First Division, petitioner charged that private respondents influence over his father on this matter was evident from the following declaration of father Abalos, Sr.:Your President [referring to Mr. Alfredo de Vera, President of the Federation of Mandaluyong Public School Teachers], together with Benhur, walang tigil yan kakapunta sa akin at not because he is my son siya ang [4] nakikipag-usap sa kanila and came up with a beautiful compromise. xxx As alleged by petitioner, the foregoing statement was revealing of how private respondent prodded his father, then Mayor Abalos, Sr., to award substantial allowances to the public school t eachers who will assume seats in the BEIs in the May 11, 1998 elections, as to influence them into voting for him and ensuring his victory.Mayor Abalos, Sr .s speech, as well, as other activities in the aforesaid Pasyal -Aral outing, were recorded on videotape per instructions of Mr. Perfecto Doroja, [5] an associate of petitioner. In addition to the videotape, petitioner also submitted photographs of a streamer, hung at the entrance of the [6] Tayabas Bay Beach Resort, Sariaya, Quezon, declaring Mayor Benjamin S. Abalos, Sr. as co-sponsor of the Pasyal-Aral, as well as

affidavits of three public school teachers who participated in the said activity. Petitioner alleges that private respondents act of prodding his father, then incumbent mayor Benjamin S. Abalos, Sr., to give substantial allowances to the Mandaluyong City public school teachers constitutes a violation of Section 68 of the Omnibus Election Code, the pertinent provisions of which read:Sec. 68. Disqualifications. Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; xxx shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. xxxIn dismissing the petition for disqualification for insufficiency of evidence and lack of merit, the COMELEC First Division admonished petitioner [8] and his counsel for attempting to mislead the COMELEC by making false and untruthful statements in his petition. On reconsideration, the COMELEC, En Banc, affirmed the findings and conclusions of its First Division.Before us, petitioner assails the Resolutions of public respondent COMELEC for being violative of his right to due process, and thus, issued with grave abuse of discretion. It is petitioners argument that the dismissal of his petition for disqualification on the ground of insufficiency of evidence was unfounded, considering that no hearing on the merits was conducted by public respondent on the matter.Petitioner next contends that grave abuse of discretion was likewise attendant in public respondents act of dismissing the petition for disqualification for insufficiency of evidence, despite the overwhelming pieces of evidence of petitioner, consisting of the video cassette, pictures and affidavits, which were not denied by private [9] respondent. Petitioner further decries the fact that private respondent presented no evidence to substantiate his defense, while all the pieces of evidence that he submitted in his petition for disqualification were strong enough to prove violation by private respondent of Section [10] 68 of the Omnibus Election Code. Before touching on the merits, we shall first resolve the procedural matters raised by private respondent; namely, forum-shopping and failure to file this petition on time.It is not disputed that, in addition to the petition for disqualification, petitioner [11] [12] also filed a criminal complaint and an election protest ex abundante cautelam with public respondent COMELEC. Private respondent contends that, inasmuch as the petition for disqualification and the complaint for election offense involve the same issues and charges, i.e., vote-buying, exerting undue influence on BEI members, petitioner should be held liable for forum-shopping.We rule to the contrary. Forumshopping exists when the petitioner files multiple petitions or complaints involving the same issues in two or more tribunals or [13] agencies. The issues in the two cases are different. The complaint for election offense is a criminal case which involves the ascertainment of the guilt or innocence of the accused candidate and, like any other criminal case, requires a conviction on proof beyond reasonable [14] doubt. A petition for disqualification, meanwhile, requires merely the determination of whether the respondent committed acts as to merit his disqualification from office, and is done through an administrative proceeding which is summary in character and requires only a clear [15] preponderance of evidence. Next, petitioner admits receiving a copy of the assailed COMELEC First Division Resolution on July 13, 1998. He also admits filing a motion for reconsideration of the said COMELEC First Division Resolution on July 20, 1998. A copy of the assailed COMELEC En Banc Resolution dated December 1, 1998 was received by petitioner on December 4, 1998. Under Section 3, Rule 64 of the Revised Rules of Court, petitions for certiorarifrom orders or rulings of the COMELECshall be filed within thirty (30) days from notice of the judgment or final order or resolution sought to be reviewed. The filing of a motion for new trial or reconsideration of the said judgment or final order or resolution xxx shall interrupt the period herein fixed. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of denial.

[7]

Section 4 of Rule 19 of the COMELEC Rules of Procedure likewise provides: Effect of motion for reconsideration on period to appeal . A motion to reconsider a decision, resolution, order or ruling when not pro-forma, suspends the running of the period to elevate the matter to the Supreme Court. Inasmuch as the filing of a motion for reconsideration interrupts the 30-day period within which to file a petition for certiorari with this Court, petitioner has effectively consumed seven days of the abovestated 30-day period when he filed his motion for reconsideration. Thus, as correctly pointed out by private respondent, when petitioner received a copy of the assailed COMELEC En Banc Resolution, he only had [16] 23 days from December 4, 1998, the date when he received the COMELEC En Banc Resolution, or until December 27, 1998 , to file the instant petition for certiorari. This petition was filed on January 4, 1999. In any event, whether the petition was filed on time or not, an examination of the records leaves us satisfied that public respondent COMELEC did not commit grave abuse of discretion in dismissing the petition for disqualification. First, on the issue of due process, we find no violation thereof when public respondent COMELEC decided to dismiss the petition for disqualification without hearing. Well-established is the rule that the essence of due process is simply an opportunity to be [17] [18] [19] heard. In Zaldivar vs. Sandiganbayan , cited in the recent case of Bautista vs. COMELEC , we held that the right to be heard does not only refer to the right to present verbal arguments in court. A party may also be heard through his pleadings. Where opportunity to be heard is accorded, either through oral arguments or pleadings, there is no denial of procedural due process. Furthermore, the filing by petitioner of a motion for reconsideration accorded him ample opportunity to dispute the findings of the COMELEC First Division, so that he was as fully heard as he might have been had oral arguments actually taken place. Deprivation of due [20] process cannot be successfully invoked where a party was given the chance to be heard in his motion for reconsideration. Next, petitioner re-asserts before us the sufficiency of his evidence to prove that private respondent influenced the Mandaluyong City public school teachers, through his father, Abalos, Sr., in the performance of their functions as members of the BEIs. Petitioners evidence fails to persuade. First, the affidavits of the three teachers who participated in the controversial Pasyal -Aral do not contain anything but the following bare declarations: (1) that they heard Abalos, Sr. promise that he will give hazard pay of P1,000.00 and food allowance of P500.00, in addition to the regular living allowance of P1,500.00, and (2) that, before the May 11, 1998 elections they each received P1,500.00, or half of the total allowances promised by Abalos, Sr. in his speech. Nothing in these affidavits suggests, let alone sets out, knowledge on any degree of participation of private respondent in the grant of these allowances. The name of private respondent was not even mentioned or alluded to by any of the three affiants. Petitioner also submitted photographs taken of the streamer at the entrance of the Tayabas Bay Beach Resort, welcoming the participants to the Pasyal-Aral and declaring the Mandaluyong City School Board and then mayor Abalos, Sr. as co -sponsors of the [21] affair. Since by law, the mayor is a co-chairman of the City School Board , we find nothing unusual in his having co-sponsored the said

event. We fail to see the connection between these pictures and the alleged influence wielded by private respondent on the public school teachers of Mandaluyong City. Yet it is upon the videotape recordings that petitioner lays much reliance on, in proving his case for disqualification. The recordings are supposed to document how former mayor Abalos, Sr. announced that his son, private respondent herein, prodded his father to release substantial allowances to teachers who will act as members of the BEIs. As found by the COMELEC First Division, the name uttered in the announcement was not Benhur, private respondents nickname and what petitioner alleged was uttered, but Lito Motivo, a name which [22] truly sounded unlike Benhur. Also, when the COMELEC, through its First Division, viewed the videotape submitted by petitioner, the speech of Mayor Abalos, Sr. was cut and so (they) also did not see and hear that part of Mayor Abalos, Sr.s speech allegedly uttere d by [23] him. In the Petition, petitioners counsel admitted that the assailed quotation in the petition for disqualification was based on an erroneous transcript of the speech which was prepared by somebody else, and which he in turn failed to verify for errors. However, he denies having intended to mislead the COMELEC with the inclusion of this statement, but instead submits that the word Benhur was derived from the succeeding pronouncement of Abalos, Sr., not because he is my son, which may in turn be inferred to refer to private re spondent, who was [24] a mayoralty candidate at the time. We find no grave abuse of discretion in the COMELECs finding that Abalos, Sr.s controversial statement, effectively reduced to this: Your President, together with Lito Motivo, walang tigil yan kakapunta sa akin at not because he is my son siya ang nakikipag-usap sa kanila and came up with a beautiful compromise. xxx was seriously insufficient and vague to prove violation of Section 68 of the Omnibus Election Code. The burden of proving that private respondent indirectly influenced the public school teachers of Mandaluyong City, through his father, Abalos, Sr., was a burden that petitioner failed to meet. Neither is this burden overcome by the argument that private respondent, for himself, had no evidence to rebut petitioners allegations, [25] since the burden of proving factual claims rests on the party raising them. Besides, it is not true that private respondent gave only denials and did not present any evidence to his defense, or to offer an explanation for his fathers actions, which were assailed as having been [26] influenced by him. Private respondent presented in evidence a certified true copy of Joint Circular No. 1, series of 1998, issued by the Department of Education, Culture and Sports, Department of Budget and Management and Department of Interior and Local Government, [27] which authorized the payment of allowances of public school teachers chargeable to local government funds. The Joint Circular provided the basis for private respondents argument that the disbursement of funds by then mayor Abalos, Sr. was valid as having been made pursuant to administrative circular, and was not an unlawful attempt made in conspiracy with private respondent to secure the latters victory in the elections. In fine, we find no grave abuse of discretion in the COMELECs decision to dismiss the petition for disqualification. The conclusion that petitioners evidence is insufficient to support the charge of violation of Section 68 of the Omnibus Election Code was arriv ed at only after a careful scrutiny of the evidence at hand, especially of the videotapes of petitioner. This is clearly evident from the discussion of the COMELEC First Division, in the Resolution dated July 2, 1998, which quoted extensively from the pleadings and evidence of petitioners, and provided adequate explanation for why it considered petitioners evidence insufficient and unconvincing. Clearly, where there is no proof of grave abuse of discretion, arbitrariness, fraud or error of law in the questioned Resolutions, the Court [28] may not review the factual findings of COMELEC, nor substitute its own findings on the sufficiency of evidence. Finally, the foregoing conclusion is without prejudice to the election protest and election offense cases involving the same parties pending with public respondent COMELEC. WHEREFORE, the petition is DISMISSED. The assailed COMELEC Resolutions dated July 2, 1998 and December 1, 1998, dismissing the petition for insufficiency of evidence and lack of merit, and affirming the proclamation of private respondent Benjamin Abalos, Jr. as duly elected mayor of Mandaluyong City, are hereby AFFIRMED. No costs.

[G.R. No. 135716. Setember 23, 1999]FERDINAND TRINIDD, petitioner, vs. COMMISSION ON ELECTIONS D E C I S I O NYNARESSANTIAGO, J.:

The instant Petition for Certiorari questions the June 22, 1998 Resolution of the Commission on Elections (hereinafter referred to as COMELEC) in SPA No. 95-213, disqualifying petitioner as a candidate for Mayor of Iguig, Cagayan, in the May 8, 1995 elections. It also [2] questions the October 13, 1998 COMELEC Resolution which not only denied petitioners Motion for Reconsideration, but also annulled his proclamation as elected Mayor in the May 11, 1998 elections. This case has been filed before this Court when the Petition for Disqualification of private respondent (SPA No. 95-213) was dismissed [3] by the COMELEC. Acting on the Petition for Certiorari of private respondent, this court, in Sunga v. Commission on Elections, ordered the COMELEC to reinstate SPA No. 95-213 and act thereon. The facts of the case, as found in Sunga v. Commission on Elections, supra, are as follows: Petitioner (herein private respondent) Manuel C. Sunga was one of the candidates for the position of Mayor in the Municipali ty of Iguig, Province of Cagayan, in the May 8, 1995 elections. Private respondent (herein petitioner) Ferdinand B. Trinidad, then incumbent mayor, was a candidate for re-election in the same municipality.

[1]

On 22 April 1995, Sunga filed with the COMELEC a letter-complaint for disqualification against Trinidad, accusing him of using three (3) local government vehicles in his campaign, in violation of Section 261, par. (o), Art. XXII, of BP Blg. 881 (Omnibus Election Code, as amended). On 7 May 1995, Sunga filed another letter-complaint with the COMELEC charging Trinidad this time with violation of Sec. 261, par. (e) (referring to threats, intimidation, terrorism or other forms of coercion) of the Omnibus Election Code, in addition to the earlier violation imputed to him in the first letter-complaint. This was followed by an Amended Petition for disqualification consolidating the charges in the two (2) letters-complaint, including vote buying, and providing more specific details of the violations committed by Trinidad. The case was docketed as SPA No. 95-213. In a Minute Resolution dated 25 May 1995, the COMELEC 2nd Division referred the complaint to its Law Department for investigation. Hearings were held wherein Sunga adduced evidence to prove his accusations. Trinidad, on the other hand, opted not to submit any evidence at all. Meanwhile, the election results showed that Trinidad garnered the highest number of votes, while Sunga trailed second. On 10 May 1995 Sunga moved for the suspension of the proclamation of Trinidad. However, notwithstanding the motion, Trinidad was proclaimed the elected mayor, prompting Sunga to file another motion to suspend the effects of the proclamation. Both motions were not acted upon by the COMELEC 2nd Division. On 28 June 1995 the COMELEC Law Department submitted its Report to the COMELEC En Banc recommending that Trinidad be charged in court for violation of the following penal provisions of the Omnibus Election Code: (a) Sec. 261, par. (a), on vote buying; (b) Sec. 261, par. (e), on threats, intimidation, terrorism or other forms of coercion; and, (c) Sec. 261, par. (o), on use of any equipment, vehicle owned by the government or any of its political subdivisions. The Law Department likewise recommended to recall and revoke the proclamation of Ferdinand D. Trinidad as the duly elected Mayor of Iguig, Cagayan; proclaim Manuel C. Sunga as the duly elected Mayor, and, direct Sunga to take his oath and assume the duties and functions of the office. The COMELEC En Banc approved the findings of the Law Department and directed the filing of the corresponding informations in the Regional Trial Court against Trinidad. Accordingly, four (4) informations for various election offenses were filed in the Regional Trial Court of Tuguegarao, Cagayan. The disqualification case, on the other hand, was referred to the COMELEC 2nd Division for hearing. On 2 May 1996 Sunga filed a Second Urgent Motion to Suspend the Effects and Annul the Proclamation with Urgent Motion for Early Resolution of the Petition. But in its 17 May 1996 Resolution, the COMELEC 2nd Division dismissed the petition for disqualification, x x x. His motion for reconsideration having been denied by the COMELEC En Banc, Sunga filed the instant petition contending that the COMELEC committed grave abuse of discretion in dismissing the petition for disqualification x x x. As we have mentioned, above, private respondents Petition with this Court was granted and COMELEC was ordered to reinstate S PA [4] No. 95-213 and hear the same. Finally, on June 22, 1998, the COMELEC 1st Division (former 2nd Division) promulgated the first questioned Resolution disqualifying [5] [6] petitioner as a candidate in the May 8, 1995 elections. Petitioner filed a Motion for Reconsideration, claiming denial of due [7] process. Private respondent filed his Opposition to the Motion, at the same time moving for the cancellation of petitioners proclama tion as elected Mayor in the 1998 elections and praying that he be proclaimed Mayor instead. On October 13, 1998, the COMELEC En Banc denied petitioners Motion for Reconsideration and also annulled his proclamation as [8] duly elected Mayor of Iguig, Cagayan in the May 11, 1998 elections. Private respondents motion to be declared Mayor was, however, denied. Commissioner Teresita Dy-Liacco Flores rendered a dissenting opinion insofar as the Resolution annulled the proclamation of petitioner as Mayor in the May 11, 1998 elections, which she found to be bereft of any legal basis. Petitioner alleges that the questioned Resolutions were promulgated without any hearing conducted and without his evidence having been considered by the COMELEC, in violation of his right to due process. He also contends that the portion of the October 13, 1998 Resolution annulling his proclamation as Mayor in the May 11, 1998 elections was rendered without prior notice and hearing and that he was once more effectively denied due process. Petitioner also adopts the stand of Commissioner Dy-Liacco Flores that his disqualification, if any, under SPA No. 95-213 cannot extend beyond the three-year term to which he was elected on May 8, 1995, in relation to which the corresponding Petition for his disqualification was lodged. In his Comment, private respondent assails the arguments raised in the Petition and prays that he be proclaimed as the elected Mayor [10] in the 1998 elections. Petitioner filed a Reply to private respondents Comment on February 24, 1999. Meanwhile, on February 25, 1999, [11] the criminal cases filed against the petitioner with the Regional Trial Court of Tuguegarao, Cagayan were dismissed. On March 8, 1999, [12] the Solicitor General filed a Comment for the COMELEC, reiterating the argument that the COMELEC is empowered to disqualify petitioner from continuing to hold public office and at the same time, barring private respondents moves to be proclaimed el ected in the 1998 elections. Respective Memoranda were filed by both parties. The issues before us may be summarized as follows: 1. Was petitioner deprived of due process in the proceedings before the COMELEC insofar as his disqualification under the May 8, 1995 elections was concerned? 2. Was petitioner deprived of due process in the proceedings before the COMELEC insofar as his disqualification under the May 11, 1998 elections was concerned? 3. May petitioners proclamation as Mayor under the May 11, 1998 elections be cancelled on account of the disqualification case filed against him during the May 8, 1995 elections?
[9]

4. May private respondent, as the candidate receiving the second highest number of votes, be proclaimed as Mayor in the event of petitioners disqualification? The Commission on Elections is the agency vested with exclusive jurisdiction over election contests involving regional, provincial and city officials, as well as appellate jurisdiction over election contests involving elective municipal and barangay officials. Unless the [13] Commission is shown to have committed a grave abuse of discretion, its decision and rulings will not be interfered with by this Court. Guided by this doctrine, we find that no violation of due process has attached to the COMELECs June 22, 1998 Resolution. Petitioner complains that while the COMELEC reinstated SPA No. 95-213, it conducted no hearing and private respondent presented [14] [15] no evidence. Yet, this does not equate to a denial of due process. As explained in Paat v. Court of Appeals -x x x. Due process does not necessarily mean or require a hearing, but simply an opportunity or right to be heard (Pepsi Cola Distributors of the Phil. V. NLRC, G.R. No. 100686, August 15, 1995). One may be heard, not solely by verbal presentation but also, and perhaps many times more creditably and predictable than oral argument, through pleadings (Concerned Officials of MWSS v. Vasquez, G.R. No. 109113, January 25, 1995). 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 (Ibid.) Indeed, deprivation of due process cannot be successfully invoked where a party was given a chance to be heard on his motion for reconsideration (Rodriguez v. Project 6 Market Service Cooperative, G.R. No. 79968, August 23, 1995), as in the instant case, when private respondents were undisputedly given the opportunity to present their side when they filed a letter of reconsideration dated June 28, 1989 which was, however, denied in an order of July 12, 1989 of Executive Director Baggayan. In Navarro III vs. Damasco (G.R. No. 101875, July 14, 1995), we ruled that: The essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, a n opportunity to explain ones side or an opportunity to seek a reconsideration of the action or ruling complained of. A formal or trial type hearing is not at all times and in all instances essential. The requirements are satisfied when the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. What is frowned upon is the absolute lack of notice or hearing. In the case at bar, petitioner was able to file an Answer with Counter Petition and Motion to Dismiss. He was also able to submit his counter-affidavit and sworn statements of forty-eight (48) witnesses. While he complains that these were not considered by the Hearing Officer, he, himself, admits that the COMELEC did not rely on the findings of the Hearing Officer but referred the case to its Second Division. Thus, by the time the Second Division reviewed his case, petitioners evidence were already in place . Moreover, petitioner was also given a chance to explain his arguments further in the Motion for Reconsideration which he filed before the COMELEC. Clearly, in the light of the ruling in Paat, no deprivation of due process was committed. Considering that petitioner was afforded an opportunity to be heard, [17] through his pleadings, there is really no denial of procedural due process. Being interrelated, we shall discuss the second and third issues together. We note that petitioners term as Mayor under the May 8, 1995 elections expired on June 30, 1998. Thus, when the first questioned Resolution was issued by COMELEC on June 22, 1998, petitioner was still serving his term. However, by the time the Motion for Reconsideration of petitioner was filed on July 3, 1998, the case had already become moot and academic as his term had already expired. So, too, the second questioned Resolution which was issued on October 13, 1998, came at a time when the issue of the case had already been rendered moot and academic by the expiration of petitioners challenged term of office. In Malaluan v. Commission on Elections, this Court clearly pronounced that expiration of the challenged term of office renders the corresponding petition moot and academic. Thus: It is significant to note that the term of office of the local officials elected in the May, 1992 elections expired on June 30, 1995. This petition, thus, has become moot and academic insofar as it concerns petitioners right to the mayora lty seat in his municipality (Amatong v. COMELEC, G.R. No. 71003, April 28, 1988, En Banc, Minute Resolution; Artano v. Arcillas, G.R. No. 76823, April 26, 1988, En Banc, Minute Resolution) because expiration of the term of office contested in the election protest has the effect of rendering the same moot and academic (Atienza v. Commission on Elections, 239 SCRA 298; Abeja v. Tanada, 236 SCRA 60; Yorac v. Magalona, 3 SCRA 76). When the appeal from a decision in an election case has already become moot, the case being an election protest involving the office of the mayor the term of which had expired, the appeal is dismissible on that ground, unless the rendering of a decision on the merits would be of practical value (Yorac v. Magalona, supra). This rule we established in the case of Yorac v. Magalona which was dismissed because it had been mooted by the expiration of the term of office of the Municipal Mayor of Saravia, Negros Occidental. x x x. (underscoring, ours) With the complaint for disqualification of private respondent rendered moot and academic by the expiration of petitioners term of office therein contested, COMELEC acted with grave abuse of discretion in proceeding to disqualify petitioner from his reelected term of office in its second questioned Resolution on the ground that it comes as a matter of course after his disqualification in SPA No. 95 -213 promulgated after the 1998 election. While it is true that the first questioned Resolution was issued eight (8) days before the term of petitioner as Mayor [20] expired, said Resolution had not yet attained finality and could not effectively be held to have removed petitioner from his office. Indeed, removal cannot extend beyond the term during which the alleged misconduct was committed. If a public official is not removed before his [21] term of office expires, he can no longer be removed if he is thereafter reelected for another term. In this regard, therefore, we agree with the dissenting opinion of Commissioner Teresita Dy-Liacco Flores in the second questioned [22] Resolution that petitioners disqualification un der SPA No. 95-213 cannot extend beyond the term to which he was elected in 1995. Yet another ground to reverse the COMELECs annulment of petitioners proclama tion under the 1998 elections is the undeniable fact that petitioner was not accorded due process insofar as this issue is concerned. To be sure, this was not part of the first questioned Resolution which only touched on the matter raised in the complaint the May 8, 1995 elections. Private respondent merely prayed for the annulment of petitioners proclamation as winner in the 1998 elections in his Opposition to the Motion for Reconsideration. It was with grave
[19] [18] [16]

abuse of discretion, then, that the COMEL EC went on to annul petitioners proclamation as winner of the 1998 elections without any prior [23] notice or hearing on the matter. As per the Certificate of Canvass, petitioner obtained 5,920 votes as against the 1,727 votes obtained by private respondent and 15 votes garnered by the third mayoral candidate, Johnny R. Banatao. This gives petitioner a high 77.26% of the votes cast. There is no doubt, therefore, that petitioner received his municipalitys clear mandate. This, despite the disqualification case filed against him by private respondent. This further lends support to our decision to bar his disqualification insofar as the May 11, 1998 elections is concerned. Indeed, in election cases, it is fundamental that the peoples will be at all times upheld. As eloquently stressed in Frivaldo v. Commission on [25] Elections -This Court has time and again liberally and equitably construed the electoral laws of our country to give fullest effect to the manifest will of our people, for in case of doubt, political laws must be interpreted to give life and spirit to the popular mandate freely expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot stand in the way of the sovereign will. Consistently, we have held: x x x (L)aws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections (Benito v. Commission on Elections, 235 SC RA 436, 442 [August 17, 1994]). Finally, we see no error in the COMELECs rejection of private respondents move to be declared as Mayor on account of petitioners disqualification. To begin with, the issue had been rendered moot and academic by the exp iration of petitioners challenged term of office. Second, even in law and jurisprudence, private respondent cannot claim any right to the office. As held by the COMELEC, the succession to the office of the mayor shall be in accordance with the provisions of the Local Government Code which, in turn, provides that [26] [27] the vice mayor concerned shall become the mayor. Also, in Nolasco v. Commission on Elections, citing Reyes v. Commission on [28] Elections, we already rejected, once and for all, the position that the candidate who obtains the second highest number of votes may be proclaimed the winner in the event of disqualification or failure of the candidate with the highest number of votes to hold office. This court ratiocinated thus That the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified is now settled (Frivaldo v. COMELEC, 174 SCRA 245 [1989]; Labo, Jr. v. COMELEC, 176 SCRA 1 [1989]; Abella v. COMELEC, 201 SCRA 253 [1991]; Labo, Jr. v. COMELEC, 211 SCRA 297 [1992]; Benito v. COMELEC, 235 SCRA 436 [1994]). The doctrinal instability caused by see-sawing rulings (Compare Topacio v. Paredes, 23 Phil. 238 [1912] with Ticson v. COMELEC, 103 SCRA 687 [1981]; Geronimo v. Ramos, 136 SCRA 435 [1985] with Santos v. COMELEC, 137 SCRA 740 [1985]) has since been removed. In the latest ruling (Aquino v. COMELEC, G.R. No. 120265, September 18, 1995) on the question, this Court said: To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under the circumstances. Private respondent claims that there are compelling reasons to depart from this doctrine. He argues that since the disqualification case filed against the petitioner for the 1995 elections has been rendered moot and academic, it is with the 1998 elections that its impact must be felt. He also claims that justice should be given him as victim of petitioners dilatory tactics. We are not persuaded. On the other hand, the fact that despite the disqualification case filed against petitioner relating to the 1995 elections, he still won the mandate of the people for the 1998 elections, leads us to believe that the electorate truly chose petitioner and repudiated private respondent. To allow private respondent, a defeated and repudiated candidate, to take over the mayoralty despite his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine the importance and meaning of [29] democracy and the peoples right to elect officials of their choice. Therefore, the Resolution of the COMELEC dated October 13, 1998 which annulled petitioners proclamation as Mayor of Iguig, Cagayan in the May 11, 1998 elections should be set aside. On the other hand, the petition filed before the COMELEC against petitioner for election offenses committed during the May 1995 elections should be dismissed for being moot and academic, the term of office to which petitioner was elected having already expired. WHEREFORE, the petition is partly GRANTED. The Resolution of the COMELEC, dated October 13, 1998 is SET ASIDE insofar as it annuls the proclamation of petitioner as winner in the May 11, 1998 elections. Insofar as the May 8, 1995 elections is concerned, we find the issues related thereto rendered moot and academic by expiration of the term of office challenged and, accordingly, DISMISS the petition lodged in connection therewith. No costs. Republic of the Philippines
[24]

JOY CHRISMA B. LUNA, Petitioner, vs. COMMISSION ON ELECTIONS, The Case Before this Court is a petition for certiorari with prayer for the issuance of a temporary restraining order, writ of preliminary injunction or status quo order questioning the 4 June 2004 Resolution of the Commission on Elections (COMELEC) First Division and the 22 November
1

2004 Resolution of the COMELEC En Banc in SPA Case No. 04-306. The 4 June 2004 Resolution denied due course to the substitution of petitioner Joy Chrisma B. Luna (Luna) for Hans Roger Luna (Hans Roger) and declared the substitution invalid. The 22 November 2004 Resolution denied Lunas motion for reconsideration. The Facts On 15 January 2004, Luna filed her certificate of candidacy for the position of vice-mayor of Lagayan, Abra as a substitute for Hans Roger, who withdrew his certificate of candidacy on the same date. Ruperto Blanco, Election Officer of Lagayan, Abra removed the name of Hans Roger from the list of candidates and placed the name of Luna. On 20 April 2004, private respondents Tomas Layao, Solomon Lalugan III, Nelia Lazaga, Anthony Layao, Cipriano Lapez, Jr., Victoria Layao, Moderno Lapez, Rodrigo Parias, and Eugenio Caber Donato (private respondents) filed a petition for the cancellation of the certificate of candidacy or disqualification of Luna. Private respondents alleged that Luna made a false material representation in her certificate of candidacy because Luna is not a registered voter of Lagayan, Abra but a registered voter of Bangued, Abra. Private respondents also claimed that Lunas certificate of candidacy was not validly filed because the substitution by Luna for Hans Roger was invali d. Private respondents alleged that Hans Roger was only 20 years old on election day and, therefore, he was disqualified to run for vice-mayor and 2 cannot be substituted by Luna. 1vvphi1.nt The COMELECs Ruling In the 4 June 2004 Resolution, the COMELEC First Division granted the petition and denied due course to the substitution of Luna for Hans Roger. The COMELEC First Division ruled that, while Luna complied with the procedural requirements for substitution, Hans Roger was not a 3 valid candidate for vice-mayor. The COMELEC First Division pointed out that Hans Roger, being underage, did not file a valid certificate of candidacy and, thus, Hans Roger was not a valid candidate for vice-mayor who could be substituted by Luna. The COMELEC First Division also ruled that Luna was not a registered voter of Lagayan, Abra and that this was sufficient to disqualify Luna from running as vice-mayor. On 28 June 2004, Luna filed a motion for reconsideration with the COMELEC En Banc. Luna added that the 4 June 2004 Resolution was issued in violation of her right to due process because she was not given the opportunity to present evidence on her behalf with the COMELEC First Division. In the 22 November 2004 Resolution, the COMELEC En Banc denied the motion for reconsideration and affirmed with modification the 4 June 2004 Resolution. The COMELEC En Banc affirmed the finding that Hans Roger, being underage, may not be validly substituted by Luna. The COMELEC En Banc also ruled that Lunas right to due process was not violated because Luna was notified of the petition and was given the opportunity to be heard. However, the COMELEC En Banc ruled that Luna was a registered voter of Lagayan, Abra. Hence, this petition. In a Resolution dated 11 January 2005, we required the parties to maintain the status quo prevailing before the issuance of the assailed 4 COMELEC resolutions pending the resolution of this petition. The Issues Luna raised the following issues: 1. Whether the COMELEC committed grave abuse of discretion when it ruled that t here was no violation of Lunas right to due process; and 2. Whether the COMELEC committed grave abuse of discretion when it ruled that there was no valid substitution by Luna for Hans Roger. The Courts Ruling The petition is partly meritorious. Lunas Right to Due Process was not Violated Luna contends that her right to due process was violated because she was not given the opportunity to present her evidence before the COMELEC First Division. Under Rule 23 of the 1993 COMELEC Rules of Procedure, a petition to deny due course to or cancel a certificate of candidacy shall be heard summarily after due notice. The law mandates that the candidates must be notified of the petition against them and should be given the 5 opportunity to present evidence on their behalf. This is the essence of due process. In this case, the COMELEC En Banc stated that the records showed that three days after the petition was filed, the Provincial Election Supervisor, as hearing officer, with the assistance of the Philippine National Police Provincial Command, tried to personally serve a copy of the petition to Luna. But Luna refused to formally receive the petition. On 26 April 2004, the Office of the Provincial Election Supervisor sent the notice via registered mail and still Luna did not file an answer.

The Court finds that Lunas right to due process was not violated. The COMELEC notified Luna of the petition filed against he r and Luna was given the opportunity to present evidence on her behalf. This constitutes compliance with the requirements of due process. Substitution of Luna for Hans Roger was Valid Luna contends that Hans Roger filed a valid certificate of candidacy and, subsequently, upon Hans Rogers withdrawal of his certificate of candidacy, there was a valid substitution by Luna. On the other hand, the COMELEC ruled that Hans Roger, being under age, could not be considered to have filed a valid certificate of candidacy and, therefore, is not a valid candidate who could be substituted by Luna. When a candidate files his certificate of candidacy, the COMELEC has a ministerial duty to receive and acknowledge its receipt. Section 76 of the Omnibus Election Code (Election Code) provides: Sec. 76. Ministerial duty of receiving and acknowledging receipt .- The Commission, provincial election supervisor, election registrar or officer designated by the Commission or the board of election inspectors under the succeeding section shall have the ministerial duty to receive and acknowledge receipt of the certificate of candidacy. In this case, when Hans Roger filed his certificate of candidacy on 5 January 2004, the COMELEC had the ministerial duty to receive and acknowledge receipt of Hans Rogers certificate of candidacy. Thus, the COMELEC had the ministerial duty to give due course t o Hans 7 Rogers certificate of candidacy. On 15 January 2004, Hans Roger withdrew his certificate of candidacy. The Election Code allows a person who has filed a certificate of 8 candidacy to withdraw the same prior to the election by submitting a written declaration under oath. There is no provision of law which 9 prevents a candidate from withdrawing his certificate of candidacy before the election. On the same date, Luna filed her certificate of candidacy as substitute for Hans Roger. Section 77 of the Election Code prescribes the rules on substitution of an official candidate of a registered political party who dies, withdraws, or is disqualified for any cause after the last day for the filing of certificate of candidacy. Section 77 of the Election Code provides: Sec. 77. Candidates in case of death, disqualification or withdrawal of another. - If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of election day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission. Since Hans Roger withdrew his certificate of candidacy and the COMELEC found that Luna complied with all the procedural requirements 10 for a valid substitution, Luna can validly substitute for Hans Roger. The COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in declaring that Hans Roger, being under age, could not be considered to have filed a valid certificate of candidacy and, thus, could not be validly substituted by Luna. The COMELEC 11 may not, by itself, without the proper proceedings, deny due course to or cancel a certificate of candidacy filed in due form. In Sanchez v. 12 Del Rosario, the Court ruled that the question of eligibility or ineligibility of a candidate for non-age is beyond the usual and proper cognizance of the COMELEC. Section 74 of the Election Code provides that the certificate of candidacy shall state, among others, the date of birth of the person filing the 14 certificate. Section 78 of the Election Code provides that in case a person filing a certificate of candidacy has committed false material representation, a verified petition to deny due course to or cancel the certificate of candidacy of said person may be filed at any time not later than 25 days from the time of filing of the certificate of candidacy. If Hans Roger made a material misrepresentation as to his date of birth or age in his certificate of candidacy, his eligibility may only be impugned through a verified petition to deny due course to or cancel such certificate of candidacy under Section 78 of the Election Code. In this case, there was no petition to deny due course to or cancel the certificate of candidacy of Hans Roger. The COMELEC only declared that Hans Roger did not file a valid certificate of candidacy and, thus, was not a valid candidate in the petition to deny due course to or cancel Lunas certificate of candidacy. In effect, the COMELEC, without the proper proceedings, cancelled Hans Rogers certificate o f candidacy and declared the substitution by Luna invalid. It would have been different if there was a petition to deny due course to or cancel Hans Rogers certificate of candidacy. For if the COMELEC cancelled Hans Rogers certificate of candidacy after the proper proceedings, then he is no candidate at all and ther e can be no 15 substitution of a person whose certificate of candidacy has been cancelled and denied due course. However, Hans Rogers certificate of candidacy was never cancelled or denied due course by the COMELEC.
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Moreover, Hans Roger already withdrew his certificate of candidacy before the COMELEC declared that he was not a valid candidate. Therefore, unless Hans Rogers certificate of candidacy was denied due course or cancelled in accordance with Section 78 of t he Election Code, Hans Rogers certificate of candidacy was valid and he may be validly substituted by Luna. WHEREFORE, we PARTLY GRANT the petition. We AFFIRM the ruling of the COMELEC En Banc that there was no violation of petitioner Joy Chrisma B. Lunas right to due process. We SET ASIDE the ruling of the COMELECEn Banc that the substitution by petitioner Joy Chrisma B. Luna for Hans Roger Luna was invalid. Petitioner Joy Chrisma B. Luna validly substituted for Hans Roger Luna. SO ORDERED.

MAYOR BARBARA RUBY C. TALAGA, vs.COMMISSION ON ELECTIONS In focus in these consolidated special civil actions are the disqualification of a substitute who was proclaimed the winner of a mayoralty election; and the ascertainment of who should assume the office following the substitutes disqualification. The consolidated petitions for certiorari seek to annul and set aside the En Banc Resolution issued on May 20, 2011 in SPC No. 10-024 by the Commission on Elections (COMELEC), the dispositive portion of which states: WHEREFORE, judgment is hereby rendered: 1. REVERSING and SETTING ASIDE the January 11, 2011 Resolution of the Second Division; 2. GRANTING the petition in intervention of Roderick A. Alcala; 3. ANNULLING the election and proclamation of respondent Barbara C. Talaga as mayor of Lucena City and CANCELLING the Certificate of Canvass and Proclamation issued therefor; 4. Ordering respondent Barbara Ruby Talaga to cease and desist from discharging the functions of the Office of the Mayor; 5. In view of the permanent vacancy in the Office of the Mayor of Lucena City, the proclaimed Vice-Mayor is ORDERED to succeed as Mayor as provided under Section 44 of the Local Government Code; 6. DIRECTING the Clerk of Court of the Commission to furnish copies of this Resolution to the Office of the President of the Philippines, the Department of Interior and Local Government, the Department of Finance and the Secretary of the Sangguniang Panglunsod of Lucena City. Let the Department of Interior and Local Government and the Regional Election Director of Region IV of COMELEC implement this resolution. SO ORDERED. Antecedents On November 26, 2009 and December 1, 2009, Ramon Talaga (Ramon) and Philip M. Castillo (Castillo) respectively filed their certificates of 2 candidacy (CoCs) for the position of Mayor of Lucena City to be contested in the scheduled May 10, 2010 national and local elections. Ramon, the official candidate of the Lakas-Kampi-CMD, declared in his CoC that he was eligible for the office he was seeking to be elected to. Four days later, or on December 5, 2009, Castillo filed with the COMELEC a petition denominated as In the Matter of the Petition to Deny Due Course to or Cancel Certificate of Candidacy of Ramon Y. Talaga, Jr. as Mayor for Having Already Served Three (3) Consecutive Terms 4 as a City Mayor of Lucena, which was docketed as SPA 09-029 (DC). He alleged therein that Ramon, despite knowing that he had been elected and had served three consecutive terms as Mayor of Lucena City, still filed his CoC for Mayor of Lucena City in the May 10, 2010 national and local elections. The pertinent portions of Castillos petition follow: 1. Petitioner is of legal age, Filipino, married, and a resident of Barangay Mayao Crossing, Lucena City but may be served with summons and other processes of this Commission at the address of his counsel at 624 Aurora Blvd., Lucena City 4301;
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2. Respondent Ramon Y. Talaga, Jr. is likewise of legal age, married, and a resident of Barangay Ibabang Iyam, Lucena City and with postal address at the Office of the City Mayor, City Hall, Lucena City, where he may be served with summons and other processes of this Commission; 3. Petitioner, the incumbent city vice-mayor of Lucena having been elected during the 2007 local elections, is running for city mayor of Lucena under the Liberal party this coming 10 May 2010 local elections and has filed his certificate of candidacy for city mayor of Lucena; 4. Respondent was successively elected mayor of Lucena City in 2001, 2004, and 2007 local elections based on the records of the Commission on Elections of Lucena City and had fully served the aforesaid three (3) terms without any voluntary and involuntary interruption; 5. Except the preventive suspension imposed upon him from 13 October 2005 to 14 November 2005 and from 4 September 2009 to 30 October 2009 pursuant to Sandiganbayan 4th Division Resolution in Criminal Case No. 27738 dated 3 October 2005, the public service as city mayor of the respondent is continuous and uninterrupted under the existing laws and jurisprudence; 6. There is no law nor jurisprudence to justify the filing of the certificate of candidacy of the respondent, hence, such act is outrightly unconstitutional, illegal, and highly immoral; 7. Respondent, knowing well that he was elected for and had fully served three (3) consecutive terms as a city mayor of Lucena, he still filed his Certificate of Candidacy for City Mayor of Lucena for this coming 10 May 2010 national and local elections; 8. Under the Constitution and existing Election Laws, New Local Government Code of the Philippines, and jurisprudence the respondent is no longer entitled and is already disqualified to be a city mayor for the fourth consecutive term; 9. The filing of the respondent for the position of city mayor is highly improper, unlawful and is potentially injurious and prejudicial to taxpayers of the City of Lucena; and 10. It is most respectfully prayed by the petitioner that the respondent be declared disqualified and no longer entitled to run in public 5 office as city mayor of Lucena City based on the existing law and jurisprudence. The petition prayed for the following reliefs, to wit: WHEREFORE, premises considered, it is respectfully prayed that the Certificate of Candidacy filed by the respondent be denied due course to or cancel the same and that he be declared as a disqualified candidate under the existing Election Laws and by the provisions of the New 6 Local Government Code. (Emphasis supplied.) Ramon countered that that the Sandiganbayan had preventively suspended him from office during his second and third terms; and that the 7 three-term limit rule did not then apply to him pursuant to the prevailing jurisprudence to the effect that an involuntary separation from office amounted to an interruption of continuity of service for purposes of the application of the three-term limit rule. In the meantime, on December 23, 2009, the Court promulgated the ruling in Aldovino, Jr. v. Commission on Elections, holding that preventive suspension, being a mere temporary incapacity, was not a valid ground for avoiding the effect of the three-term limit rule. Thus, on December 30, 2009, Ramon filed in the COMELEC a Manifestation with Motion to Resolve, taking into account the intervening ruling in Aldovino. Relevant portions of his Manifestation with Motion to Resolve are quoted herein, viz: 4. When respondent filed his certificate of candidacy for the position of Mayor of Lucena City, the rule that where the sepa ration from office is caused by reasons beyond the control of the officer i.e. involuntary the service of term is deemed interrupted has not yet been overturned by the new ruling of the Supreme Court. As a matter of fact, the prevailing rule then of the Honorable Commission in [sic] respect of the three (3)-term limitation was its decision in the case of Aldovino, et al. vs. Asilo where it stated: "Thus, even if respondent was elected during the 2004 elections, which was supposedly his third and final term as city councilor, the same cannot be treated as a complete service or full term in office since the same was interrupted when he was suspended by the Sandiganbayan Fourth Division. And the respondent actually heeded the suspension order since he did not receive his salary during the period October 1631 and November 1-15 by reason of his actual suspension from office. And this was further bolstered by the fact that the DILG issued a Memorandum directing him, among others, to reassume his position." (Emphasis supplied.) 5. Clearly, there was no misrepresentation on the part of respondent as would constitute a ground for the denial of due course to and/or the cancellation of respondents certificate of candidacy at the time he filed the same. Petitioners ground for the denial of du e course to and/or the cancellation of respondents certificate of candidacy thus has no basis, in fact and in law, as there is no ground to warrant such relief under the Omnibus Election Code and/or its implementing laws. 6. Pursuant, however, to the new ruling of the Supreme Court in respect of the issue on the three (3)-term limitation, respondent acknowledges that he is now DISQUALIFIED to run for the position of Mayor of Lucena City having served three (3) (albeit interrupted) terms as Mayor of Lucena City prior to the filing of his certificate of candidacy for the 2010 elections.
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7. In view of the foregoing premises and new jurisprudence on the matter, respondent respectfully submits the present case for decision 9 declaring him as DISQUALIFIED to run for the position of Mayor of Lucena City. Notwithstanding his express recognition of his disqualification to run as Mayor of Lucena City in the May 10, 2010 national and local elections, Ramon did not withdraw his CoC. Acting on Ramons Manifestation with Motion to Resolve, the COMELEC First Division issued a Resolution on April 19, 2010, follows:
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disposing as

WHEREFORE, premises considered, the instant Petition is hereby GRANTED. Accordingly, Ramon Y. Talaga, Jr. is hereby declared DISQUALIFIED to run for Mayor of Lucena City for the 10 May 2010 National and Local Elections. SO ORDERED. Initially, Ramon filed his Verified Motion for Reconsideration against the April 19, 2010 Resolution of the COMELEC First Division. Later on, 12 however, he filed at 9:00 a.m. of May 4, 2010 an Ex-parte Manifestation of Withdrawal of the Pending Motion for Reconsideration. At 4:30 p.m. on the same date, Barbara Ruby filed her own CoC for Mayor of Lucena City in substitution of Ramon, attaching thereto the Certificate 13 of Nomination and Acceptance (CONA) issued by Lakas-Kampi-CMD, the party that had nominated Ramon. On May 5, 2010, the COMELEC En Banc, acting on Ramons Ex parte Manifestation of Withdrawal, declared the COMELEC First Divisions 14 Resolution dated April 19, 2010 final and executory. On election day on May 10, 2010, the name of Ramon remained printed on the ballots but the votes cast in his favor were counted in favor of Barbara Ruby as his substitute candidate, resulting in Barbara Ruby be ing ultimately credited with 44,099 votes as against Castillos 39,615 15 votes. Castillo promptly filed a petition in the City Board of Canvassers (CBOC) seekin g the suspension of Barbara Rubys proclamation.
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It was only on May 13, 2010 when the COMELEC En Banc, upon the recommendation of its Law Department, gave due course to Barbara 18 Rubys CoC and CONA through Resolution No. 8917, thereby including her in the certified list of candidates. Consequently, the CBOC 19 proclaimed Barbara Ruby as the newly-elected Mayor of Lucena City. On May 20, 2010, Castillo filed a Petition for Annulment of Proclamation with the COMELEC, docketed as SPC 10-024. He alleged that Barbara Ruby could not substitute Ramon because his CoC had been cancelled and denied due course; and Barbara Ruby could not be considered a candidate because the COMELEC En Banc had approved her substitution three days after the elections; hence, the votes cast for Ramon should be considered stray. In her Comment on the Petition for Annulment of Proclamation, Barbara Ruby maintained the validity of her substitution. She countered that the COMELEC En Banc did not deny due course to or cancel Ramons COC, despite a declaration of his disqualification, because ther e was no finding that he had committed misrepresentation, the ground for the denial of due course to or cancellation of his COC. She prayed that 22 with her valid substitution, Section 12 of Republic Act No. 9006 applied, based on which the votes cast for Ramon were properly counted in her favor. On July 26, 2010, Roderick Alcala (Alcala), the duly-elected Vice Mayor of Lucena City, sought to intervene, positing that he should assume the post of Mayor because Barbara Rubys substitution had been invalid and Castillo had clearly lost the elections. On January 11, 2011, the COMELEC Second Division dismissed Castillos petition and Alcalas petition -in-intervention,
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holding:

In the present case, Castillo was notified of Resolution 8917 on May 13, 2010 as it was the basis for the proclamation of Ruby on that date. He, however, failed to file any action within the prescribed period either in the Commission or the Supreme Court assailing the said resolution. Thus, the said resolution has become final and executory. It cannot anymore be altered or reversed. xxxx x x x. A close perusal of the petition filed by Castillo in SPA 10-029 (Dc) shows that it was actually for the disqualification of Ramon for having served three consecutive terms, which is a ground for his disqualification under the Constitution in relation to Section 4(b)3 of Resolution 8696. There was no mention therein that Ramon has committed material representation that would be a ground for the cancellation or denial of due course to the CoC of Ramon under Section 78 of the Omnibus Election Code. The First Division, in fact, treated the petition as one for disqualification as gleaned from the body of the resolution and its dispositive portion quoted above. This treatment of the First Division of the petition as one for disqualification only is affirmed by the fact that its members signed Resolution No. 8917 where it was clearly stated that the First Division only disqualified Ramon. Having been disqualified only, the doctrine laid down in Miranda v. Abaya is not applicable. Ramon was rightly substituted by Ruby. As such, the votes for Ramon cannot be considered as stray votes but should be counted in favor of Ruby since the substituted and the substitute carry the same surname Talaga, as provided in Section 12 of Republic Act No. 9006. xxxx

Moreover, there is no provision in the Omnibus Election Code or any election laws for that matter which requires that the substitution and the Certificate of Candidacy of the substitute should be approved and given due course first by the Commission or the Law Department before it can be considered as effective. All that Section 77 of the Omnibus Election Code as implemented by Section 13 of Resolution No. 8678 requires is that it should be filed with the proper office. The respondent is correct when she argued that in fact even the BEI can receive a CoC of a substitute candidate in case the cause for the substitution happened between the day before the election and mid-day of election day. Thus, even if the approval of the substitution was made after the election, the substitution became effective on the date of the filing of the CoC with the Certificate of Nomination and Acceptance. There being no irregularity in the substitution by Ruby of Ramon as candidate for mayor of Lucena City, the counting of the votes of Ramon in favor of Ruby is proper. The proclamation, thus, of Ruby as mayor elect of Lucena City is in order. Hence, we find no cogent reason to annul the proclamation of respondent Barbara Ruby C. Talaga as the duly elected Mayor of the City of Lucena after the elections conducted 25 on May 10, 2010. Acting on Castillo and Alcalas respective motions for reconsideration, the COMELEC En Banc issued the assailed Resolution da ted May 20, 26 2011 reversing the COMELEC Second Divisions ruling. Pointing out that: (a) Resolution No. 8917 did not attain finality for being issued without a hearing as a mere incident of the COMELECs ministerial duty to receive the COCs of substitute candidates; (b) Resolution No. 8917 was based on the wrong facts; and (c) Ramons disqualification was resolved with finality only on May 5, 2010, the COMELEC En Banc concluded that Barbara Ruby could not have properly substituted Ramon but had simply become an additional candidate who had filed her COC out of time; and held that Vice Mayor Alcala 27 should succeed to the position pursuant to Section 44 of the Local Government Code (LGC). Issues The core issue involves the validity of the substitution by Barbara Ruby as candidate for the position of Mayor of Lucena City in lieu of Ramon, her husband. Ancillary to the core issue is the determination of who among the contending parties should assume the contested elective position. Ruling The petitions lack merit. 1. Existence of a valid CoC is a condition sine qua non for a valid substitution The filing of a CoC within the period provided by law is a mandatory requirement for any person to be considered a candidate in a national or local election. This is clear from Section 73 of the Omnibus Election Code, to wit: Section 73. Certificate of candidacy No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein. Section 74 of the Omnibus Election Code specifies the contents of a COC, viz: Section 74. Contents of certificate of candidacy.The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge. x x x The evident purposes of the requirement for the filing of CoCs and in fixing the time limit for filing them are, namely: (a) to enable the voters to know, at least 60 days prior to the regular election, the candidates from among whom they are to make the choice; and (b) to avoid confusion and inconvenience in the tabulation of the votes cast. If the law does not confine to the duly-registered candidates the choice by the voters, there may be as many persons voted for as there are voters, and votes may be cast even for unknown or fictitious persons as a 28 29 mark to identify the votes in favor of a candidate for another office in the same election. Moreover, according to Sinaca v. Mula, the CoC is: x x x in the nature of a formal manifestation to the whole world of the candidates political creed or lack of political cree d. It is a statement of a person seeking to run for a public office certifying that he announces his candidacy for the office mentioned and that he is eligible for the office, the name of the political party to which he belongs, if he belongs to any, and his post-office address for all election purposes being as well stated.

Accordingly, a persons declaration of his intention to run for public office and his affirmation that he possesses the eligi bility for the position he seeks to assume, followed by the timely filing of such declaration, constitute a valid CoC that render the person making the declaration a valid or official candidate. There are two remedies available to prevent a candidate from running in an electoral race. One is through a petition for disqualification and the other through a petition to deny due course to or cancel a certificate of candidacy. The Court differentiated the two remedies in Fermin v. 30 Commission on Elections, thuswise: x x x A petition for disqualification, on the one hand, can be premised on Section 12 or 68 of the Omnibus Election Code, or Section 40 of the Local Government Code. On the other hand, a petition to deny due course to or cancel a CoC can only be grounded on a statement of a material representation in the said certificate that is false. The petitions also have different effects. While a person who is disqualified under Section 68 is merely prohibited to continue as a candidate, the person whose certificate is cancelled or denied due course under Section 78 31 is not treated as a candidate at all, as if he/she never filed a CoC. Inasmuch as the grounds for disqualification under Section 68 of the Omnibus Election Code (i.e., prohibited acts of candidates, and the fact of a candidates permanent residency in another country when that fact affects the residency requirement of a candidate) are separate and distinct from the grounds for the cancellation of or denying due course to a COC (i.e., nuisance candidates under Section 69 of the Omnibus Election Code; and material misrepresentation under Section 78 of the Omnibus Election Code), the Court has recognized in Miranda v. 32 Abaya that the following circumstances may result from the granting of the petitions, to wit: (1) A candidate may not be qualified to run for election but may have filed a valid CoC; (2) A candidate may not be qualified and at the same time may not have filed a valid CoC; and (3) A candidate may be qualified but his CoC may be denied due course or cancelled. In the event that a candidate is disqualified to run for a public office, or dies, or withdraws his CoC before the elections, Section 77 of the Omnibus Election Code provides the option of substitution, to wit: Section 77. Candidates in case of death, disqualification or withdrawal. If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of the day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission. Nonetheless, whether the ground for substitution is death, withdrawal or disqualification of a candidate, Section 77 of the Omnibus Election Code unequivocally states that only an official candidate of a registered or accredited party may be substituted. Considering that a cancelled CoC does not give rise to a valid candidacy, there can be no valid substitution of the candidate under Section 77 of the Omnibus Election Code. It should be clear, too, that a candidate who does not file a valid CoC may not be validly substituted, because a person without a valid CoC is not considered a candidate in much the same way as any person who has not filed a CoC is not at 34 all a candidate. Likewise, a candidate who has not withdrawn his CoC in accordance with Section 73 of the Omnibus Election Code may not be substituted. A withdrawal of candidacy can only give effect to a substitution if the substitute candidate submits prior to the election a sworn CoC as 35 required by Section 73 of the Omnibus Election Code. 2. Declaration of Ramons disqualification rendered his CoC invalid; hence, he was not a valid candidate to be properly substituted In the light of the foregoing rules on the CoC, the Court concurs with the conclusion of the COMELEC En Banc that the Castillo petition in SPA 09-029 (DC) was in the nature of a petition to deny due course to or cancel a CoC under Section 78 of the Omnibus Election Code. In describing the nature of a Section 78 petition, the Court said in Fermin v. Commission on Elections:
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Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the lack of qualifications but on a finding that the candidate made a material representation that is false, which may relate to the qualifications required of the public office he/she is running for. It is noted that the candidate states in his/her CoC that he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional and statutory provisions on qualifications or eligibility for public office. If the candidate subsequently states a material representation in the CoC that is false, the COMELEC, following the law, is empowered to deny due course to or cancel such certificate. Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they both deal with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a "Section 78" petition is filed before proclamation, while a petition for quo warranto is filed after proclamation of the winning candidate.

Castillos petition contained essential allegations pertaining to a Section 78 petition, namely: (a) Ramon made a false representation in his CoC; (b) the false representation referred to a material matter that would affect the substantive right of Ramon as candidate (that is, the right to run for the election for which he filed his certificate); and (c) Ramon made the false representation with the intention to deceive the electorate as to his qualification for public office or deliberately attempted to mislead, misinform, or hide a fact that would otherwise render 37 him ineligible. The petition expressly challenged Ramons eligibility for public office based on the prohibition stated in the Constitution a nd the Local Government Code against any person serving three consecutive terms, and specifically prayed that "the Certificate of Candidacy 38 filed by the respondent Ramon be denied due course to or cancel the same and that he be declared as a disqualified candidate." The denial of due course to or the cancellation of the CoC under Section 78 involves a finding not only that a person lacks a qualification but 39 also that he made a material representation that is false. A petition for the denial of due course to or cancellation of CoC that is short of the 40 requirements will not be granted. In Mitra v. Commission on Elections, the Court stressed that there must also be a deliberate attempt to mislead, thus: The false representation under Section 78 must likewise be a "deliberate attempt to mislead, misinform, or hide a fact that would otherwise render a candidate ineligible." Given the purpose of the requirement, it must be made with the intention to deceive the electorate as to the would-be candidates qualifications for public offic e. Thus, the misrepresentation that Section 78 addresses cannot be the result of a mere innocuous mistake, and cannot exist in a situation where the intent to deceive is patently absent, or where no deception on the electorate results. The deliberate character of the misrepresentation necessarily follows from a consideration of the consequences of any material falsity: a candidate who falsifies a material fact cannot run; if he runs and is elected, he cannot serve; in both cases, he can be prosecuted for violation of the election laws. It is underscored, however, that a Section 78 petition should not be interchanged or confused with a Section 68 petition. The remedies under 41 the two sections are different, for they are based on different grounds, and can result in different eventualities. A person who is disqualified under Section 68 is prohibited to continue as a candidate, but a person whose CoC is cancelled or denied due course under Section 78 is not 42 43 considered as a candidate at all because his status is that of a person who has not filed a CoC. Miranda v. Abaya has clarified that a candidate who is disqualified under Section 68 can be validly substituted pursuant to Section 77 because he remains a candidate until disqualified; but a person whose CoC has been denied due course or cancelled under Section 78 cannot be substituted because he is not considered a candidate.1wphi1 To be sure, the cause of Ramons ineligibility (i.e., the three -term limit) is enforced both by the Constitution and statutory law. Article X, Section 8 of the 1987 Constitution provides: 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. Section 43 of the Local Government Code reiterates the constitutional three-term limit for all elective local officials, to wit: Section 43. Term of Office. (a) x x x (b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected. (Emphasis supplied.) The objective of imposing the three-term limit rule was "to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office." The Court underscored this objective in Aldovino, Jr. v. Commission 44 on Elections, stating: x x x The framers of the Constitution specifically included an exception to the peoples freedom to choose those who will gov ern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city mayor after having served for three consecutive terms as a municipal mayor would obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another three consecutive terms as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the Constitution, if not abhorred by it. To accord with the constitutional and statutory proscriptions, Ramon was absolutely precluded from asserting an eligibility to run as Mayor of Lucena City for the fourth consecutive term. Resultantly, his CoC was invalid and ineffectual ab initio for containing the incurable defect consisting in his false declaration of his eligibility to run. The invalidity and inefficacy of his CoC made his situation even worse than that of a nuisance candidate because the nuisance candidate may remain eligible despite cancellation of his CoC or despite the denial of due course 45 to the CoC pursuant to Section 69 of the Omnibus Election Code. Ramon himself specifically admitted his ineligibility when he filed his Manifestation with Motion to Resolve on December 30, 2009 in the 46 COMELEC. That sufficed to render his CoC invalid, considering that for all intents and purpose s the COMELECs declaration of his disqualification had the effect of announcing that he was no candidate at all. We stress that a non-candidate like Ramon had no right to pass on to his substitute. As Miranda v. Abaya aptly put it:

Even on the most basic and fundamental principles, it is readily understood that the concept of a substitute presupposes the existence of the person to be substituted, for how can a person take the place of somebody who does not exist or who never was. The Court has no other choice but to rule that in all the instances enumerated in Section 77 of the Omnibus Election Code, the existence of a valid certificate of candidacy seasonably filed is a requisite sine qua non. All told, a disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place because, if the disqualified candidate did not have a valid and seasonably filed certificate of candidacy, he is and was not a candidate at all. If a person was not a candidate, he cannot be substituted under Section 77 of the Code. Besides, if we were to allow the so-called "substitute" to file a "new" and "original" certificate of candidacy beyond the period for the filing thereof, it would be a crystalline case of unequal protection of the law, an act 47 abhorred by our Constitution. (Emphasis supplied) 3. Granting without any qualification of petition in SPA No. 09-029(DC) manifested COMELECs intention to declare Ramon disqualified and to cancel his CoC That the COMELEC made no express finding that Ramon committed any deliberate misrepresentation in his CoC was of little consequence in the determination of whether his CoC should be deemed cancelled or not. In Miranda v. Abaya, the specific relief that the petition prayed for was that the CoC "be not given due course and/or cancelled." The COMELEC categorically granted "the petition" and then pronounced in apparent contradiction that Joel Pempe Miranda was "disqualified." The Court held that the COMELEC, by granting the petition without any qualification, disqualified Joel Pempe Miranda and at the same time cancelled Jose Pempe Mirandas CoC. The Court explained: The question to settle next is whether or not aside from Joel "Pempe" Miranda being disqualified by the Comelec in its May 5, 1998 resolution, his certificate of candidacy had likewise been denied due course and cancelled. The Court rules that it was. Private respondents petition in SPA No. 98-019 specifically prayed for the following: WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by respondent for the position of Mayor for the City of Santiago be not given due course and/or cancelled. Other reliefs just and equitable in the premises are likewise prayed for. (Rollo, p. 31; Emphasis ours.) In resolving the petition filed by private respondent specifying a very particular relief, the Comelec ruled favorably in the following manner: WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the Petition. Respondent JOSE "Pempe" MIRANDA is hereby DISQUALIFIED from running for the position of mayor of Santiago City, Isabela, in the May 11, 1998 national and local elections. SO ORDERED. (p.43, Rollo; Emphasis ours.) From a plain reading of the dispositive portion of the Comelec resolution of May 5, 1998 in SPA No. 98-019, it is sufficiently clear that the prayer specifically and particularly sought in the petition was GRANTED, there being no qualification on the matter whatsoever. The disqualification was simply ruled over and above the granting of the specific prayer for denial of due course and cancellation of the certificate 49 of candidacy. x x x. xxxx x x x. There is no dispute that the complaint or petition filed by private respondent in SPA No. 98-019 is one to deny due course and to cancel the certificate of candidacy of Jose "Pempe" Miranda (Rollo, pp. 26-31). There is likewise no question that the said petition was GRANTED without any qualification whatsoever. It is rather clear, therefore, that whether or not the Comelec granted any further relief in SPA No. 98019 by disqualifying the candidate, the fact remains that the said petition was granted and that the certificate of candidacy of Jose "Pempe" 50 Miranda was denied due course and cancelled. x x x. The crucial point of Miranda v. Abaya was that the COMELEC actually granted the particular relief of cancelling or denying due course to the CoC prayed for in the petition by not subjecting that relief to any qualification.
48

Miranda v. Abaya applies herein. Although Castillos petition in SPA No. 09 -029 (DC) specifically sought both the disqualification of Ramon and the denial of due course to or cancellation of his CoC, the COMELEC categorically stated in the Resolution dated April 19, 2010 that it was granting the petition. Despite the COMELEC making no finding of material misrepresentation on the part of Ramon, its granting of Castillos petition without express qualifications manifested that the COMELEC had cancelled Ramons CoC based on his apparent ineligibility. The Resolution dated April 19, 2010 became final and executory because Castillo did not move for its reconsideration, and because Ramon later withdrew his motion for reconsideration filed in relation to it. 4. Elected Vice Mayor must succeed and assume the position of Mayor due to a permanent vacancy in the office On the issue of who should assume the office of Mayor of Lucena City, Castillo submits that the doctrine on the rejection of the second-placer 51 espoused in Labo, Jr. v. Commission on Elections should not apply to him because Ramons disqualification b ecame final prior to the 52 53 elections. Instead, he cites Cayat v. Commission on Elections, where the Court said: x x x In Labo there was no final judgment of disqualification before the elections. The doctrine on the rejection of the second placer was applied in Labo and a host of other cases because the judgment decl aring the candidates disqualification in Labo and the other cases had not become final before the elections. To repeat, Labo and the other cases applying the doctrine on the rejection of the second placer have one common essential condition the disqualification of the candidate had not become final before the elections. This essential condition does not exist in the present case. Thus, in Labo, Labos disqualification became final only on 14 May 1992, three days after the 11 May 1992 elections. On elect ion day itself, Labo was still legally a candidate. In the present case, Cayat was disqualified by final judgment 23 days before the 10 May 2004 elections. On election day, Cayat was no longer legally a candidate for mayor. In short, Cayats candidacy for M ayor of Buguias, Benguet was legally non-existent in the 10 May 2004 elections. The law expressly declares that a candidate disqualified by final judgment before an election cannot be voted for, and votes cast for him shall not be counted. This is a mandatory provision of law. Section 6 of Republic Act No. 6646, The Electoral Reforms Law of 1987, states: 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. (Emphasis added) Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when the disqualification becomes final before the elections, which is the situation covered in the first sentence of Section 6. The second is when the disqualification becomes final after the elections, which is the situation covered in the second sentence of Section 6. The present case falls under the first situation. Section 6 of the Electoral Reforms Law governing the first situation is categorical: a candidate disqualified by final judgment before an election cannot be voted for, and votes cast for him shall not be counted. The Resolution disqualifying Cayat became final on 17 April 2004, way before the 10 May 2004 elections. Therefore, all the 8,164 votes cas t in Cayats favor are stray. Cayat was never a candidate in the 10 May 2004 elections. Palilengs proclamation is proper because he was the sol e and only 54 candidate, second to none. Relying on the pronouncement in Cayat, Castillo asserts that he was entitled to assume the position of Mayor of Lucena City for having obtained the highest number of votes among the remaining qualified candidates. It would seem, then, that the date of the finality of the COMELEC resolution declaring Ramon disqualified is decisive. According to Section 55 10, Rule 19 of the COMELECs Resolution No. 8804, a decision or resolution of a Division becomes final and executory after the lapse of five days following its promulgation unless a motion for reconsideration is seasonably filed. Under Section 8, Rule 20 of Resolution No. 8804, the decision of the COMELEC En Banc becomes final and executory five days after its promulgation and receipt of notice by the parties. The COMELEC First Division declared Ramon disqualified through its Resolution dated April 19, 2010, the copy of which Ramon received on 56 57 the same date. Ramon filed a motion for reconsideration on April 21, 2010 in accordance with Section 7 of COMELEC Resolution No. 58 59 8696, but withdrew the motion on May 4, 2010, ostensibly to allow his substitution by Barbara Ruby. On his part, Castillo did not file any motion for reconsideration. Such circumstances indicated that there was no more pending matter that could have effectively suspended the finality of the ruling in due course. Hence, the Resolution dated April 19, 2010 could be said to have attained finality upon the lapse of five days from its promulgation and receipt of it by the parties. This happened probably on April 24, 2010. Despite such finality, the COMELEC En Banc continued to act on the withdrawal by Ramon of his motion for reconsideration through the May 5, 2010 Resolution declaring the April 19, 2010 Resolution of the COMELEC First Division final and executory. Yet, we cannot agree with Castillos assertion that with Ramons disqualification becoming final prior to the May 10, 2010 el ections, the ruling in Cayat was applicable in his favor. Barbara Rubys filing of her CoC in substitution of Ramon significantly differentiated this case from the

factual circumstances obtaining in Cayat. Rev. Fr. Nardo B. Cayat, the petitioner in Cayat, was disqualified on April 17, 2004, and his disqualification became final before the May 10, 2004 elections. Considering that no substitution of Cayat was made, Thomas R. Palileng, Sr., his rival, remained the only candidate for the mayoralty post in Buguias, Benguet. In contrast, after Barbara Ruby substituted Ramon, the May 10, 2010 elections proceeded with her being regarded by the electorate of Lucena City as a bona fide candidate. To the electorate, she became a contender for the same position vied for by Castillo, such that she stood on the same footing as Castillo. Such standing as a candidate negated Castillos claim of being the candidate who obtained the highest number of votes, and of being consequently entitled to assume the office of Mayor. Indeed, Castillo could not assume the office for he was only a second placer.1wphi1 Labo, Jr. should be applied. There, the Court emphasized that the candidate obtaining the second highest number of votes for the contested office could not assume the office despite the 60 disqualification of the first placer because the second placer was "not the choice of the sovereign will." Surely, the Court explained, a 61 minority or defeated candidate could not be deemed elected to the office. There was to be no question that the second placer lost in the 62 election, was repudiated by the electorate, and could not assume the vacated position. No law imposed upon and compelled the people of 63 Lucena City to accept a loser to be their political leader or their representative. The only time that a second placer is allowed to take the place of a disqualified winning candidate is when two requisites concur, namely: (a) the candidate who obtained the highest number of votes is disqualified; and (b) the electorate was fully aware in fact and in law of that candidates disqualification as to bring such awareness within the realm of notoriety but the electorate still cast the plura lity of the votes in 64 favor of the ineligible candidate. Under this sole exception, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case the eligible candidate with the second highest number 65 of votes may be deemed elected. But the exception did not apply in favor of Castillo simply because the second element was absent. The electorate of Lucena City were not the least aware of the fact of Barbara Rubys ineligibility as the substitute. In fact, th e COMELEC En Banc issued the Resolution finding her substitution invalid only on May 20, 2011, or a full year after the decisions. On the other hand, the COMELEC En Banc properly disqualified Barbara Ruby from assuming the position of Mayor of Lucena City. To begin with, there was no valid candidate for her to substitute due to Ramons ineligibility. Also, Ramon did not voluntarily withdraw his CoC before the elections in accordance with Section 73 of the Omnibus Election Code. Lastly, she was not an additional candidate for the position of Mayor of Lucena City because her filing of her CoC on May 4, 2010 was beyond the period fixed by law. Indeed, she was not, in law and in 66 fact, a candidate. A permanent vacancy in the office of Mayor of Lucena City thus resulted, and such vacancy should be filled pursuant to the law on 67 succession defined in Section 44 of the LGC, to wit: 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 governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor. x x x WHEREFORE, the Court DISMISSES the petitions in these consolidated cases; AFFIRMS the Resolution issued on May 20, 2011 by the COMELEC En Banc; and ORDERS the petitioners to pay the costs of suit. SO ORDERED. CONCURRING OPINION VELASCO, JR., J.: In view of the opinions submitted, it is my view that there was no valid substitution of candidates for the mayoralty position in Lucena City between Ramon Talaga and his wife, Ruby Talaga. I likewise opine that considering the judgments on the disqualification of Ruben Talaga and on the validity of the substitution became final only after the May 10, 2010 elections, the laws of succession in case of permanent vacancies under Section 44 of the Local Government Code should apply. First, Section 77 of the Omnibus Election Code is clear that before a substitution of candidates for an elective position could be validity done, the official candidate of a registered or accredited political party should die, withdraw or must be qualified for any cause. In the present case, the records will show that at the time Ruby C. Talaga filed her Certificate of Candidacy, or May 4, 2010, there was still no ground for substitute since the judgment on Ramon Talagas disqualification had not yet attained finality. Although the Decision of the Comelec was promulgated on April 19, 2010, the five-day period for its execution or implementation was suspended when Ramon Talaga filed a Motion for Reconsideration on April 21, 2010. This is clear under Section 2 of Rule 19 of the Comelec Rules of Procedure, which provides: Section 2. Period for Filing Motions for Reconsideration. - A motion to reconsider a decision, resolution, order, or ruling of a Division shall be filed within five (5) days from the promulgation thereof. Such motion, if not proforma, suspends the execution or implementation of the decision, resolution, order or ruling. (Emphasis supplied) It also appears that on the morning of May 4, 2012, or before Ruby Talaga filed her Certificate of Candidacy, Ramon Talaga filed a manifestation to withdraw his Motion for Reconsideration. However, this manifestation does not have any effect in determining the finality of an action for disqualification of a candidate. It is significant to note that under the Comelec Rules of Procedure, an action for disqualification 2 of candidate is a Special Case or Special Action. In relation thereto, Section 13 of Rule 18 of same rules provide that the finality of a judgment in a Special Action is based on the date of promulgation, to wit:
1

Section 13. Finality of Decisions or Resolutions. (a) In ordinary actions, special proceedings, provisional remedies and special reliefs a decision or resolution of the Commission en banc shall become final and executory after thirty (30) days from its promulgation. (b) In Special Actions and Special Cases a decision or resolutions of the Commission en banc shall become final and executory after five (5) days from its promulgation unless restrained by the Supreme Court. (c) Unless a motion for reconsideration is seasonably filed, a decision or resolution of a Division shall become final and executory after the lapse of five (5) days in Special actions and Special cases and after fifteen (15) days in all other actions or proceedings, following its promulgation. (Emphasis supplied) Notably, the finality of the judgment of the Comelec is reckoned from the date of the promulgation and not from the date of receipt of the resolution, decision or order which is the standard rule in non-election related cases. To my mind, the rationale for such requirement would manifest by relating the aforementioned provision with Section 5 of Rule 18 of the same Rules, which provides: Section 5. Promulgation. - The promulgation of a decision or resolution 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. (Emphasis supplied) It appears that because of the requirements of advance notice and a scheduled date of promulgation, there is an assurance that the parties to an election case would be present on the date of promulgation. Hence, the actual promulgation of a Comelec decision, order or resolution constitutes an actual notice to the parties. In the present case, the five-day period in attaining finality judgment could have been reckoned from May 5, 2010 or the day when the Comelec En Banc issued an order dismissing the Motion for Reconsideration filed by Ramon Talaga. However, the records will show that the parties were not notified of the promulgation of the said May 5, 2010 Decision. In here, the notice of the May 5, 2010 Order of the Comelec En Banc was made only on the next day, or May 6, 2010 and was received by the parties or their counsels only on May 7, 2012 and May 13, 3 2010. Therefore, when the parties were not notified of the promulgation of the May 5, 2010 Order of the Comelec En Banc as required by the Comelec Rules, the judgment on Ramon Talagas disqualification could not be considered as final and executory as to them. Furthermore, even assuming arguendo the May 6, 2010 Notice was valid, the judgment would attain finality only after five-days from receipt thereof. Nevertheless, whether it was received on May 7 or May 13, the judgment on Ramon Talagas disqualification became final and execut ory after the May 10, 2010 Elections. Considering further that Ramon Talagas disqualification became final after the May 10, 2010 Elections, it was only during that time that office of the Mayor of Lucena City became vacant. Since there is no question that Ramons disqualification to serve as City Mayor is permanent in character, the incumbent Vice-Mayor should serve as Mayor pursuant to Section 44 of the Local Government Code, which provides: Section 44. Permanent Vacancies in the Office of the Governor, Vice-Governor, Mayor, and Vice-Mayor. If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor. xxxx For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office. x x x x (Emphasis supplied) In view of the foregoing, I concur with the ponencia of Justice Lucas P. Bersamin that it is the incumbent Vice-Mayor, Roderick Alcatala, who should be the Mayor of Lucena City. PRESBITERO J. VELASCO, JR. Associate Justice

CONCURRING AND DISSENTING OPINION BRION, J.: I concur with the ponencia in dismissing Mayor Barbara Ruby Talaga's petition against the assailed Commission on Elections (COMELEC) en banc Resolution of May 20, 2011 in SPC No. 10-024; but I dissent with the ponencia's reasoning that the cause of invalidity or Ruby's substitution of Ramon Talaga is the cancellation of Ramon's certificate of candidacy (CoC). I dissent, too, with the ponencia's ruling that it is the Vice-Mayor who should be seated as Mayor, applying the rules of succession under the Local Government Code (LGC).

Ramon and Philip Castillo were the original candidates for the mayoralty post in Lucena City for the May l 0, 20 I 0 elections. Soon after they filed their CoCs, Castillo filed a petition to ''deny due course to or to cancel the certificate of candidacy" of Ralllon o11 the ground that he had 2 served for three consecutive terms as mayor. Ramon defended himself by citing the then COMELEC ruling that his preventive suspension in the course of his three terms as mayor 3 prevented him from serving continuously. On December 23, 2009, however, the Supreme Court issued a contrary ruling in Aldovino, Jr. v. 4 Commission on Elections and held that preventive suspension is only a temporary incapacity that does not interrupt a local officials term of office for purposes of the three-term limit rule. In light of this development, Ramon manifested before the COMELEC that he made no misrepresentation in his CoC because of the prevailing COMELEC ruling; he acknowledged that he was disqualified to run for mayor, and he prayed for a ruling declaring him 5 disqu`alified. The requested ruling came on April 19, 2010, through the grant of Castillos petition by the COMELEC First Division. Ramon responded to 7 the ruling by filing a motion for reconsideration, but he withdrew his motion on May 4, 2010 through an ex parte manifestation of 8 withdrawal. Later, on the same day, Ruby Ramons wife filed her CoC, attaching thereto the required Certificate of Nomination by 9 Ramons party. The COMELEC en bancs action on Ramons manifestation of withdrawal did not come until the next day May 5, 2010. The en banc, in its 10 Order, considered the April 19, 2010 Resolution of the COMELEC First Division final and executory. On election day, May 10, 2010, Ramons name remained in the printed ballot, but votes for him were counted in Rubys favor as votes for the 11 substitute candidate. Castillo sought to suspend the proclamation of Ramon or Ruby who had garnered 44,099 votes as against Castillos 39,615. On May 13, 13 2010, the COMELEC gave due course to Rubys CoC as substitute candidate. The Board of Canvassers, on the other hand, did not suspend the proclamation as Castillo had requested, and instead proclaimed Ruby as winner and elected Mayor of Lucena City on that same 14 day. Castillo sought to annul Rubys proclamation through another petition while the elected Vice Mayor, Roderick Alcala, moved to intervene in 16 Castillos petition. On January 11, 2011, the COMELEC Second Division dismissed Castillos petition and denied Alcalas motion. The COMELEC Second Division reasoned out that the substitution became final and executory when Castillo failed to act after receiving a copy of 17 the COMELEC resolution giving due course to Rubys substitution. Both parties went to the COMELEC en banc for the reconsideration of the COMELEC Second Divisi ons ruling. The COMELEC en banc reversed the January 11, 2011 ruling of the COMELEC Second Division on due process consideration and on the ground that the filing of Rubys CoC was not a proper substitution for being premature and for being filed out of time.
18 15 12 6

Against this COMELEC en banc ruling, both parties went to the Court.

The issues raised by the parties before the Court can be condensed as follows: a. Whether Ruby validly substituted for Ramon as candidate for mayor of Lucena City; b. In the negative, whether the cause of the invalidity of the substitution is Ramons disqualification or the cancellation o f his CoC; c. Who between Castillo and Alcala should assume the position of mayor of Lucena City? The ponencia dismissed Rubys petition (G.R. No. 196804) and Castillos petition (G.R. No. 197015) for lack of merit; and uph eld the COMELEC en bancs resolution of May 20, 2011 in SPC No. 10 -024. I agree with the ponencias conclusion that Ruby never validly substituted Ramon, and, therefore, she never became a candidate who can b e validly voted for in the May 2010 elections. The ponencia considers Rubys substitution as invalid because Ramons CoC contai ns an 19 "incurable defect consisting in his false declaration of his eligibility to run" for a fourth consecutive term. The ponencia adds that despite the absence of an express finding of material misrepresentation by the COMELEC, the fact that it granted Castillos petition "without exp ress 20 qualifications" manifested that the COMELEC had cancelled Ramons CoC. In short, the ponencia considers the CoC of a three -term candidate as invalid, warranting its cancellation. I dissent with the reasoning of the ponencia. I base my position of dissent on the following grounds the same grounds which would later support my position that it is Castillo who should be seated as Mayor a. the violation of the three-term limit rule is a unique but proper ground for disqualification and not for the cancellation of a CoC under Section 78 of the Omnibus Election Code (OEC); b. the petition filed by Castillo against Ramon was based on the three-term limit rule and, hence, was a petition for disqualification, but no effective disqualification ever took place since Ramon never qualified to serve for a fourth term; and

c. since Ruby did not validly substitute Ramon and Ramon opted to exit out of the election race (although through an erroneous mode of asking for a ruling disqualifying him), neither of the two can be considered candidates and the votes cast in their favor should be considered stray; thus, Castillo should be proclaimed as Mayor of Lucena City. Hidden behind but not erased by this simplistic recital of the issues, rulings and dissent is the legal reality that these cases pose issues way beyond the question of substitution that appears on the surface. They require a look into the nature of a CoC; distinctions between eligibility, or lack of it, and disqualification; the effects of cancellation and disqualification; the applicable remedies; and the unique nature and the effect of the constitutional three-term limit for local elective officials. The CoC and the Qualifications for its Filing. A basic rule and one that cannot be repeated often enough is that the CoC is the document that creates the status of a candidate. In Sinaca 21 v. Mula, the Court described the nature of a CoC as follows A certificate of candidacy is in the nature of a formal manifestation to the whole world of the candidate's political creed or lack of political creed. It is a statement of a person seeking to run for a public office certifying that he announces his candidacy for the office mentioned and that he is eligible for the office, the name of the political party to which he belongs, if he belongs to any, and his post-office address for all election purposes being as well stated. Both the 1973 and 1987 Constitutions left to Congress the task of providing the qualifications of local elective officials. Congress undertook this task by enacting Batas Pambasa Bilang (B.P. Blg.) 337 (LGC), the OEC and, later, Republic Act (R.A.) No. 7160 (Local Government 22 Code of 1991 or LGC 1991). Under Section 79 of the OEC, a political aspirant legally becomes a "candidate" only upon the due filing of his sworn CoC. In fact, Section 24 73 of the OEC makes the filing of the CoC a condition sine qua non for a person to "be eligible for any elective public office" i.e., to be validly voted for in the elections. Section 76 of the OEC makes it a "ministerial duty" for a COMELEC official "to receive and acknowledge 25 receipt of the certificate of candidacy" filed. COMELEC Resolution No. 8678 provides what a CoC must contain or state:
26 23

Section 2. Contents of certificate of candidacy. - The certificate of candidacy shall be under oath and shall state that the person filing it is announcing his candidacy for the office and constituency stated therein; that he is eligible for said office, his age, sex, civil status, place and date of birth, his citizenship, whether natural-born or naturalized; the registered political party to which he belongs; if married, the full name of the spouse; his legal residence, giving the exact address, the precinct number, barangay, city or municipality and province where he is registered voter; his post office address for election purposes; his profession or occupation or employment; that he is not a permanent resident or an immigrant to a foreign country; that he will support and defend the Constitution of the Republic of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, decrees, resolution, rules and regulations promulgated and issued by the duly-constituted authorities; that he assumes the foregoing obligations voluntarily without mental reservation or purpose of evasion; and that the facts stated in the certificate are true and correct to the best of his own knowledge. [italics supplied] From the point of view of the common citizen who wants to run for a local elective office, the above recital contains all the requirements that he must satisfy; it contains the basic and essential requirements applicable to all citizens to qualify for candidacy for a local elective office. These are their formal terms of entry to local politics. A citizen must not only possess all these requirements; he must positively represent in his CoC application that he possesses them. Any falsity on these requirements constitutes a material misrepresentation that can lead to the cancellation of the CoC. On this point, Section 78 of the OEC provides: Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. [italics, emphases and underscores ours] A necessarily related provision is Section 39 of LGC 1991 which states: Sec. 39. Qualifications. (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sanggunian bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. xxxx (c) Candidates for the position of Mayor or vice-mayor of independent component cities, component cities, or municipalities must be at least twenty-one (21) years of age on election day. [italics ours] Notably, Section 74 of the OEC does not require any negative qualification except only as expressly required therein. A specific negative requirement refers to the representation that the would-be candidate is not a permanent resident nor an immigrant in another country. This requirement, however, is in fact simply part of the positive requirement of residency in the locality for which the CoC is filed and, in this sense, it is not strictly a negative requirement. Neither does Section 74 require any statement that the would-be candidate does not possess any

ground for disqualification specifically enumerated by law, as disqualification is a matter that the OEC and LGC 1991 separately deal with, as discussed below. Notably, Section 74 does not require a would-be candidate to state that he has not served for three consecutive terms in the same elective position immediately prior to the present elections. With the accomplishment of the CoC and its filing, a political aspirant officially acquires the status of a candidate and, at the very least, the prospect of holding public office; he, too, formally opens himself up to the complex political environment and processes. The Court cannot be 27 more emphatic in holding "that the importance of a valid certificate of candidacy rests at the very core of the electoral process." Pertinent laws provide the specific periods when a CoC may be filed; when a petition for its cancellation may be brought; and the effect of its filing. These measures, among others, are in line with the State policy or objective of ensuring "equal access to opportunities for public 29 30 service," bearing in mind that the limitations on the privilege to seek public office are within the plenary power of Congress to provide. The Concept of Disqualification and its Effects. To disqualify, in its simplest sense, is (1) to deprive a person of a power, right or privilege; or (2) to make him or her ineligible for further 31 competition because of violation of the rules. It is in these senses that the term is understood in our election laws. Thus, anyone who may qualify or may have qualified under the general rules of eligibility applicable to all citizens may be deprived of the right to be a candidate or may lose the right to be a candidate (if he has filed his CoC) because of a trait or characteristic that applies to him or an act that can be imputed to him as an individual, separately from the general qualifications that must exist for a citizen to run for a local public office. Notably, the breach of the three-term limit is a trait or condition that can possibly apply only to those who have previously served for three consecutive terms in the same position sought immediately prior to the present elections. In a disqualification situation, the grounds are the individual traits or conditions of, or the individual acts of disqualification committed by, a candidate as provided under Sections 68 and 12 of the OEC and Section 40 of LGC 1991, and which generally have nothing to do with the 32 eligibility requirements for the filing of a CoC. Sections 68 and 12 of the OEC (together with Section 40 of LGC 1991, outlined below) cover the following as traits, characteristics or acts of disqualification: (i) corrupting voters or election officials; (ii) committing acts of terrorism to enhance candidacy; (iii) overspending; (iv) soliciting, receiving or making prohibited contributions; (v) campaigning outside the campaign period; (vi) removal, destruction or defacement of lawful election propaganda; (vii) committing prohibited forms of election propaganda; (viii) violating rules and regulations on election propaganda through mass media; (ix) coercion of subordinates; (x) threats, intimidation, terrorism, use of fraudulent device or other forms of coercion; (xi) unlawful electioneering; (xii) release, disbursement or expenditure of public funds; (xiii) solicitation of votes or undertaking any propaganda on the day of the election; (xiv) declaration as an insane; and (xv) committing subversion, insurrection, rebellion or any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude. Section 40 of LGC 1991, on the other hand, essentially repeats those already in the OEC under the following disqualifications: a. Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; b. Those removed from office as a result of an administrative case; c. Those convicted by final judgment for violating the oath of allegiance to the Republic; d. Those with dual citizenship; e. Fugitives from justice in criminal or non-political cases here or abroad; f. Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and g. The insane or feeble-minded. Together, these provisions embody the disqualifications that, by statute, can be imputed against a candidate or a local elected official to deny him of the chance to run for office or of the chance to serve if he has been elected. A unique feature of "disqualification" is that under Section 68 of the OEC, it refers only to a "candidate," not to one who is not yet a candidate. Thus, the grounds for disqualification do not apply to a would-be candidate who is still at the point of filing his CoC. This is the reason why no representation is required in the CoC that the would-be candidate does not possess any ground for disqualification. The time to hold a person accountable for the grounds for disqualification is after attaining the status of a candidate, with the filing of the CoC. To sum up and reiterate the essential differences between the eligibility requirements and disqualifications, the former are the requirements that apply to, and must be complied by, all citizens who wish to run for local elective office; these must be positively asserted in the CoC. The
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latter refer to individual traits, conditions or acts that serve as grounds against one who has qualified as a candidate to lose this status or privilege; essentially, they have nothing to do with a candidates CoC. When the law allows the cancellation of a candidates CoC, the law considers the cancellation from the point of view of the requirements that every citizen who wishes to run for office must commonly satisfy. Since the elements of "eligibility" are common, the vice of ineligibility attaches to and affects both the candidate and his CoC. In contrast, when the law allows the disqualification of a candidate, the law looks only at the disqualifying trait or condition specific to the individual; if the "eligibility" requirements have been satisfied, the disqualification applies only to the person of the candidate, leaving the CoC valid. A previous conviction of subversion is the best example as it applies not to the citizenry at large, but only to the convicted individuals; a convict may have a valid CoC upon satisfying the eligibility requirements under Section 74 of the OEC, but shall nevertheless be disqualified. Distinctions among (i) denying due course to or cancellation of a CoC, (ii) disqualification, and (iii) quo warranto The nature of the eligibility requirements for a local elective office and the disqualifications that may apply to candidates necessarily create distinctions on the remedies available, on the effects of lack of eligibility and on the application of disqualification. The remedies available are essentially: the cancellation of a CoC, disqualification from candidacy or from holding office, and quo warranto, which are distinct remedies with varying applicability and effects. For ease of presentation and understanding, their availability, grounds and effects are topically discussed below. As to the grounds: In the denial of due course to or cancellation of a CoC, the ground is essentially lack of eligibility under the pertinent constitutional and 33 34 statutory provisions on qualifications or eligibility for public office; the governing provisions are Sections 78 and 69 of the OEC. In a disqualification case, as mentioned above, the grounds are traits, characteristics or acts of disqualification, individually applicable to a candidate, as provided under Sections 68 and 12 of the OEC; Section 40 of LGC 1991; and, as discussed below, Section 8, Article X of the Constitution. As previously discussed, the grounds for disqualification are different from, and have nothing to do with, a candidates CoC although they may result in disqualification from candidacy whose immediate effect upon finality before the elections is the same as a cancellation. If they are cited in a petition filed before the elections, they remain as disqualification grounds and carry effects that are distinctly peculiar to disqualification. In a quo warranto petition, the grounds to oust an elected official from his office are ineligibility and disloyalty to the Republic of the Philippines. This is provided under Section 253 of the OEC and governed by the Rules of Court as to the procedures. While quo warranto and cancellation share the same ineligibility grounds, they differ as to the time these grounds are cited. A cancellation case is brought before the elections, while a quo warranto is filed after and may still be filed even if a CoC cancellation case was not filed before elections, viz.: The only difference between the two proceedings is that, under section 78, the qualifications for elective office are misrepresented in the certificate of candidacy and the proceedings must be initiated before the elections, whereas a petition for quo warranto under section 253 may be brought on the basis of two grounds - (1) ineligibility or (2) disloyalty to the Republic of the Philippines, and must be initiated within ten days after the proclamation of the election results. Under section 253, a candidate is ineligible if he is disqualified to be elected to office, 36 and he is disqualified if he lacks any of the qualifications for elective office. Note that the question of what would constitute acts of disqualification under Sections 68 and 12 of the OEC and Section 40 of LGC 1991 is best resolved by directly referring to the provisions involved. On the other hand, what constitutes a violation of the three-term limit rule 37 under the Constitution has been clarified in our case law. The approach is not as straight forward in a petition to deny due course to or cancel a CoC and also to a quo warranto petition, which similarly covers the ineligibility of a candidate/elected official. In Salcedo II v. 38 COMELEC, we ruled that In order to justify the cancellation of the certificate of candidacy under Section 78, it is essential that the false representation mentioned therein pertain to a material matter for the sanction imposed by this provision would affect the substantive rights of a candidate the right to run for the elective post for which he filed the certificate of candidacy. Although the law does not specify what would be considered as a "material representation," the Court has interpreted this phrase in a line of decisions applying Section 78 of the Code. xxxx Therefore, it may be concluded that the material misrepresentation contemplated by Section 78 of the Code refer to qualifications for elective office. This conclusion is strengthened by the fact that the consequences imposed upon a candidate guilty of having made a false representation in his certificate of candidacy are grave to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of the election laws. It could not have been the intention of the law to deprive a person of such a basic and substantive political right to be voted for a public office upon just any innocuous mistake. [emphases ours, citation omitted] Thus, in addition to the failure to satisfy or comply with the eligibility requirements, a material misrepresentation must be present in a cancellation of CoC situation. The law apparently does not allow material divergence from the listed requirements to qualify for candidacy and enforces its edict by requiring positive representation of compliance under oath. Significantly, where disqualification is involved, the mere existence of a ground appears sufficient and a material representation assumes no relevance. As to the period for filing:
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The period to file a petition to deny due course to or cancel a CoC depends on the provision of law invoked. If the petition is filed under 39 Section 78 of the OEC, the petition must be filed within twenty-five (25) days from the filing of the CoC. However, if the petition is brought under Section 69 of the same law, the petition must be filed within five (5) days from the last day of filing the CoC.
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On the other hand, the period to file a disqualification case is at any time before the proclamation of a winning candidate, as provided in 41 COMELEC Resolution No. 8696. The three-term limit disqualification, because of its unique characteristics, does not strictly follow this time limitation and is discussed at length below. At the very least, it should follow the temporal limitations of a quo warranto petition which must be 42 filed within ten (10) days from proclamation. The constitutional nature of the violation, however, argues against the application of this time requirement; the rationale for the rule and the role of the Constitution in the countrys legal order dictate that a petition should be allowed while a consecutive fourth-termer is in office. As to the effects of a successful suit: A candidate whose CoC was denied due course or cancelled is not considered a candidate at all. Note that the law fixes the period within 43 which a CoC may be filed. After this period, generally no other person may join the election contest. A notable exception to this general rule is the rule on substitution: when an official candidate of a registered political party dies, withdraws or is disqualified for any cause after the last day for filing a CoC, the law allows the substitution of the dead, withdrawing or disqualified candidate, provided that he or she had a valid and subsisting CoC at the time of death, withdrawal or substitution. This proviso is necessary since the entry of a new candidate after the regular period for filing the CoC is exceptional. Unavoidably, a "candidate" whose CoC has been cancelled or denied due course cannot be 44 substituted for lack of a CoC, to all intents and purposes. Similarly, a successful quo warranto suit results in the ouster of an already elected official from office; substitution, for obvious reasons, can no longer apply. On the other hand, a candidate who was simply disqualified is merely prohibited from continuing as a candidate or from assuming or 45 continuing to assume the functions of the office; substitution can thus take place before election under the terms of Section 77 of the 46 OEC. However, a three-term candidate with a valid and subsisting CoC cannot be substituted if the basis of the substitution is his disqualification on account of his three-term limitation. Disqualification that is based on a breach of the three-term limit rule cannot be invoked as this disqualification can only take place after election where the three-term official emerged as winner. As in a quo warranto, any substitution is too late at this point. As to the effects of a successful suit on the right of the second placer in the elections: In any of these three remedies, the doctrine of rejection of the second placer applies for the simple reason that To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions 47 would have substantially changed. We are not prepared to extrapolate the results under such circumstances. With the disqualification of the winning candidate and the application of the doctrine of rejection of the second placer, the rules on succession under the law accordingly apply. As an exceptional situation, however, the candidate with the second highest number of votes (second placer) may be validly proclaimed as the winner in the elections should the winning candidate be disqualified by final judgment before the elections, as clearly provided in Section 48 6 of R.A. No. 6646. The same effect obtains when the electorate is fully aware, in fact and in law and within the realm of notoriety, of the disqualification, yet they still voted for the disqualified candidate. In this situation, the electorate that cast the plurality of votes in favor of the 49 notoriously disqualified candidate is simply deemed to have waived their right to vote. In a CoC cancellation proceeding, the law is silent on the legal effect of a judgment cancelling the CoC and does not also provide any temporal distinction. Given, however, the formal initiatory role a CoC plays and the standing it gives to a political aspirant, the cancellation of the CoC based on a finding of its invalidity effectively results in a vote for an inexistent "candidate" or for one who is deemed not to be in the ballot. Although legally a misnomer, the "second placer" should be proclaimed the winner as the candidate with the highest number of votes for the contested position. This same consequence should result if the cancellation case becomes final after elections, as the cancellation signifies non-candidacy from the very start, i.e., from before the elections. Violation of the three-term limit rule a. The Three-Term Limit Rule. The three-term limit rule is a creation of Section 8, Article X of the Constitution. This provision fixes the maximum limit an elective local official can consecutively serve in office, and at the same time gives the command, in no uncertain terms, that no such official shall serve for more than three consecutive terms. Thus, a three-term local official is barred from serving a fourth and subsequent consecutive terms. This bar, as a constitutional provision, must necessarily be read into and interpreted as a component part of the OEC under the legal reality that neither this Code nor the LGC provides for the three-term limit rules operational details; it is not referred to as a ground for the cancellation of a CoC nor for the disqualification of a candidate, much less are its effects provided for. Thus, the need to fully consider, reconcile and harmonize the terms and effects of this rule on elections in general and, in particular, on the circumstances of the present case.

b. Is the Rule an Eligibility Requirement or a Disqualification? In practical terms, the question of whether the three-term limit rule is a matter of "eligibility" that must be considered in the filing of a CoC translates to the need to state in a would-be candidates CoC application that he is eligible for candidacy because he has not served for three consecutive terms immediately before filing his application. The wording of Section 8, Article X of the Constitution, however, does not justify this requirement as Section 8 simply sets a limit on the number of consecutive terms an official can serve. It does not refer to elections, much less does it bar a three-termers candidacy. As previously discussed, Section 74 of the OEC does not expressly require a candidate to assert the non-possession of any disqualifying trait or condition, much less of a candidates observance of the three -term limit rule. In fact, the assertion of a would-be candidates eligibility, as required by the OEC, could not have contemplated making a three-term candidate ineligible for candidacy since that disqualifying trait began to exist only later under the 1987 Constitution. What Section 8, Article X of the Constitution indisputably mandates is solely a bar against serving for a fourth consecutive term, not a bar against candidacy. Of course, between the filing of a CoC (that gives an applicant the status of a candidate) and assumption to office as an election winner is a wide expanse of election activities whose various stages our election laws treat in various different ways. Thus, if candidacy will be aborted from the very start (i.e., at the initial CoC-filing stage), what effectively takes place granting that the third-termer possesses all the eligibility elements required by law is a shortcut that is undertaken on the theory that the candidate cannot serve in any way if he wins a fourth term. I submit that while simple and efficient, essential legal considerations should dissuade the Court from using this approach. To make this shortcut is to incorporate into the law, by judicial fiat, a requirement that is not expressly there. In other words, such shortcut may go beyond allowable interpretation that the Court can undertake, and cross over into prohibited judicial legislation. Not to so hold, on the other hand, does not violate the three-term limit rule even in spirit, since its clear and undisputed mandate is to disallow serving for a fourth consecutive term; this objective is achieved when the local official does not win and can always be attained by the direct application of the law if he does win. Another reason, and an equally weighty one, is that a shortcut would run counter to the concept of commonality that characterizes the eligibility requirements; it would allow the introduction of an element that does not apply to all citizens as an entry qualification. Viewed from the prism of the general distinctions between eligibility and disqualification discussed above, the three-term limit is unavoidably a restriction that applies only to local officials who have served for three consecutive terms, not to all would-be candidates at large; it applies only to specific individuals who may have otherwise been eligible were it not for the three-term limit rule and is thus a defect that attaches only to the candidate and not to his CoC. In this sense, it cannot but be a disqualification and at that, a very specific one. That the prohibited fourth consecutive term can only take place after a three-term local official wins his fourth term signifies too that the prohibition (and the resulting disqualification) only takes place after elections. This circumstance, to my mind, supports the view that the three-term limit rule does not at all involve itself with the matter of candidacy; it only regulates service beyond the limits the Constitution has set. Indeed, it is a big extrapolative leap for a prohibition that applies after election, to hark back and affect the initial election process for the filing of CoCs. Thus, on the whole, I submit that the legally sound view is not to bar a three-termers candidacy for a fourth term if the three-term limit rule is the only reason for the bar. In these lights, the three-term limit rule as a bar against a fourth consecutive term is effectively a 50 disqualification against such service rather than an eligibility requirement. c. Filing of Petition and Effects. As a disqualification that can only be triggered after the elections, it is not one that can be implemented or given effect before such time. The reason is obvious; before that time, the gateway to the 4th consecutive term has not been opened because the four-term re-electionist has not won. This reality brings into sharp focus the timing of the filing of a petition for disqualification for breach of the three-term limit rule. Should a petition under the three-term limit rule be allowed only after the four-term official has won on the theory that it is at that point that the Constitution demands a bar? The timing of the filing of the petition for disqualification is a matter of procedure that primarily rests with the COMELEC. Of course, a petition for disqualification cannot be filed against one who is not yet a candidate as only candidates (and winners) can be disqualified. Hence, the filing should be done after the filing of the CoC. On the backend limitation of its filing, I believe that the petition does not need to be hobbled 51 by the terms of COMELEC Resolution No. 8696 because of the special nature and characteristics of the three-term limit rule i.e., the constitutional breach involved; the fact that it can be effective only after a candidate has won the election; and the lack of specific provision of the election laws covering it. To be sure, a constitutional breach cannot be allowed to remain unattended because of the procedures laid down by administrative bodies. While Salcedo considers the remedy of quo warranto as almost the same as the remedy of cancellation on the question of eligibility, the fact that the remedies can be availed of only at particular periods of the election process signifies more than temporal distinction.

From the point of view of eligibility, one who merely seeks to hold public office through a valid candidacy cannot wholly be treated in the same manner as one who has won and is at the point of assuming or serving the office to which he has been elected; the requirements to be eligible as a candidate are defined by the election laws and by the local government code, but beyond these are constitutional restrictions on eligibility to serve. The three-term limit rule serves as the best example of this fine distinction; a local official who is allowed to be a candidate under our statutes but who is effectively in his fourth term should be considered ineligible to serve if the Court were to give life to the constitutional provision, couched in a strong prohibitory language, that "no such official shall serve for more than three consecutive terms." A possible legal stumbling block in allowing the filing of the petition before the election is the lack of a cause of action or prematurity at that point.1wphi1 If disqualification is triggered only after a three-termer has won, then it may be argued with some strength that a petition, filed against a respondent three-term local official before he has won a fourth time, has not violated any law and does not give the petitioner the 52 right to file a petition for lack of cause of action or prematurity. I take the view, however, that the petition does not need to be immediately acted upon and can merely be docketed as a cautionary petition reserved for future action if and when the three-term local official wins a fourth consecutive term. If the parties proceed to litigate without raising the prematurity or lack of cause of action as objection, a ruling can be deferred until after the cause of action accrues; if a ruling is entered, then any decreed disqualification cannot be given effect and implemented until a violation of the three-term limit rule occurs. As a last point on the matter of substitution, a candidate with a valid and subsisting CoC can only be validly substituted on the basis of a withdrawal before the elections, or by reason of death. Disqualification that is based on a breach of the three-term limit rule cannot be invoked as this disqualification can only take place after election. As in a quo warranto situation, any substitution is too late at this point. I shall consider the case on the basis of these positions. Castillos Petition is Properly a Petition for Disqualification against Ramon for Possessing some Grounds for Disqualification On the basis of my views on the effect of the three-term limit rule, I disagree with the ponencias conclusion that Castillos petition is one for the cancellation or denial of due course of Ramons CoC. I likewise so conclude after examining Castillos petition, its allegations and the grounds it invoked. As a rule, the nature of the action is determined by the allegations in the complaint or petition. The cause of action is not what the title or designation of the petition states; the acts defined or described in the body of the petition control. The designation or caption and even the prayer, while they may assist and contribute their persuasive effect, cannot also be determinative of the nature or cause of action for they are 53 not even indispensable parts of the petition. In this sense, any question on the nature of Castillos petition against Ramon cannot ignore the pertinent allegations of the petition, and they state: 4. Respondent was successively elected mayor of Lucena City in 2001, 2004, and 2007 local elections based on the records of the Commission on Elections of Lucena City and had fully served the aforesaid three (3) terms without any voluntary and involuntary interruption. xxxx 7. Respondent, knowing well that he was elected for and had fully served three (3) consecutive terms as a city mayor of Lucena, he still filed his Certificate of Candidacy for City Mayor of Lucena for this coming 10 May 2010 national and local elections; xxxx 8. Under the Constitution and existing Election laws, New Local Government Code of the Philippines, and jurisprudence the respondent is no longer entitled and is already disqualified to be a city mayor for the fourth consecutive term. [emphasis supplied] These allegations, on their face, did not raise any of the specified grounds for cancellation or denial of due course of a CoC under Sections 69 and 78 of the OEC. Specifically, Castillos petition did not allege that Ramon was a nuisance candidate or that he had com mitted a misrepresentation on a material fact in his CoC; the petition failed to allege any deliberate attempt, through material misrepresentation, to mislead, misinform or deceive the electorate of Lucena City as to Ramons qualifications for the position of Mayor. More impo rtantly, and as previously discussed, the non-possession of any disqualifying ground, much less of a potential breach of the three-term limit rule, is not among the matters of qualification or eligibility that a candidate is required to assert in his CoC. Castillos allegations simply articulate the fact that Ramon had served for three consecutive terms and the l egal conclusion that the threeterm limit rule under the Constitution and LGC 1991 disqualifies him from running for a fourth consecutive term. Under these allegations, Castillos petition cannot come within the purview of Section 78 of the OEC; Ramons st atus as a three-term candidate is a ground to disqualify him (as precautionary measure before elections) for possessing a ground for disqualification under the Constitution and the LGC, specifically, for running for the same office after having served for three continuous terms.

From the given facts and from the standards of strict legality based on my discussions above, I conclude that the COMELEC was substantially correct in treating the case as one for disqualification that is, without cancelling his CoC - in its April 19, 2010 Resolution and in ruling for disqualification, subject to my reservation about prematurity and the existence of a ripe cause of action. This reservation gathers strength in my mind as I consider that most of the developments in the case took place before the May 10, 2010 elections under the standards of Section 8, Article X of the Constitution. Brought to its logical end, this consideration leads me to conclude that while the COMELEC might have declared Ramons disqualification to be final, its declaration was ineffectual as no disqualification actually ever took effect. None could have taken place as the case it ruled upon was not ripe for a finding of disqualification; Ramon, although a three-term local official, had not won a fourth consecutive term and, in fact, could not have won because he gave way to his wife in a manner not amounting to a withdrawal. Rubys Substitution of Ramon is Invalid not because Ramons CoC was cancelled but because of its nonconformity with the Conditions Required by Section 77 of the OEC As a rule, a CoC must be filed only within the timelines specified by law. This temporal limitation is a mandatory requirement to qualify as a 54 candidate in a national or local election. It is only when a candidate with a valid and subsisting CoC is disqualified, dies or withdraws his or her CoC before the elections that the remedy of substitution under Section 77 of the OEC is allowed. Section 77 states: Section 77. Candidates in case of death, disqualification or withdrawal of another. - If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of the day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission. [italics supplied, emphasis and underscoring ours] In the present case, the grounds that would give rise to the substitution had to be present for Rubys substitution to be val id. Specifically, she had to show that either Ramon had died, had withdrawn his valid and subsisting CoC, or had been disqualified for any cause. All these are best determined by considering the antecedents of the present case. To recall: 1. On April 19, 2010, the Comelec First Division disqualified Ramon in SPA No. 09-929 (DC). The Resolution did not contain any order to deny due course or to cancel Ramons CoC; 2. On April 21, 2010, Ramon filed a Verified Motion for Reconsideration seeking a reversal of the April 19, 2010 Resolution; 3. On May 4, 2010, at exactly 9:00 a.m., Ramon filed an Ex-Parte Manifestation of the Pending Motion for Reconsideration dated May 3, 2010 praying that the COMELEC issue an "Order to NOTE the instant Manifestation and DEEM the Resolution promulgated on April 19, 2010 as final and executory"; 4. On the same day at 4:30, Ruby filed her CoC for Mayor of Lucena City in substitution of her husband, Ramon; 5. In an Order dated May 5, 2010, the COMELEC en banc issued an Order in response to Ramons Manifestation which stated: "(a) To NOTE this instant Manifestation; and (b) To consider the April 19, 2010 Resolution of the Commission First Division final and executory"; 6. On the May 10, 2010 elections, Ramon garnered the highest number of votes with 44,099 votes, while Castillo garnered only 39, 615 votes; 7. Three days after the elections or on May 13, 2010, the COMELEC en banc issued Resolution No. 8917 that gave due course to Rubys CoC. This Resolution was premised on the Memorandum of the Law Department dated May 8, 2010 which er roneously stated that Ruby filed her CoC on May 5 not May 4, 2010; and 8. On the basis of Resolution No. 8917, the City Board of Canvassers proclaimed Ruby as the duly elected mayor of Lucena City. All these, of course, will have to be viewed from the prism of the three-term limit rule. Substitution refers to an exceptional situation in an election scenario where the law leans backwards to allow a registered party to put in place a replacement candidate when the death, withdrawal or disqualification of its original candidate occurs. The question that arises under the bare provisions of Section 77 of the OEC is how the COMELEC should handle the laws given condi tions and appreciate the validity of a substitution. The approaches to be made may vary on a case-to-case basis depending on the attendant facts, but a failsafe method in an election situation is to give premium consideration not to the candidates or their parties, but to the electorates process of choice and the integrity of the elections. In other words, in a legal or factual equipoise situation, the conclusion must lean towards the integrity of the electoral process.
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Death as basis for substitution obviously does not need to be considered, thus leaving withdrawal and disqualification as grounds for the validity of Rubys substitution. On the matter of withdrawal, two significant developments could possibly serve as indicators of withdrawal and should be examined for their legal effects. The first development relates to the aftermath of the Courts ruling in Aldovino regarding the interruption of service for pu rposes of the threeterm limit rule. Although the Aldovino ruling still had to lapse to finality, Ramon almost immediately manifested before the COMELEC First Division his recognition that he was disqualified and asked for a ruling. The requested ruling, of course, was on the case that Castillo had filed. This ruling did not come until April 19, 2010 when the COMELEC First Division granted Castillos petition, to which Ramon responded with a verified motion for reconsideration. A significant aspect (although a negative one) of this development is that Ramon never indicated his clear intention to withdraw his CoC. Despite the Aldovino ruling, he only manifested his recognition that he was disqualified and had asked for a ruling on Castil los petition. To be sure, he could have made a unilateral withdrawal with or without any intervention from the COMELEC First Division. The reality, however, was that he did not; he did not withdraw either from his disqualification case nor his CoC, pursuant to Section 73 of the OEC; he opted and continued to act within the confines of the pending case. A question that may possibly be asked is whether Ramons Manifestation recognizing his disqualification can be considered a withdrawal. The short answer, in my view, is that it cannot be so considered. Withdrawal and disqualification are separate grounds for substitution under Section 77 of the OEC and one should not be confused with the other. Recognition of disqualification, too, without more, cannot be considered a withdrawal. Disqualification results from compulsion of law while withdrawal is largely an act that springs f rom the candidates own volition. Ramons obvious submission to the COMELEC First Division, by asking for a ruling, cannot in any sense be consid ered a withdrawal. The second occasion was in early May 2010 when he withdrew, through a Manifestation, his mot ion for reconsideration of the First Divisions ruling finding him disqualified for violation of the three-term limit rule. To recall, he made his ex parte manifestation of withdrawal in the morning of May 4, 2010, while his wife filed her CoC in substitution in the afternoon of the same day, on the apparent theory that his acceptance of the First Division disqualification ruling qualified her for substitution under Section 77 of the OEC. I cannot view these moves as indicative of withdrawal because the par ties main basis, as shown by their moves, was to take advantage of a final ruling decreeing disqualification as basis for Rubys substitution. Plainly, no withdrawal of the CoC was ever made and no withdrawal was also ever intended as they focused purely on the effects of Ramons disqualification. This intent is evident from their frantic efforts to secure a final ruling by the COMELEC en banc on Ramons disqualification. But neither can I recognize that there was an effective disqualification that could have been the basis for a Section 77 substitution. As repeatedly discussed above, the constitutional prohibition and the disqualification can only set in after election, when a three-term local official has won for himself a fourth term. Quite obviously, Ramon without realizing the exact implications of the threeterm limit rule opted for a disqualification as his mode of exit from the political scene. This is an unfortunate choice as he could not have been disqualified (or strictly, his disqualification could not have taken effect) until after he had won as Mayor in the May 2010 elections too late in time if the intention was to secure a substitution for Ruby. Additionally, there was no way that Ramon could have won as he had opted out of the race, through his acceptance of an ineffectual disqualification ruling, in favor of his wife, Ruby. I hark back, too, to the reason I have given on why the constitutional three-term limit rule cannot affect, and does not look back to, the candidates CoC which shou ld remain valid if all the elements of eligibility are otherwise satisfied. Whatever twists and turns the case underwent through the series of moves that Ramon and his wife made after the First Divisio ns April 19, 2010 ruling cannot erase the legal reality that, at these various points, no disqualification had ripened and became effective. To repeat, the cause for disqualification is the election of the disqualified candidate to a fourth term a development that never took place. Without a 56 disqualified candidate that Ruby was replacing, no substitution pursuant to Section 77 of the OEC could have taken place. This reality removes the last ground that would have given Ruby the valid opportunity to be her husbands substitute. To note an obvious point, the CoC that Ruby filed a week before the May 10, 2010 elections could not have served her at all as her filing was way past the deadline that the COMELEC set. To return to the immediate issue at hand and as previously discussed, a substitution under Section 73 of the OEC speaks of an exceptional, not a regular, situation in an election and should be strictly interpreted according to its terms. In the clearest and simplest terms, without a dead, withdrawing or disqualified candidate of a registered party, there can be no occasion for substitution. This requirement is both temporal and substantive. In the context of this case and in the absence of a valid substitution of Ramon by Ruby, votes for Ramon appearing in the 57 ballots on election day could not have been counted in Rubys favor. With a fatally flawed substitution, Ruby was not a candidate. In view of the invalidity of Rubys substitution, her candidacy was fatally flawed and could not have been given effect. Her CoC, standing by itself, was filed late and cannot be given recognition. Without a valid CoC, either by substitution or by independent filing, she could not have been voted for, for the position of Mayor of Lucena City. Thus, the election took place with only one valid candidate standing Castillo who should now be proclaimed as the duly elected Mayor. The ponencia justifies the Vice-Mayors succession to the office of the Mayor in this wise:

The only time that a second placer is allowed to take the place of a disqualified winning candidate is when two requisites concur, namely: (a) the candidate who obtained the highest number of votes is disqualified; and (b) the electorate was fully aware in fact and in law of that candidates disqualification as to bring such awareness within the realm of notoriety but the electorate still cast the plura lity of votes in favor of the ineligible candidate. xxx But the exception did not apply in favor of Castillo simply because the second element was absent. xxx On the other hand, Barbara Ruby was properly disqualified by the COMELEC En Banc from assuming the position of Mayor of Lucena City. She was not a substitute candidate because Ramons disqualification was confirmed only after the elections. The ponencias reasoning would have been sound had Ruby been a candidate, who for one reason or another simply cann ot assume office. The harsh legal reality however is that she never was and never became a candidate - a status which must be present before the doctrine of rejection of second placer may apply - either through the ordinary method of filing within the period allowed by law or through the extraordinary method of substitution. Rubys status is comparable to (or even worse than) a candidate whose CoC was cancelled after the elections. As previously discussed, the cancellation of a CoC signifies non-candidacy from the very start, i.e., before the elections, which entitles the "second placer" to assume office. The same result should obtain in this case. From the perspective of Vice Mayor Alcalas intervention, Ruby did not validly assume the mayoralty post and co uld not have done so as she was never a candidate with a valid CoC. To recall my earlier discussions, it is only the CoC that gives a person the status of being a candidate. No person who is not a candidate can win. Thus, Ruby despite being seated never won. In the absence of any permanent vacancy occurring in the Office of the Mayor of Lucena City, no occasion arises for the application of the law on succession under Section 44 58 59 of the Local Government Code and established jurisprudence. Thus, I dissent as the petition of Vice-Mayor Roderick Alcala should have failed. ARTURO D. BRION Associate Justice

CONCURRING AND DISSENTING OPINION MENDOZA, J.: The subject consolidated petitions for certiorari seek to annul and set aside the En Banc Resolution of the Commission on Elections (Comelec) in SPC No. 10-024, dated May 20, 2011, which, among others, ordered the respondent Vice-Mayor to succeed as Mayor of Lucena City, pursuant to Section 44 of the Local Government Code. From the records, it appears that: 1] On December 1, 2009, Ramon Y. Talaga (Ramon) and Philip M. Castillo (Castillo) filed their respective Certificates of Candidacy (CoC) before the Commission on Elections (Comelec.). 2] On December 5, 20U9, Castillo tiled the initiatory pleading, a petition, docketed as SPA No. 09-029 (DC) and entitled, "In the Matter of the Petition To Deny Due Course or to Cancel Certificate of Candidacy of Ramon Y. Talaga, Jr. as Mayor For Having Already Served Three (3) Consecutive Terms as a City Mayor of Lucena," praying as follows: WHEREFORE, premises considered, it is respectfully prayed that the Certificate of Candidacy filed by the respondent he denied due course to or cancel the same and that he be declared as a disqualified candidate under the existing Election Laws and by the provisions of the New Local Government Code." [Emphasis supplied] 3] On December 30, 2009, Ramon filed a Manifestation with Motion to Resolve SPA No. 09-029 (DC) wherein he insisted that there was no misrepresentation on his part constituting a ground for a denial of due course to his CoC or cancellation thereof, but in view 1 of the ruling in Aldovino, he acknowledged that he was indeed not eligible and disqualified to run as Mayor of Lucena City, praying that WHEREFORE, it is most respectfully prayed that the instant petition be SUBMITTED for decision and that he be declared as DISQUALIFIED to run for the position of Mayor of Lucena City in view of the new ruling laid down by the Supreme Court. [Emphasis supplied] 4] On April 19, 2010, the Comelec First Division promulgated its resolution disqualifying Ramon from running as Mayor of Lucena City in the May 10, 2010 local elections, the dispositive portion of which reads: WHEREFORE, premises considered, the instant Petition is hereby GRANTED. Accordingly, Ramon S. Talaga, Jr. is hereby DISQUALIFIED to run for Mayor of Lucena City for the 10 May 2010 National and Local Elections. [Emphases supplied] 5] On April 21, 2010, Ramon filed a Verified Motion for Reconsideration in SPA No. 09-029. 6] On May 4, 2010, at 9:00 oclock in the morning, Ramon filed an Ex Parte Manifestation of Withdrawal of the Pending Motion for Reconsideration.

7] On the same day, May 4, 2010, at 4:30 oclock in the afternoon, the wife of Ramon, Barbara Ruby C. Talaga (Barbara Ruby), filed a Certificate of Candidacy for Mayor of Lucena City, attaching thereto the Certificate of Nomination and Acceptance (CONA) issued by the Lakas-Kampi-CMD, the party that had nominated Ramon. 8] On May 5, 2010, the Comelec En Banc, in SPC No. 10-024, issued an Order declaring the April 19, 2010 Resolution disqualifying Ramon as having become final and executory, the decretal portion of which reads: ... the Commission hereby orders as follows: 1] To NOTE the instant Manifestation; and 2] To consider the April 19, 2010 Resolution of the Commission First Division final and executory. SO ORDERED. 9] On May 10, 2010, the National and Local Elections were successfully conducted. The name of Ramon remained printed on the ballots but the votes cast in his favor were counted in favor of Barbara Ruby as his substitute candidate. 10] On May 11, 2010, Castillo filed before the Board of Canvassers of Lucena City a Petition to Suspend Proclamation praying for the suspension of the proclamation of Ramon or Barbara Ruby as the winning candidate. 11] On May 12, 2010, at around 5:17 oclock in the afternoon, per City/Municipal Certificate of Canvass, Barbara Ruby was cre dited with 44,099 votes while Castillo garnered 39,615 votes. 12] On May 13, 2010, the Comelec, in Resolution No. 8917, gave due course to the CoC of Barbara Ruby as substitute candidate. 13] On the same day, May 13, 2010, the Board of Canvassers of Lucena City did not act on Castillos Petition to Suspend Proclamation and proclaimed Barbara Ruby as the winning candidate and elected Mayor of Lucena City. 14] Aggrieved, on May 20, 2010, Castillo filed his Petition (For Annulment of Proclamation of Barbara Ruby C. Talaga as the Winning Candidate for Mayor of Lucena City, Quezon) with the Comelec, which was docketed as SPC No. 10-024, arguing 1] that Barbara Ruby could not substitute Ramon because his CoC had been cancelled and denied due course; and 2] that Barbara Ruby could not be considered a candidate because the Comelec En Banc had approved her substitution three days after the elections. Hence, the votes cast for Ramon should be considered stray. 15] On June 18, 2010, Barbara Ruby filed her Comment on the Petition for Annulment of Proclamation contending that the substitution was valid on the ground that the Comelec En Banc did not deny due course to or cancel Ramons CoC, despite a declaration of disqualification as there was no finding of misrepresentation. 16] On July 26, 2010, Roderick Alcala (Alcala), the elected Vice Mayor of Lucena City filed a Motion for Leave to Admit Attached Petition in Intervention and a Petition in Intervention, asserting that he should assume the position of Mayor because Barbara Rubys substitution was invalid and Castillo lost in the elections. 17] On January 11, 2011, the Comelec Second Division dismissed the petition of Castillo and the motion to intervene of Alcala. It reasoned out, among others, that Resolution No. 8917 (allowing the substitution) became final and executory when Castillo failed to act after receiving a copy thereof. 18] Not in conformity, both Castillo and Alcala filed their respective motions for reconsideration of the January 11, 2011 Resolution of the Comelec Second Division for being contrary to law and jurisprudence. Castillo argued 1] that the determination of the candidacy of a person could not be made after the elections and then given retroactive effect; and 2] that the CoC of Ramon was in reality cancelled and denied due course which consequently barred him from being substituted as a candidate. Accordingly, he prayed that the votes cast in favor of both Ramon and Barbara Ruby be considered stray and that he be proclaimed winner, being the qualified candidate with the highest number of votes. Alcala, in advocacy of his position, argued that 1] Resolution 8917 was based on erroneous set of facts; and 2] there was no valid reason for the substitution as there was no withdrawal, disqualification or death of another candidate. Barbara Ruby, in her defense, countered that the ruling of the Comelec Second Division was in accord with law and jurisprudence and that doubts as to the validity of the substitution should be resolved in her favor as she received the mandate of the people of Lucena City. 19] On May 20, 2011, acting on the motions for reconsideration, the Comelec En Banc reversed the January 11, 2011 Resolution of the Comelec Second Division reasoning out that 1] Resolution 8917 was issued without any adversarial proceedings as the interested parties were not given the opportunity to be heard; 2] Resolution 8917 was based on erroneous set of facts because Barbara Ruby filed her Certificate of Candidacy on May 4, 2010 at 4:30 oclock in the afternoon, before the Comelec acted on Ramons withdrawal of h is motion for reconsideration on May 5, 2010, and so premature; and 3 Barbara Rubys Certificate of Candidacy was filed out of time because she was just another candidate, not a substitute.

It also ruled that Barbara Ruby being disqualified, the law on succession under Section 44 of the Local Government Code should apply. Accordingly, the Comelec En Banc decreed: WHEREFORE, judgment is hereby rendered: 1. REVERSING and SETTING ASIDE the January 11, 2011 Resolution of the Second Division; 2. GRANTING the petition-in-intervention of Roderick Alcala; 3. ANNULLING the election and proclamation of respondent Barbara C. Talaga as mayor of Lucena City and CANCELLING the Certificate of Canvass and Proclamation issued therefor; 4. Ordering respondent Barbara Ruby Talaga to cease and desist from discharging the functions of the Office of the Mayor; 5. In view of the permanent vacancy in the Office of the Mayor of Lucena City, the proclaimed Vice-Mayor is ORDERED to succeed as Mayor as provided under Section 44 of the Local Government Code; 6. DIRECTING the Clerk of Court of the Commission to furnish copies of this Resolution to the Office of the President of the Philippines, the Department of Interior and Local Government, the Department of Finance and the Secretary of the Sangguniang Panglungsod of Lucena City. Let the Department of Interior and Local Government and the Regional Election Director of Region IV of COMELEC implement this resolution. SO ORDERED. Hence, these consolidated petitions of Castillo and Barbara Ruby. In their respective petitions, both Barbara Ruby and Castillo pray, among others, that she or he be declared as the winning candidate in the May 10, 2010 mayoralty election in Lucena City. II Nature of Petition under Section 78 As the records indicate, the controversy stemmed from the initiatory pleading filed by Castillo in SPA No. 09-029 (DC) entitled, "In the Matter of the Petition To Deny Due Course or to Cancel Certificate of Candidacy of Ramon Y. Talaga, Jr. as Mayor For Having Already Served Three (3) Consecutive Terms as a City Mayor of Lucena," a petition filed under Section 78 of the the Omnibus Election Code (Batas Pambansa Blg. 881) which reads: Section 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. A certificate of candidacy is a formal requirement for eligibility to public office. Section 73 of the Omnibus Election Code provides that no person shall be eligible for any elective public office unless he files a sworn certificate of candicacy within the period fixed therein. Section 74 thereof provides that the CoC of the person filing it shall state, among others, that he is eligible for the office he seeks to run, and that the 3 facts stated therein are true to the best of his knowledge. In the case of Sinaca v. Mula, the Court had an occasion to elaborate on the nature of a CoC in this wise: A certificate of candidacy is in the nature of a formal manifestation to the whole world of the candidates political creed or lack of political creed. It is a statement of a person seeking to run for a public office certifying that he announces his candidacy for the office mentioned and that he is eligible for the office, the name of the political party to which he belongs, if he belongs to any, and his post-office address for all election purposes being as well stated. Thus, when Ramon filed his CoC before the COMELEC, he pronounced before the electorate his intention to run for the mayoralty post and declared that he was "eligible" for the said office. A petition filed under Section 78 of the Omnibus Election Code is one of two remedies by which the candidacy of a person can be 4 5 questioned. The other is a petition under Section 68. In Mitra v. Comelec, the nature of a petition under Section 78 was further explained as follows:
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Section 74, in relation to Section 78, of the Omnibus Election Code (OEC) governs the cancellation of, and grant or denial of due course to, COCs. The combined application of these sections requires that the candidates stated facts in the COC be true, under pain of the COCs denial or cancellation if any false representation of a material fact is made. To quote these provisions: SEC. 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge. xxxx SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing not later than fifteen days before the election. The false representation that these provisions mention must necessarily pertain to a material fact. The critical material facts are those that refer to a candidates qualifications for elective office, such as his or her citizenship and residence. The candidates status as a registered voter in the political unit where he or she is a candidate similarly falls under this classification as it is a requirement that, by law (the Local Government Code), must be reflected in the COC. The reason for this is obvious: the candidate, if he or she wins, will work for and represent the political unit where he or she ran as a candidate. The false representation under Section 78 must likewise be a "deliberate attempt to mislead, misinform, or hide a fact that would otherwise render a candidate ineligible." Given the purpose of the requirement, it must be made with the intention to deceive the electorate as to the would-be candidates qualifications for public office. Thus, the misrepresentation that Sec tion 78 addresses cannot be the result of a mere innocuous mistake, and cannot exist in a situation where the intent to deceive is patently absent, or where no deception on the electorate results. The deliberate character of the misrepresentation necessarily follows from a consideration of the consequences of any material falsity: a candidate who falsifies a material fact cannot run; if he runs and is elected, he cannot serve; in both cases, he can be prosecuted for violation of the election laws. [Emphases supplied] A- A Petition to Deny Due Course or to Cancel a CoC under Section 78 is different from a Disqualification Case and a Quo Warranto Case In Fermin v. Comelec, it was stressed that "a Section 78 petition ought not to be interchanged or confused with a Section 68 petition. They are different remedies, based on different grounds, and resulting in different eventualities." In the said case, it was written: To emphasize, a petition for disqualification, on the one hand, can be premised on Section 12 or 68 of the OEC, or Section 40 of the LGC. On the other hand, a petition to deny due course to or cancel a CoC can only be grounded on a statement of a material representation in the said certificate that is false. The petitions also have different effects. While a person who is disqualified under Section 68 is merely prohibited to continue as a candidate, the person whose certificate is cancelled or denied due course under Section 78 is not treated as a candidate at all. In Fermin, a petition to deny due course or to cancel a certificate of candidacy was also distinguished from a petition for quo warranto as follows: Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the lack of qualifications but on a finding that the candidate made a material representation that is false, which may relate to the qualifications required of the public office he/she is running for. It is noted that the candidate states in his/her CoC that he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional and statutory provisions on qualifications or eligibility for public office. If the candidate subsequently states a material representation in the CoC that is false, the COMELEC, following the law, is empowered to deny due course to or cancel such certificate. Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they both deal with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a "Section 78" petition is filed before proclamation, while a petition for quo warranto is filed after proclamation of the wining candidate. [Emphases in the original] Also as can be gleaned from the foregoing, it was clearly stressed in Fermin that the denial of due course to, or the cancellation of, the CoC is not based on the lack of qualifications but on a finding that the candidate made a material representation that was false. When it was stated in Fermin that the false material representation "may relate to the qualifications required of the public office he/she is running for," it simply meant that it could cover ones qualifications. It was not, however, restricted to qualifications only. When word "may" was used, it meant that it could relate to, or cover, any other material misrepresentation as to eligibility. Certainly, when one speaks of 7 eligibility, it is understood that a candidate must have all the constitutional and statutory qualifications and none of the
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disqualifications. "Eligible x x relates to the capacity of holding as well as that of being elected to an office." "Ineligibility" has been defined 10 as a "disqualification or legal incapacity to be elected to an office or appointed to a particular position." B - A person whose certificate is cancelled or denied due course under Section 78 cannot be treated as a candidate at all A cancelled certificate of candidacy cannot give rise to a valid candidacy, and much less to valid votes. Much in the same manner as a person who filed no certificate of candidacy at all and a person who filed it out of time, a person whose certificate of candidacy is cancelled or 12 denied due course is no candidate at all. The Court has been consistent on this. In Fermin, in comparing a petition under Section 78 with a petition under Section 68, it was written: "While a person who is disqualified under Section 68 is merely prohibited to continue as a candidate, the person whose certificate is cancelled or denied due course under Section 78 is not treated as a candidate at all." Thus, whether or not his CoC was cancelled before or after the election is immaterial, his votes would still be considered stray as his certificate was void from the beginning. C - A candidate disqualified by final judgment before an election cannot be voted for, and votes cast for him shall not be counted. Granting arguendo that the petition is considered as one for disqualification, still, he cannot be voted for and the votes for him cannot be counted if he was disqualified by final judgment before an election. In Section 6 of R.A No. 6646 or The Electoral Reforms Law of 1987, it is clearly provided that a candidate disqualified by final judgment before an election cannot be voted for, and votes cast for him shall not be 13 counted. This provision of law was applied in the case of Cayat v. Comelec, where it was written: The law expressly declares that a candidate disqualified by final judgment before an election cannot be voted for, and votes cast for him shall not be counted. This is a mandatory provision of law. Section 6 of Republic Act No. 6646, The Electoral Reforms Law of 1987, states: 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. Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when the disqualification becomes final before the elections, which is the situation covered in the first sentence of Section 6. The second is when the disqualification becomes final after the elections, which is the situation covered in the second sentence of Section 6. The present case falls under the first situation. Section 6 of the Electoral Reforms Law governing the first situation is categorical: a candidate disqualified by final judgment before an election cannot be voted for, and votes cast for him shall not be counted. The Resolution disqualifying Cayat became final on 17 April 2004, way before the 10 May 2004 elections. Therefore, all the 8,164 votes cast in Cayats favor are stray. Cayat was never a candidate in the 10 May 2004 elections. Palilengs proclamation is proper because he was the sol e and only candidate, second to none. D - A candidate whose CoC has been cancelled or denied due course cannot be substituted. Section 77 of the Omnibus Election Code enumerates the instances wherein substitution may be allowed: They are death, disqualification and withdrawal of another. A candidate whose CoC has been cancelled or denied due course cannot be substituted. This was the clear ruling 15 in Miranda v. Abaya, where it was written: It is at once evident that the importance of a valid certificate of candidacy rests at the very core of the electoral process. It cannot be taken lightly, lest there be anarchy and chaos. Verily, this explains why the law provides for grounds for the cancellation and denial of due course to certificates of candidacy. After having considered the importance of a certificate of candidacy, it can be readily understood why in Bautista we ruled that a person with a cancelled certificate is no candidate at all. Applying this principle to the case at bar and considering that Section 77 of the Code is clear and unequivocal that only an official candidate of a registered or accredited party may be substituted, there demonstrably cannot be any possible substitution of a person whose certificate of candidacy has been cancelled and denied due course. [Emphases supplied] III An assiduous assessment of the factual situation leads to the conclusion that Petitioner Castillo should have been proclaimed mayor-elect of Lucena City I concur with the majority that Ramon, having served as mayor of Lucena City for three consecutive terms, was ineligible to run again for the same position in the May 10, 2012 election as his candidacy was proscribed by no less than the Constitution. Section 8, Article X of the 1987 Constitution provides:
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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. In line therewith, Section 43 of the Local Government Code provides: Sec. 43. Term of Office. x x x. (b) No local elective official shall serve for more than three consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected. In Lonzanida v. Commission on Elections, the Court held that the two conditions for the application of the disqualification must concur: 1) that the official concerned has been elected for three consecutive terms in the same local government post; and 2) that he has fully served 17 three consecutive terms. In Aldovino v. Comelec, the Court stressed that "preventive suspension, by its nature, does not involve an effective interruption of a term and should therefore not be a reason to avoid the three-term limitation." Contending that Ramon was ineligible and must be disqualified to run again as Mayor, Castillo filed before the Comelec a petition entitled, "In the Matter of the Petition To Deny Due Course or to Cancel Certificate of Candidacy of Ramon Y. Talaga, Jr. as Mayor For Having Already Served Three (3) Consecutive Terms as a City Mayor of Lucena," praying "that the Certificate of Candidacy filed by the respondent be denied due course to or cancel the same and that he be declared as a disqualified candidate under the existing Election Laws and by the provisions of the New Local Government Code." Evidently, the petition filed was pursuant to Section 78 of the Omnibus Election Code. On December 30, 2009, Ramon filed a Manifestation with Motion to Resolve SPA No. 09-029 (DC) wherein he acknowledged that he was indeed not eligible and disqualified to run as Mayor of Lucena City. On April 19, 2010, the Comelec First Division promulgated its Resolution "granting the petition of Castillo and disqualifying Ramon to run for Mayor of Lucena City for the May 10, 2010 National and Local Elections." Specious, if not ludicrous, is the argument that there was nothing in the resolution from which it can be deduced that the Comelec First Division cancelled, or denied due course to, Ramons CoC. Such argument strains or tasks ones credulity too much. Common sen se dictates that when the Comelec First Division granted the petition of Castillo, it, in effect, granted his prayer which reads: WHEREFORE, premises considered, it is respectfully prayed that the Certificate of Candidacy filed by the respondent be denied due course to or cancel the same and that he be declared as a disqualified candidate under the existing Election Laws and by the provisions of the New Local Government Code." [Emphasis supplied] Needless to state, the Comelec considered Ramon as having made material misrepresentation as he was manifestly not eligible, having served as mayor of Lucena City for three consecutive terms. It could not have been otherwise. A candidate who states in his CoC that he is "eligible," despite having served the constitutional limit of three consecutive terms, is clearly committing a material misrepresentation, warranting not only a cancellation of his CoC but also a proscription against substitution. As held in Bautista, Miranda, Gador, and Fermin, a person whose certificate is cancelled or denied due course under Section 78 is not treated as a candidate at all and his votes will be considered as stray as his certificate was void from the beginning. Also in 22 Cayat, assuming that this is a disqualification case, the rule is that a candidate disqualified by final judgment before an election cannot be voted for, and votes cast for him shall not be counted. Accordingly, when his CoC was denied due course or cancelled, Ramon was never considered a candidate at all from the beginning. Indeed, on April 21, 2010, Ramon filed a Verified Mo tion for Reconsideration, but on May 4, 2010, at 9:00 oclock in the morning, he filed an Ex Parte Manifestation of Withdrawal of the Pending Motion for Reconsideration. His motion, in effect, rendered the April 19, 2010 Resolution of the Comelec First Division as final and executory pursuant to Section 13, Rule 18 of the 1993 COMELEC Rules of Procedure, which reads: Sec. 13. Finality of Decisions or Resolutions. - (a) In ordinary actions, special proceedings, provisional remedies and special reliefs; a decision or resolution of the Commission en banc shall become final and executory after thirty (30) days from its promulgation. (b) In Special Actions and Special Cases, a decision or resolution of the Commission en banc shall become final and executory after five (5) days from its promulgation unless restrained by the Supreme Court. (c) Unless a motion for reconsideration is seasonably filed, a decision or resolution of a Division shall become final and executory after the lapse of five (5) days in Special actions and Special cases and after fifteen (15) days in all other actions or proceedings, following its promulgation. The reason is that a motion for reconsideration once withdrawn has the effect of cancelling such motion as if it was never filed. In Rodriguez 23 v. Aguilar, it was written:
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Upon the withdrawal by respondent of his Motion for Reconsideration, it was as if no motion had been filed. Hence, the Order of the trial court under question became final and executory 15 days from notice by the party concerned. In the same manner that the withdrawal of an appeal has the effect of rendering the appealed decision final and executory, the withdrawal of the Motion for Reconsideration in the present case had the effect of rendering the dismissal Order final and executory. By then, there was no more complaint that could be amended, even for the first time as a matter of right. Although the April 19, 2010 Resolution became final and executory on April 24, 2010, it has no effect on Ramons candidacy or his purported substitute because his certificate was void from the beginning. The date of the finality of the denial of due course or cancellation of a CoC has 24 25 26 27 no controlling significance because, as consistently ruled in Bautista, Miranda, Gador, and Fermin, "the person whose certificate is cancelled or denied due course under Section 78 is not treated as a candidate at all." No substitution in case of cancellation or denial of due course of a CoC As Ramon was never a candidate at all, his substitution by Barbara Ruby was legally ineffectual. This was the clear ruling in the case of 28 Miranda v. Abaya, where it was ruled that "considering that Section 77 of the Code is clear and unequivocal that only an official candidate of a registered or accredited party may be substituted, there demonstrably cannot be any possible substitution of a person whose certificate of candidacy has been cancelled and denied due course." There being no valid substitution, the candidate with the highest number of votes should be proclaimed as the duly elected mayor As there was no valid substitution, Castillo, the candidate with the highest number of votes is entitled to be, and should have been, proclaimed as the duly elected mayor. The reason is that he is the winner, not the loser. He was the one who garnered the highest number of votes among the recognized legal candidates who had valid CoCs. Castillo was not the second placer. He was the first placer. On this score, I have to digress from the line of reasoning of the majority and register my dissent. The ruling in Cayat is applicable because, although the petition therein was for disqualification, the CoC of Cayat was cancelled. At any rate, even granting that it is not exactly at all fours, the undisputed fact is that Castillos petition is one under Section 78. That being the ca se, the 29 30 31 32 applicable rule is that enunciated in in Bautista, Miranda, Gador, and Fermin - "the person whose certificate is cancelled or denied due course under Section 78 is not treated as a candidate at all." The votes cast for him and those for his purported substitute could only be considered as stray and could not be counted. The Second Placer Doctrine The second placer doctrine applies only in case of a vacancy caused by a disqualification under Section 12 and Section 68 of the OEC and Section 40 of the LGC or quo warranto petition under Section 253. When a winning candidate is disqualified under Section 12 and Section 68 of the OEC and Section 40 of the LGC or unseated under Section 253, a vacancy is created and succession under Section 44 of the the Local 33 Government Code becomes operable. Section 44 provides: CHAPTER II Vacancies and Succession 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 governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice-governor, mayor, or vice-mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice-governor, mayor or vice-mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein. (b) If a permanent vacancy occurs in the office of the punong barangay, the highest ranking sanggunian barangay member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the punong barangay. (c) A tie between or among the highest ranking sanggunian members shall be resolved by the drawing of lots. (d) The successors as defined herein shall serve only the unexpired terms of their predecessors. For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office.

For purposes of succession as provided in the Chapter, ranking in the sanggunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election. As stated therein, one of the causes for a vacancy is when a winning candidate fails to qualify or is disqualified. The vacancy is created when a first placer is disqualified after the elections. This is very clear because before an election, there is no first placer to speak of. As the CoC of Ramon was cancelled, he was not a candidate at all. As he was not a candidate, he could not be considered a first placer. The first placer was the bona fide candidate who garnered the highest number of votes among the legally recognized candidates Castillo. As Ramon was not a candidate, his purported substitute, Barbara Ruby, was not a bona fide candidate. There is, therefore, no vacancy, the only situation which could start the ball rolling for the operation of the rule of succession under Rule 44 of the Local Government Code. Granting arguendo that Castillo was the second placer, the doctrine would still not apply Granting arguendo that Castillo was a second placer, the rejection of the second placer doctrine, first enunciated in Labo v. Comelec, would still not apply in this situation. In Labo and similarly situated cases, it was ruled that "the subsequent disqualification of a candidate who obtained the highest number of votes does not entitle the candidate who garnered the second highest number of votes to be declared the winner." The Labo ruling, however, is not applicable in the situation at bench for two reasons: First, Ramon was not a candidate as he was disqualified by final judgment before the elections; and Second, the situation at bench constitutes a clear exception to the rule as stated in 35 36 37 Labo v. Comelec, Cayat v. Comelec and Grego v. Comelec. On the first ground, in Cayat, it was ruled that Labo is applicable only when there is "no final judgment of disqualification before the elections." Specifically, Cayat reads: Labo, Jr. v. COMELEC, which enunciates the doctrine on the rejection of the second placer, does not apply to the present case because in Labo there was no final judgment of disqualification before the elections. The doctrine on the rejection of the second placer was applied in Labo and a host of other cases because the judgment declaring the candidates disqualification in Labo and the other cases ha d not become final before the elections. To repeat, Labo and the other cases applying the doctrine on the rejection of the second placer have one common essential condition the disqualification of the candidate had not become final before the elections. This essential condition does not exist in the present case. [Emphases supplied] In this case, the cancellation of Ramons CoC because of his disqualification became final before the May 10, 2010 National a nd Local Elections. The only other instance that a second placer is allowed to be proclaimed instead of the first placer is when the exception laid down in Labo v. Comelec, Cayat v. Comelec and Grego v. Comelec is applicable. In Grego, it was held that "the exception is predicated on the concurrence of two assumptions, namely: (1) the one who obtained the highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate." In this case, the two assumptions have been satisfied: 1] the cancellation of Ramons CoC became final before the May 10, 201 0 National and Local Elections and 2] the electorate was conscious of the circumstances sur rounding Ramons candidacy and subsequent disqualification. The fact that Ramon was a renowned political figure in Lucena City, owing to his three (3) consecutive terms as mayor therein, cannot be denied. Verily, the people of Lucena City were fully aware of the circumstances of his candidacy, but still voted for Ramon despite his notorious ineligibility for the post. The gratuitous presumption that the votes for Ramon were cast in the sincere belief that he was a qualified candidate is negated by the electorates awareness that Ramon had long-served as mayor of the city for almost a decade. This cannot be classified as an innocuous mistake because the proscription was prescribed by the Constitution itself. Indeed, voting for a person widely known as having reached the maximum term of office set by law was a risk which the people complacently took. Unfortunately, they misapplied their franchise and squandered their votes when they supported the purported substitute, Barbara Ruby. Thus, the said votes could only be treated as stray, void, or meaningless. In view of all the foregoing, I vote that the petition of Barbara Ruby be DENIED and the petition of Castillo be GRANTED. JOSE CATRAL MENDOZA Associate Justice
34

DISSENTING OPINION ABAD, J.:

I must disagree with the majority opinion penned by Justice Lucas P. Bersamin. The Facts and the Case On December I, 2009 Ramon Talaga and Philip Castillo filed their respective certificates of candidacy (COC) for the position of mayor of 1 2 Lucena City in the scheduled May 10, 2010 elections. Four days later on December 5, 2009 Castillo filed a petition before the Commission of Elections (COMELEC) for denial or cancellation of Ramon Talaga's COC, alleging that the latter had already served three consecutive 3 terms as mayor and was, consequently, disqualified to run for another term. Ramon countered that the three-term limit rule did not apply to him since the Sandiganbayan preventively suspended him from office during 4 his second and third terms in connection with Criminal Case 27738. In support of his contention, Ramon cited the COMELEC resolution in 5 Aldovino v. Asilo which held that the terms during which an elected official was preventively suspended should not be counted for purposes of applying the three-term limit rule. Parenthetically, the cited COMELEC resolution was still pending consideration by the Supreme Court in 6 G.R. 184836, entitled "Aldovino, Jr. v. Commission on Elections." Eventually, on December 23, 2009 the Supreme Court reversed and set aside the COMELEC resolution in Aldovino that Ramon 7 invoked. The Court held that preventive suspension does not constitute interruption of a term or loss of office. Such suspension amounts to a mere temporary incapacity of an elected official to perform the service demanded by his office. Thus, preventive suspension is not a valid ground for avoiding the three-term limit rule. In view of the Supreme Court decision in Aldovino, on December 30, 2009 Ramon filed with the COMELEC a manifestation with motion to 8 resolve, conceding the fact of his disqualification for a fourth term. Acting on his motion, on April 19, 2010 the COMELEC First Division 9 issued a resolution, granting Castillos petition and disqualifying Ramon. Ramon filed a motion for reconsideration of the COMELEC First Divisions April 19, 2010 resolution but, before the COMELEC En Banc 11 could act on his motion, he filed at 9:00 a.m. on May 4, 2010 an ex parte manifestation withdrawing the motion. At 4:30 p.m. on the same date, Barbara Ruby Talaga (Ruby) filed a COC for mayor of Lucena City in substitution of her husband Ramon. She attached a Certificate of 12 Nomination and Acceptance (CONA) from Lakas-Kampi-CMD, the party that nominated Ramon. Meanwhile, acting on Ramons ex parte manifestation, the COMELEC En Banc issued an order on May 5, 2010, declaring the Divisions April 13 19, 2010 resolution that disqualified him final and executory. Three days later or on May 8, 2010, the COMELEC Law Department wrote a 14 memorandum to the COMELEC En Banc, recommending that Rubys COC be given due cour se. In the meantime, the automated elections took place two days later on May 10, 2010. Inevitably, although it was Ramons name that was on the pre-printed ballot, the votes cast for that name were counted for Ruby, his substitute candidate. She got 44,099 votes as against Castillos 39,615 votes. Castillo promptly filed a petition before the City Board of Canvassers (CBOC) asking for the suspension of Rubys proclamation on the 15 ground that the issue of her substitution of her husband was still pending before the COMELEC. As it happened, acting on the COMELEC Law Departments memorandum, on May 13, 2010 the COMELEC En Banc issued Resolution 8917, giving due course to Rubys COC and CONA and directing her inclusion in the certified list of candidates. In view of th is, the CBOC 16 proclaimed Ruby winner in the mayoralty race. On May 20, 2010 Castillo filed with the COMELECs Second Division a petition for annulment of Rubys proclamation in SPC 10 -024, alleging 17 that she could not substitute Ramon, whose COC had been cancelled and denied due course. Citing Miranda v. Abaya, Castillo pointed out the denial or cancellation of Ramons COC made it impossible for Ruby to substitute him since, to begin with, he did not have a valid candidacy. And Ruby could not be considered a candidate since the COMELEC approved her substitution three days after the elections. 18 Castillo concluded that the votes for Ramon should be considered stray. In her comment on the petition before the COMELEC, Ruby insisted that she validly substituted her husband since the COMELEC En Banc in fact approved through Resolution 8917 its Law Departments finding that Ramon was disqualified. The En Banc had no occasion to deny due course to or cancel Ramons COC. Notably, Castillo failed to appeal Resolution 8917. Further, the COMELEC First Division s April 19, 2010 resolution merely declared Ramon disqualified from running for a fourth term. It made no finding that he committed misrepresentation, the ground for denial or cancellation of his COC. Ruby also insisted that the COMELEC did not have to approve her substitution of Ramon since the law even allowed a substitute to file his COC before the Board of Election Inspectors (BEI) if the cause for substitution occurs immediately prior to election day. Section 12 of Republic Act (R.A.) 9006 is also explicit that, in case of valid substitution, the rule considering votes cast for a substituted candidate as stray votes shall not apply if the substitute candidate has the same family name as the one he replaces. Thus, votes cast for Ramon were properly counted in her favor. On July 26, 2010 respondent Roderick A. Alcala (Alcala), the elected vice-mayor of Lucena City, sought to intervene in the case. He claimed that, since Rubys substitution was invalid and Castillo clearly lost the elections, he should assume the post of mayor under the rules of 20 electoral succession. In a resolution dated January 11, 2011, the COMELECs Second Division dismissed Castillos petition and Alcalas petition -in-intervention. It held, first, that COMELEC En Bancs Resolution 8917, which had become final and executory, already settled the issue of Rubys
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substitution; second, that the Miranda v. Abaya ruling did not apply since Castillos petition cited no material misrepresentation that could be ground for cancellation of Ramons COC; and, third, the Omnibus El ection Code does not require the COMELEC to first approve a substitution before it can take effect. Upon Castillo and Alcalas motion for reconsideration, however, on May 20, 2011 the COMELEC En Banc issued a resolution, reversing the Second Divisions ruling. The En Banc held a) that Resolution 8917 could not attain finality since the COMELEC issued it mere ly as an incident of its ministerial duty to receive COCs of substitute candidates; and b) that COMELEC issued Resolution 8917 without hearing the interested parties on the issue of substitution. Further, the COMELEC En Banc found that Resolution 8917 was based on the wrong facts. Ruby filed her COC at 4:30 p.m. on May 4, 2010, not on May 5 as the resolution stated. The COMELEC resolved to disqualify Ramon with finality only on May 5. Consequently, Ruby could not have properly substituted Ramon; she simply became an additional candidate who filed her COC out of time. Thus, said the En Banc, Vice-Mayor Alcala should succeed to the position pursuant to Section 44 of the Local Government Code. Chairman Sixto S. Brillantes, Jr. dissented from the majority. Ruby and Castillo assailed the COMELEC En Bancs resolutio n via these consolidated petitions for certiorari and prohibition. On June 21, 24 2011 the Court issued a status quo ante order in G.R. 196804. Issues Presented Was Ramon merely disqualified from running for mayor or was his COC in fact cancelled or denied due course? Did Ruby validly substitute Ramon as candidate for mayor of Lucena City? Discussion There are two remedies available to prevent a candidate from running in an election: a petition for disqualification, and a petition to deny due course to or cancel a COC. The majority holds that, in resolving the case before it, the COMELEC had in fact denied due course to and cancelled Ramons COC. I disagree. Although Castillo denominated his petition as one for cancellation or denial of due course to Ramons COC and sought the same relief, it did not raise any of the specified grounds for such action under Sections 69 and 78 of the Omnibus Election Code that read: Sec. 69. Nuisance candidates. The Commission may motu proprio or upon verified petition of an interested party, refuse to give due course to or cancel a certificate of candidacy if it is shown that said certificate has been filed to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate. xxxx Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. (Emphasis supplied) Section 69 refers to nuisance candidates. Section 78, on the other hand, treats of material misrepresentation in the COC. Castillos petition made no claim that Ramon was a nuisance candidate or that he made some material misrepresentation in his COC. All that the petition raised against Ramons candidacy is the fac t that he had already served three consecutive terms as mayor. Castillo of course points out that by filing a COC for mayor after he had already served three consecutive terms, Ramon actually misrepresented the fact of his eligibility for that office, knowing that it was not the case. But this argument is unavailing because at the time 25 Ramon filed his COC the COMELECs official stand, supported by this Courts decision in Borja, Jr. v. Commission on Elections , was that the terms during which an elected official was preventively suspended should not be counted for purposes of applying the three-term limit. It was only on December 23, 2009, nearly a month after Ramon filed his COC, that the Supreme Court reversed in Aldovino, Jr. v. Commission on Elections the election bodys official stand. Thus, it cannot be said that Ramon knowingly misrepresented his eligibility when he filed his COC. While Castillo denominated his petition as one to deny due course to or cancel Ramons COC, and prayed for such remedies, the basic rule is that the nature of an action is governed by the allegations in the petition, not by its caption or prayer. We cannot rely simply on the fact that the COMELEC resolution granted the petition without making any qualifications. A closer reading of the resolution will show that Ramon was merely being disqualified for having served three consecutive terms. It made no mention of Ramons COC as having been cancelled or denied due course, and indeed gave no grounds which would justify such a result. The ponencia cites
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Miranda v. Abaya to justify its stand, but fails to note that in Miranda the Court found that there was blatant misrepresentation, which is in clear contrast to this case. On the issue of substitution, the law specifically provides that a candidate who has been disqualified for any cause may be substituted by another. Section 77 of the Omnibus Election Code (Batas Pambansa 881) states: Sec. 77. Candidates in case of death, disqualification or withdrawal. If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. x x x (Emphasis supplied) Castillo cites Miranda v. Abaya as justification for rejecting the substitution of Ramon by Ruby. But the substitution that the Court did not allow in Miranda is the substitution of a candidate whose COC has been ordered cancelled on the grounds enumerated in Sections 69 and 78 of the Omnibus Election Code. The reasoning is that it is not possible to substitute such a person since he cannot be considered a candidate at all. Substitution presupposes the existence of a candidate to be substituted. Miranda recognized that it is possible for a disqualified candidate to have a valid COC since the grounds for disqualification are distinct from the grounds for canceling or denying due course to a COC under Sections 69 and 78 of the Omnibus Election Code. Thus, it does not follow that a disqualified candidate necessarily filed an invalid COC. A disqualified candidate whose COC was neither canceled nor denied due course may be substituted under the proper circumstances provided by law. Going to another point, it will be recalled that the COMELEC First Division disqualified Ramon from running for mayor on April 19, 2010 upon Castillos petition. Ramon filed a motion for reconsideration which went up to the COMELEC En Banc but at 9:00 a.m. on May 4, 2010 he filed an ex parte manifestation withdrawing his motion for reconsideration. In the afternoon of the same day, Ruby filed her COC, admittedly before the COMELEC En Banc could act on Ramons withdrawal of his motion for reconsideration. Only on the following day, May 5, did the 28 COMELEC En Banc acknowledge the withdrawal and considered the First Divisions April 19, 2010 resolution final and executory. The Office of the Solicitor General (OSG) joined Alcala and Castillo in claiming that Ruby did not validly substitute Ramon because at the time that she filed her COC, the COMELEC had not yet disqualified Ramon by final judgment as required by Section 77 of the Omnibus Election Code. But Ramons withdrawal of his motion for reconsideration in the morning of May 4, 2010 rendered the COMELEC First Divisions April 19, 29 2010 resolution final and executory, even without the En Bancs formal action. The Court held in Rodriguez, Jr. v. Aguilar, S r. that a motion for reconsideration, once withdrawn, has the effect of canceling such motion as if it were never filed. The consequence of this is that the decision subject of the withdrawn motion for reconsideration ipso facto lapses into finality upon the expiration of period for appeal. Thus, in accordance with COMELEC Rules, the April 19, 2010 resolution became final and executory five days from its promulgation or on April 24, 30 2010. The May 5, 2010 COMELEC En Banc resolution merely confirmed the final and executory nature of the First Divisions April 19, 2010 resolution. As correctly observed by Chairman Brillantes in his dissent, the withdrawals effectivity c annot be made to depend on COMELEC approval because, if such were the case, substitution of candidates may be frustrated by either the commissions delay or ina ction. Castillo claims that, for the substitution of a candidate to be effective, the COMELEC must approve the same on or before election 31 day. Here, the COMELEC En Banc issued Resolution 8917 which approved Rubys COC on May 13, 2010 or three days after the elections. But no law makes the effectivity of a substitution hinge on prior COMELEC approval. Indeed, it would be illogical to require such prior approval since the law allows a substitute candidate to file his COC even up to mid-day of election day with any board of election inspectors in the political subdivision where he is a candidate. Surely, this rules out the possibility of securing prior COMELEC approval of the substitution. COMELEC Resolution 8917, which gave due course to Rubys COC and dire cted her inclusion in the certified list of candidates, amounted to a mere formality since the substitution took effect when she filed her COC and the required CONA. Finally, I would like to voice my concern regarding Justice Arturo D.Brions view on the a pplicability of the three-term limit rule as a ground for disqualification. In his separate opinion, Justice Brion opines that a candidate who has already served three consecutive terms can only be disqualified after he has been proclaimed as the winner for fourth term. His theory is that the Constitution merely prohibits an official from serving more than three consecutive terms; it does not prohibit him from running for a fourth term. Such an interpretation, however, would cause confusion in the polls and make a mockery of the election process. It robs qualified candidates of the opportunity of being elected in a fair contest among qualified candidates. The candidacy of one who has already served three consecutive terms is worse than that of a nuisance candidate. Election laws should be interpreted in such a way as to best determine the will of the electorate, not to defeat it. The Supreme Court has on occasion upheld the disqualification of candidates who have already served three consecutive terms from running for another. Indeed in Aldovino, penned by no other than Justice Brion himself, the dispositive portion read: "The private respondent Wilfredo F. Asilo is declared DISQUALIFIED to run, and perforce to serve, as Councilor of Lucena City for a 32 prohibited fourth term." (Emphasis supplied) Thus, while Justice Brion likewise concludes that the action before the COMELEC was a petition for disqualification and not for the denial or cancellation of his COC, I cannot entirely agree with his reasoning.
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WHEREFORE, I vote to GRANT the petition of Barbara Ruby Talaga in G.R. 196804, and DISMISS the petition of Philip M. Castillo in G.R. 197015 for lack of merit. ROBERTO A. ABAD Associate Justice

sEPARATE OPINION REYES, J.: I concur with the ponencias conclusion that Section 44 of the Local Government Code (LGC) should be applied in filing the pe rmanent vacancy created in the office of the mayor. However, I hold a different view on the nature of the petition filed to challenge of Ramon Talaga (Ramon). The petition filed against Ramon is one for disqualification and not for cancellation of certificate of candidacy (COC). It is well to remember that Philip Castillo (Castillo) challenged Ramons candidacy by filing a petition which seeks to deny due course or cancel the COC of the latter on the ground that he already served three (3) consecutive terms as City Mayor of Lucena. I am of the view that the petition must be treated as one for disqualification since the ground used to support the same, i.e. the violation of the three-term limit, is a disqualifying circumstance which prevents a candidate from pursuing his candidacy. Indeed, the violation of the three-term limit is not specifically enumerated as one of the grounds for the disqualification of a candidate under Sections 12 and 68 of the Omnibus Election Code (OEC) or Section 40 of the LGC. Similarly, however, the same ground is not particularly listed as a ground for petition for cancellation of COC under Section 78 of the OEC, in relation to Section 74 thereof. The mentioned provisions read: Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. Sec. 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge. The debate in the categorization of the violation of the three-term limit stemmed from the statement of the candidate in his COC that "he is eligible to the office he seeks to be elected to." The ponencia took this statement to embrace the candidates express declar ation that he had not served the same position for three (3) consecutive terms. With all due respect, I believe it is reading beyond the plain meaning of the statement. The COC is a declaration by the candidate of his eligibility specifically that he possesses all the qualifications required by the office. The candidate is, in effect, declaring that he possesses the minimum or basic requirements of the law for those intending to run for public office. These requirements are stated in the following provisions of the Constitution and the LGC: Sections 3 and 6 of Article VI of the Constitution: Sec. 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. Sec. 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines, and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election. Sections 2 and 3 of Article VII of the Constitution: Sec. 2. No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election.

Sec. 3. There shall be a Vice-President who shall have the same qualifications and term of office and be elected with and in the same manner as the President. He may be removed from office in the same manner as the President. xxxx Section 39 of the LGC: Sec. 39. Qualifications. - (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. xxxx (c) Candidates for the position of Mayor or Vice-Mayor of independent component cities, component cities, or municipalities must be at least twenty-one (21) years of age on election day. Basically, the qualifications for running for public office relate to age, residence, citizenship and status as registered voter. These facts are material as they are determinative of the fitness of the candidate for public office. In imposing these qualifications, the law seeks to confine the right to participate in the electoral race to individuals who have reached the age when they can seriously reckon the significance of the responsibilities they wish to assume and who are, at the same time, familiar with the current state and pressing needs of the community. Thus, when a candidate declares in his COC that he is eligible to the office for which he seeks to be elected, he is attesting to the fact that he possesses all the qualifications to run for public office. It must be deemed to refer only to the facts which he expressly states in his COC, and not to all other facts or circumstances which can be conveniently subsumed under the term "eligibility" for the simple reason that they can affect ones status of candidacy. To hold the contrary is to stretch the concept of "eligibility" and, in effect, add a substant ial qualification before an individual may be allowed to run for public office. On the other hand, the grounds for disqualification pertain to acts committed by an aspiring local servant, or to a circumstance, status or condition which renders him unfit for public service. Possession of any of the grounds for disqualification forfeits the candidate of the right to participate in the electoral race notwithstanding the fact he has all the qualifications required under the law for those seeking an elective post. The violation of the three-term limit is a circumstance or condition which bars a candidate from running for public office. It is thus a disqualifying circumstance which is properly a ground for a petition for disqualification. Section 44 of the LGC was properly applied in filling the permanent vacancy in the office of the mayor. I agree with the ponencias conclusion that Roderick Alcala (Alcala), the duly-elected Vice-Mayor should succeed to the office of the mayor. Section 44 of the LGC clearly states: Sec. 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 governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor. x x x. The Commission on Elections (COMELEC) en banc affirmed Ramons disqualification on May 5, 2010. This eventuality could have g iven Castillo, the candidate who received the second highest number of votes, the right to be proclaimed to the office of the mayor. However, it must be noted that the COMELEC gave due course to Barbara Ruby Talagas (Barbara) COC as substitute candidate for R amon and was even proclaimed Mayor of Lucena City. It was only after the elections that a petition was filed to challenge Barbaras eligib ility and was ruled upon by the COMELEC. Specifically, on January 11, 2011, the COMELEC Second Division dismissed the petition and the petition-inintervention filed by Alcala. However, on May 20, 2011, the COMELEC en banc issued a Resolution, reversing the ruling of the Second Division, the dispositive portion of which reads as follows: WHEREFORE, judgment is hereby rendered: 1. REVERSING and SETTING SIDE the January 11, 2011 Resolution of the Second Division; 2. GRANTING the petition-in-intervention of Roderick A. Alcala; 3. ANNULLING the election and proclamation of respondent Barbara C. Talaga as mayor of Lucena City and CANCELLING the Certificate of Canvass and Proclamation issued therefore; 4. Ordering respondent Barbara Ruby Talaga to cease and desist from discharging the functions of the Office of the Mayor; 5. In view of the permanent vacancy in the Office of the Mayor of Lucena City, the proclaimed Vice-Mayor is ORDERED to succeed as Mayor as provided under Section 44 of the LGC;

xxxx Upon the finality of the foregoing resolution, a permanent vacancy was created in the office of the mayor which therefore must be filled in accordance with Section 44 of the LGC. Castillo, the candidate who received the second highest number of votes, cannot be deemed to have won the elections. It is well-settled that the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office. The votes intended for the disqualified candidate 1 should not be considered null and void, as it would amount to disenfranchising the electorate in whom sovereignty resides. The lone 2 instance when the second placer can take the stead of a disqualified candidate was pronounced in Labo v. COMELEC, viz: If the electorate fully aware in fact and in law of a candidates disqualification so as to bring s uch awareness within the realm of notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In such case, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected. Based on the circumstances obtaining in this case, Barbaras disqualification was not notoriously known in Lucena City si nce the COMELEC was only able to rule on her disqualification after the elections. Thus, during the election day, the electorate reasonably assumed that Barbara is a qualified candidate and that the votes they cast in her favor will not be misapplied. Little did they know that the candidate they voted for will eventually be disqualified and ousted out of office. In view of the foregoing, I vote to DISMISS the petitions. BIENVENIDO L. REYES Associate Justice

G.R. No. 189034 Martines vs electoral tribunal This petition for certiorari under Rule 65 seeks to nullify the Decision
[1]

dated May 28, 2009 of the House of Representatives Electoral

Tribunal in HRET Case No. 07-035 dismissing the election protest and declaring private respondent as the duly elected Representative of the Fourth Legislative District of Cebu, and the Resolution
[2]

dated July 30, 2009 denying petitioner's motion for reconsideration thereof. The Facts

In the May 14, 2007 elections, petitioner Martinez and private respondent Salimbangon were among the candidates for Representative in the Fourth Legislative District of Cebu Province. On March 29, 2007, Edilito C. Martinez, a resident of Barangay Tambongon, DaanBantayan, Cebu, filed his certificate of candidacy for the same position. On April 3, 2007, Martinez filed a petition to declare Edilito C. Martinez a nuisance candidate. However, the Commission on Elections Second Division issued its Resolution declaring Edilito C. Martinez a nuisance candidate only on June 12, 2007 or almost one (1) month after the elections. On July 9, 2007, Salimbangon was proclaimed winner in the congressional elections for the Fourth Legislative District of Cebu on the basis of official results showing that he garnered sixty-seven thousand two hundred seventy-seven (67,277) votes as against Martinez who garnered sixty-seven thousand one hundred seventy-three (67,173) votes, or a difference of one hundred four (104) votes. Martinez filed an Election Protest Ad Cautelam on July 18, 2007 and on July 26, 2007, the HRET granted his motion to convert the same into a Regular Protest of all one thousand one hundred twenty-nine (1,129) precincts of the Fourth Legislative District of Cebu. The election protest is based on three hundred (300) ballots more or less with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative which the Board of Election Inspectors (BEI) did not count for Martinez on the ground that there was another congressional candidate (Edilito C. Martinez) who had the same surname. Martinez further alleged that he lost several thousand votes as a result of incorrect appreciation of ballots not counted in his favor while clearly marked ballots, groups of ballots which appeared to have been prepared by one (1) person, individual ballots which appeared to have been prepared by two (2) or more persons, and fake and unofficial ballots were read and counted in favor of Salimbangon. He also claimed that the votes reflected in the election returns were unlawfully [4] increased in favor of Salimbangon while votes in his favor were unlawfully decreased. Salimbangon filed his Answer with Counter-Protest stating that the Minutes of Voting (MOV) inside the ballot boxes in all the protested precincts contain no recorded objections regarding straying of votes claimed by Martinez, and that it was very seldom, if at all, that there were ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative. He counter-protested 954 precincts on grounds of coercion/intimidation and duress; massive vote-buying; "lansadera"; misreading/miscounting/misappreciation of votes; and other electoral anomalies and irregularities. During the revision, ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative were not counted and [5] temporarily classified as stray. These comprise majority of the 9,831 stray ballots claimed by Martinez.
[3]

HRET Ruling In its Decision dated May 28, 2009, the HRET resolved each of the claims and objections respectively raised by protestant and protestee applying the rules for appreciation of ballots. The Tribunal recognized as most crucial the issue of whether or not ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative should be counted in favor of Martinez. Thus, the election protest "will [6] rise or fall on how the Tribunal [appreciates said] ballots."

Ruling on the issue, the HRET sustained the BEI in considering the ballots as stray in accordance with Sec. 211 (1) of the Omnibus Election Code which provides:

"Where only the first name of a candidate or only his surname is written, the vote for such candidate is valid, if [7] there is no other candidate with the same first name or surname for the same office." [EMPHASIS SUPPLIED.] Since the name of Edilito C. Martinez was still included in the official list of candidates on election day (May 14, 2007), the HRET held that five thousand four hundred one (5,401) ballots with "MARTINEZ" or "C. MARTINEZ" only written on the line for Representative were properly denied on the ground that there was no way of determining the real [8] intention of the voter. These ballots were included in the 7,544 ballots denied as votes for Martinez in 961 precincts. Commiserating with Martinez on the delayed resolution of SPA Case No. 07-133 (PES), the HRET stated: "We sympathize to (sic) the protestant that he is the victim of the inaction of the Comelec in failing to decide the petition to disqualify Edilito C. Martinez as nuisance candidate on or before the May 14, 2007 elections. After all, it appears that the latter did not even lift a finger to oppose the petition for his declaration as nuisance candidate and that per its decision rendered only twenty-nine (29) days after the May 14, 2007 elections, Edilito C. Martinez was indeed a nuisance candidate. "As it is, the delay committed by the Comelec in deciding the petition to disqualify Edilito C. Martinez as nuisance candidate on or before May 14, 2007 election did not only cause injustice to herein protestant but worst, had resulted to (sic) the disenfranchisement of five thousand four hundred one (5,401) electorates whose votes could have changed [9] the number of votes garnered by the parties herein if not changed altogether the outcome of the election itself." The final overall results of recount and appreciation of ballots, election documents and other evidence in the entire 1,129 precincts as [10] determined by the HRET are as follows : Overall Fourth District of Cebu Votes PROTESTANT 1] Votes per physical count* in 961 precincts where there was ballot appreciation 57,758 2] Votes in 12 precincts** without ballots found during revision (based on election returns) 998 3] Votes per election returns in 156 precincts in which several spurious ballots were placed after elections, counting and/or canvassing of votes 660 57,132 PROTESTEE

9,937 68,693

7,815 65,607 860 2,348 11 2

Less: Objected ballots rejected*** Add: Claimed ballots admitted*** Unclaimed ballots admitted*** Restored Ballots Total Votes in the Contested Precincts After Appreciation of Evidence

4,333 2,287 8

66,655 PLURALITY OF PROTESTEE'S VOTES

67,108 453

* Taken from Revision Reports ** Namely Precinct Nos. 51A, Daan-Bantayan, 40A, 56A, 79A, all of Bantayan, 15C, 19D, 66B/67A, 88A, 105A, all of Bogo, 40A/41A, 70A/71A, all of

Medellin, 30A, Sta. Fe. *** During appreciation of ballots in 961 precincts. On the basis of the foregoing, the HRET dismissed the election protest, affirmed the proclamation of Salimbangon and declared him to be the duly elected Representative of the Fourth Legislative District of Cebu, having won by a plurality margin of 453 votes. Martinez moved for reconsideration of the Decision, but the HRET denied it by Resolution dated July 30, 2009. The Petition Petitioner alleges that the HRET gravely abused its discretion when it failed to credit the "MARTINEZ" or "C. MARTINEZ" votes in his favor despite the finality of the COMELEC resolution declaring Edilito C. Martinez a nuisance candidate. Petitioner argues that the Decision disenfranchised 5,401 voters when it ruled that said votes cannot be counted as votes for him since "there is no way of determining the real intention of the voter", in utter disregard of the mandate of Art. VIII, Sec. 14 of the Constitution. He maintains that there is no clear and good reason to justify the rejection of those 5,401 ballots, and points out that at the time private respondent was proclaimed by the Board of Canvassers, only 104 votes separated private respondent from him (private respondent was credited with 67,277 votes as against 67,173 [12] votes of petitioner, while nuisance candidate Edilito C. Martinez got a measly 363 votes.) Petitioner further alleges that the HRET invalidated ballots for him without stating the legal and factual bases therefor, and on grounds other than the objections raised by private respondent. He contends that the HRET erred in concluding that the ruling in Bautista v. [13] Commission on Elections cannot be applied in view of circumstances which supposedly distinguish the present case from Bautista. Finally, petitioner cites the dissenting opinion of the Honorable Associate Justice Antonio Eduardo B. Nachura who disagreed with the majority ruling and posited that the final declaration by COMELEC that Edilito C. Martinez was a nuisance candidate and the [14] cancellation of his certificate of candidacy should be deemed effective as of the day of the election. In his Comment, private respondent assails the apparent desire of petitioner for this Court to review the physical appreciation of ballots conducted by the HRET when he assigned as issues the alleged erroneous invalidation by the HRET of petitioner's ballots which were ruled as written by two (2) persons, and when he even appreciated ballots that were declared by the HRET as marked ballots. Private respondent details the mostly post-election anomalies and irregularities, particularly in Bogo City, perpetrated by the petitioner as found by the HRET such as tampering of election returns and statement of votes and vote padding/tampering. As to the "MARTINEZ" and "C. MARTINEZ" ballots, private respondent asserts that the HRET correctly refused to credit petitioner with these votes, stressing that there were admittedly three (3) candidates for the position of Representative for the Fourth Legislative District of Cebu as of May 14, 2007. Not a single voter in the district knew of any nuisance congressional candidate on election day. Private respondent argues that it would be illogical and most unfair to count the said ballots in favor of petitioner as it is erroneous to base the voter's intent on the supervening circumstance which was inexistent on the date the ballot was accomplished and cast. The HRET likewise did not err in holding that the Bautistaruling is inapplicable, there being no announced declaration yet of one (1) of the candidates as nuisance candidate when the voters cast their ballots on election day. The Issues
[11]

What then is the legal effect of declaring a nuisance candidate as such in a final judgment after the elections? Should ballots containing only the similar surname of two (2) candidates be considered as stray votes or counted in favor of the bona fide candidate? Our Ruling The Court finds the petition meritorious. Section 69 of the Omnibus Election Code provides: "Section 69. Nuisance candidates. -- The Commission may motu proprio or upon a verified petition of an interested party, refuse to give due course to or cancel a certificate of candidacy if it is shown that said certificate has been filed to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate." Republic Act No. 6646, otherwise known as The Electoral Reforms Law of 1987" provides in Section 5 thereof: "SEC. 5. Procedure in Cases of Nuisance Candidates. -(a) A verified petition to declare a duly registered candidate as a nuisance candidate under Section 69 of Batas Pambansa Blg. 881 shall be filed personally or through duly authorized representative with the Commission by any registered candidate for the same office within five (5) days from the last day for the filing of certificates of candidacy. Filing by mail shall not be allowed. "(b) Within three (3) days from the filing of the petition, the Commission shall issue summons to the respondent candidate together with a copy of the petition and its enclosures, if any. "(c) The respondent shall be given three (3) days from receipt of the summons within which to file his verified answer (not a motion to dismiss) to the petition, serving copy thereof upon the petitioner. Grounds for a motion to dismiss may be raised as affirmative defenses.

"(d) The Commission may designate any of its officials who are lawyers to hear the case and receive evidence. The proceeding shall be summary in nature. In lieu of oral testimonies, the parties may be required to submit position papers together with affidavits or counter-affidavits and other documentary evidence. The hearing officer shall immediately submit to the Commission his findings, reports, and recommendations within five (5) days from the completion of such submission of evidence. The Commission shall render its decision within five (5) days from receipt thereof. "(e) The decision, order, or ruling of the Commission shall, after five (5) days from receipt of a copy thereof by the parties, be final and executory unless stayed by the Supreme Court. "(f) The Commission shall within twenty-four hours, through the fastest available means, disseminate its decision or the decision of the Supreme Court to the city or municipal election registrars, boards of election inspectors and the general public in the political subdivision concerned." [EMPHASIS SUPPLIED.] By their very nature, proceedings in cases of nuisance candidates require prompt disposition. The declaration of a duly registered candidate as nuisance candidate results in the cancellation of his certificate of candidacy. The law mandates the Commission and the courts to give priority to cases of disqualification to the end that a final decision [15] shall be rendered not later than seven days before the election in which the disqualification is sought. In many instances, however, proceedings against nuisance candidates remained pending and undecided until election day and even after canvassing of votes had been completed. Here, petitioner sought to declare Edilito C. Martinez as a nuisance candidate immediately after the latter filed his certificate of candidacy as an independent candidate and long before the May 14, 2007 elections. Petitioner averred that Edilito C. Martinez who was a driver of a motorcycle for hire, locally known as "habal-habal", did not own any real property in his municipality, had not filed his income tax return for the past years, and being an independent candidate did not have any political machinery to propel his candidacy nor did he have political supporters to help him in his campaign. Petitioner claimed that Edilito C. Martinez after the filing of his certificate of candidacy, was never heard of again and neither did he start an electoral campaign. Given such lack of bona fide intention of Edilito C. Martinez to run for the office for which he filed a certificate of candidacy, petitioner contended that his candidacy would just cause confusion among the voters by the similarity of their surnames, considering that petitioner was undeniably the frontrunner in the congressional district in the Fourth [16] Legislative District of Cebu as his mother, Rep. Clavel A. Martinez, was the incumbent Representative of the district. The COMELEC's Second Division granted the petition and declared Edilito C. Martinez as a nuisance candidate. It noted that the failure of said candidate to answer and deny the accusations against him clearly disclosed the fact that he had no bona fide intention to run for public office. Thus, it concluded that his only purpose for filing his certificate of candidacy was to put the election process into mockery [17] and cause confusion among the voters by the similarity of his surname with that of petitioner. No motion for reconsideration was filed by Edilito C. Martinez and neither did he appeal before this Court the resolution declaring him a nuisance candidate. Said decision had thus become final and executory after five (5) days from its promulgation in accordance with [18] the COMELEC Rules of Procedure. But having come too late, the decision was an empty victory for petitioner who lost to private respondent by a slim margin of 104 votes. In his election protest, petitioner sought to have ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative counted in his favor. The HRET, however, considered such ballots numbering 5,401 as stray and rejected petitioner's argument that the ruling in Bautista v. Comelec (supra) is applicable in this case. Bautista involves a mayoralty candidate (Cipriano "Efren" Bautista) during the May 11, 1998 elections who filed a petition to declare as nuisance candidate Edwin "Efren" Bautista, who filed a certificate of candidacy for the same position at the last minute. The COMELEC granted the petition, declared Edwin Bautista a nuisance candidate and ordered the cancellation of his certificate of candidacy. Consequently, Edwin Bautista's name was not included in the official list of candidates for the position of mayor of Navotas City and copies of the list were distributed to the boards of election inspectors (BEI). On May 8, 1998, Edwin filed a motion for reconsideration and as a result, the Election Officer of Navotas issued a directive to the BEI to include the name of Edwin Bautista in the certified list of candidates, only to recall said order in the afternoon. In view of the conflicting directives, counsel for petitioner requested the COMELEC that instructions be given to the BEI to tally separately the votes for "EFREN BAUTISTA", "EFREN", "E. BAUTISTA" and "BAUTISTA." On May 13, 1998, the COMELEC denied Edwin Bautista's motion for reconsideration. When the canvass of the election returns was commenced, the Municipal Board of Canvassers refused to canvass as part of the valid votes of petitioner the separate tallies of ballots on which were written "EFREN BAUTISTA," "EFREN," "E. BAUTISTA" and "BAUTISTA." Petitioner then filed with the COMELEC a petition to declare illegal the proceedings of the Municipal Board of Canvassers. Meanwhile Edwin Bautista filed a petition for certiorari with this Court assailing the actions of COMELEC declaring him a nuisance candidate and ordering the cancellation of his certificate of candidacy. The Court dismissed said petition finding no grave abuse of discretion committed by the COMELEC and subsequently also denied with finality the motion for reconsideration filed by Edwin Bautista. As to the petition to declare as illegal the proceedings of the Municipal Board of Canvassers for its refusal to include the stray votes in [19] the separate tally sheet, the COMELEC dismissed the same, citing Sec. 211 (4) of the Omnibus Election Code. Petitioner Bautista elevated the case to the Supreme Court which ruled in his favor, thus: "At the outset and initially setting aside all the ramifications of the substantive issue of the instant petition, the primordial concern of the Court is to verify whether or not on the day of the election, there was only one 'Efren Bautista' as a validly registered candidate as far as the electorate was concerned.

"x x x

"Edwin Bautista moved for reconsideration on May 8, 1998. Unfortunately, said motion was not resolved as of election day. Technically, the April 30, 1998 decision was not yet final as of May 11, 1998, and this technicality created serious problems on election day.

x x x "An analysis of the foregoing incidents shows that the separate tallies were made to remedy any prejudice that may be caused by the inclusion of a potential nuisance candidate in the Navotas mayoralty race. Such inclusion was brought about by technicality, specifically Edwin Bautista's filing of a motion for reconsideration, which prevented the April 30, 1998 resolution disqualifying him from becoming final at that time. "Ideally, the matter should have been finally resolved prior to election day. Its pendency on election day exposed petitioner to the evils brought about by the inclusion of a then potential, later shown in reality to be nuisance candidate. We have ruled that a nuisance candidate is one whose certificate of candidacy is presented and filed to cause confusion among the electorate by the similarity of the names of the registered candidate or by other names which demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate ( Fernandez vs. Fernandez, 36 SCRA 1 [1970]). "It must be emphasized that the instant case involves a ground for disqualification which clearly affects the voters' will and causes confusion that frustrates the same. This is precisely what election laws are trying to protect. They give effect to, rather than frustrate, the will of the voter. Thus, extreme caution should be observed before any ballot is invalidated. Further, in the appreciation of ballots, doubts are resolved in favor of their validity. (Silverio vs. Castro, 19 SCRA 521 [1967]).

"As discussed in the COMELEC's April 30, 1998 decision, in accordance with Section 69, Edwin Bautista was found to be a nuisance candidate. First and foremost, he was running under the name of Edwin 'Efren' Bautista, when it had been established that he was really known as 'Boboy' or 'Boboy Tarugo.' Second, the following circumstances saliently demonstrate that he had no bona fide intention of running for the office for which he filed his certificate of candidacy: He is said to be engaged in a 'buy and sell' business, but he has no license therefor. He declared that he had a monthly income of P10,000.00 but with expenses totalling P9,000.00. He does not own any real property. He did not file his income tax return for the years 1995 and 1996 and when asked why, he said he did not have any net income and that he was only earning enough to defray household expenses. He even violated COMELEC rules since he failed to submit the names of individuals who paid for his campaign materials as well as the printing press he dealt with. He did not have a political lineup and had no funds to support his campaign expenses. He merely depended on friends whose names he did not submit to the COMELEC. And as straightforwardly found by the COMELEC, he 'has not demonstrated any accomplishment/achievement in his twenty-six (26) years of existence as a person that would surely attract the electorate to choose him as their representative in government.' "In contrast, it was shown that petitioner had previously held under his name Cipriano and appellation, 'Efren' Bautista, various elective positions, namely: Barangay Captain of Navotas in 1962, Municipal Councilor of Navotas in 1970, and Vice-Mayor of Navotas in 1980. He is a duly registered Naval Architect and Marine Engineer, and a member of various civic organizations such as the Rotary Club of Navotas and the Philippine Jaycees. "It seems obvious to us that the votes separately tallied are not really stray votes. Then COMELEC Chairman Bernardo P. Pardo himself, now a respected member of the Court, in his May 14, 1998 Memorandum, allowed the segregation of the votes for "Bautista," "Efren," and "Efren Bautista," and "E. Bautista" into a separate improvised tally, for the purpose of later counting the votes. In fine, the COMELEC itself validated the separate tallies since they were meant to be used in the canvassing later on to the actual number of votes cast. These separate tallies actually made the will of the electorate determinable despite the apparent confusion caused by a potential nuisance candidate. What remained unsaid by the COMELEC Chairman was the fact that as early as May 13, 1998, the COMELEC had already spoken and stated its final position on the issue of whether or not Edwin Bautista is anuisance candidate. It had already denied Edwin's motion for reconsideration in its May 13, 1998 Order x x x "x x x x "This important detail only shows that as of May 14, 1998, when Chairman Pardo issued the aforestated Memorandum, Edwin Bautista had already been finally declared as a nuisance candidate by the COMELEC. And when Edwin Bautista elevated the matter to this Court, we upheld such declaration. How then can we consider valid the votes for Edwin Bautista whom we finally ruled as disqualified from the 1998 Navotas mayoralty race? That is like saying one thing and doing another. These are two incompatible acts the contrariety and inconsistency of which are all too [20] obvious." [EMPHASIS SUPPLIED.] Petitioner now invokes this Court's pronouncement in Bautista to the effect that votes indicating only the surname of two (2) candidates should not be considered as stray but counted in favor of the bona fide candidate after the other candidate with a similar surname was declared a nuisance candidate. In refusing to apply the ruling in Bautista, the HRET said that the factual circumstances in said case are different, thus:

"Protestant strongly asserts that the 'MARTINEZ' or 'C. MARTINEZ' only votes be counted in his favor invoking the ruling in the case of Bautista vs. Comelec, G.R. No. 133840, November 13, 1998 (298 SCRA 480) where the Supreme Court held that the final and conclusive ruling on the declaration of a nuisance candidate retroacts on the day of the election. "We disagree. "While the Bautista vs. Comelec case also involves a candidate declared as nuisance by the Comelec, the case herein is not on all fours with it. x x x "x x x "It is clear from the foregoing facts of the Bautista case that the nuisance candidate, Edwin Bautista, was declared as such on April 30, 1998, eleven (11) days before the May 11, 1998 elections. Although the decision was not yet final on Election Day because of a Motion for Reconsideration that Edwin Bautista had filed on May 8, 1998, nevertheless, his name was not included in the list of candidates for the position of Mayor for Navotas. This is not the situation in the present case for Edilito C. Martinez was not yet declared disqualified during the May 14, 2007 elections. There were, therefore, two (2) congressional candidates on the day of the election with "MARTINEZ" as surname, Celestino A. Martinez and Edilito C. Martinez. "More importantly, in the Bautista case, while the Comelec's decision declaring Edwin Bautista a nuisance candidate had not yet attained finality on election day, May 11, 1998, the voters of Navotas were informed of such disqualification by virtue of newspaper releases and other forms of notification. The voters in said case had constructive as well as actual knowledge of the action of the Comelec delisting Edwin Bautista as a candidate for mayor. This is not so in the present case for Edilito C. Martinez was not yet disqualified as nuisance candidate during the May 14, 2007 elections. There were no newspaper releases and other forms of notification to the voters of the Fourth District of Cebu on or before May 14, 2007 elections that Edilito C. Martinez was disqualified [21] as a nuisance candidate." [EMPHASIS SUPPLIED.]

It is clear that Bautista is anchored on the factual determination that the COMELEC resolution declaring Edwin Bautista a nuisance candidate was already final since his motion for reconsideration was already denied by the Commission when canvassing of the votes started. Hence, the segregated and separately tallied votes containing only the similar first names/nicknames and surnames of the two (2) candidates were considered as not really stray votes. We held that the separate tallies validated by the COMELEC actually made the will of the electorate determinable despite the apparent confusion caused by a nuisance candidate. In the case at bar, there was no segregation or separate tally of votes for petitioner. Unlike in Bautista, there was simply no opportunity for petitioner to request the segregation and separate tally of expected ballots containing only the surname "MARTINEZ" as the resolution granting his petition was promulgated only a month later. The HRET, while not closing its eyes to the prejudice caused to petitioner by COMELEC's inaction and delay, as well as the disenfranchisement of the 5,401 voters, refused to credit him with those votes on the ground that there was no way of determining the real intention of the voter. We disagree. The purpose of an election protest is to ascertain whether the candidate proclaimed by the board of canvassers is the lawful choice of the people. What is sought is the correction of the canvass of votes, which was the basis of proclamation of the winning candidate. Election contests, therefore, involve the adjudication not only of private and pecuniary interests of rival candidates, but also of paramount public [22] interest considering the need to dispel uncertainty over the real choice of the electorate. In controversies pertaining to nuisance candidates as in the case at bar, the law contemplates the likelihood of confusion which the similarity of surnames of two (2) candidates may generate. A nuisance candidate is thus defined as one who, based on the attendant circumstances, has no bona fide intention to run for the office for which the certificate of candidacy has been filed, his sole purpose being the reduction of the votes of a strong candidate, upon the expectation that ballots with only the surname of such candidate will be considered stray and not counted for either of them. In elections for national positions such as President, Vice-President and Senator, the sheer logistical challenge posed by nuisance candidates gives compelling reason for the Commission to exercise its authority to eliminate nuisance candidates who obviously have no [23] financial capacity or serious intention to mount a nationwide campaign. Thus we explained in Pamatong v. Commission on Elections : "The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who have not evinced a bona fide intention to run for office is easy to divine. The State has a compelling interest to ensure that its electoral exercises are rational, objective, and orderly. Towards this end, the State takes into account the practical considerations in conducting elections. Inevitably, the greater the number of candidates, the greater the opportunities for logistical confusion, not to mention the increased allocation of time and resources in preparation for the election. These practical difficulties should, of course, never exempt the State from the conduct of a mandated electoral exercise. At the same time, remedial actions should be available to alleviate these logistical hardships, whenever necessary and proper. Ultimately, a disorderly election is not merely a textbook example of inefficiency, but a rot that erodes faith in our democratic institutions. As the United States Supreme Court held: [T]here is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization and its candidates on the ballot -the interest, if no other, in avoiding confusion, deception and even frustration of the democratic [process]. "x x x x

"There is a need to limit the number of candidates especially in the case of candidates for national positions because the election process becomes a mockery even if those who cannot clearly wage a national campaign are allowed to run. Their names would have to be printed in the Certified List of Candidates, Voters Information Sheet and the Official Ballots. These would entail additional costs to the government. x x x "The preparation of ballots is but one aspect that would be affected by allowance of "nuisance candidates" to run in the elections. Our election laws provide various entitlements for candidates for public office, such as watchers in every polling place, watchers in the board of canvassers, or even the receipt of electoral contributions. Moreover, there are election rules and regulations the formulations of which are dependent on the number of candidates in a given election. "Given these considerations, the ignominious nature of a nuisance candidacy becomes even more galling. The organization of an election with bona fide candidates standing is onerous enough. To add into the mix candidates with no serious intentions or capabilities to run a viable campaign would actually impair the electoral process. x x x Given the realities of elections in our country and particularly contests involving local positions, what emerges as the paramount concern in barring nuisance candidates from participating in the electoral exercise is the avoidance of confusion and frustration of the democratic process by preventing a faithful determination of the true will of the electorate, more than the practical considerations mentioned in Pamatong. A report published by the Philippine Center for Investigative Journalism in connection with the May 11, 1998 elections indicated that the tactic of fielding nuisance candidates with the same surnames as leading contenders had become one (1) "dirty trick" practiced in at least 18 parts of the country. The success of this clever scheme by political rivals or operators has been attributed to [25] the last-minute disqualification of nuisance candidates by the Commission, notably its "slow-moving" decision-making. As illustrated in Bautista, the pendency of proceedings against a nuisance candidate on election day inevitably exposes the bona fide candidate to the confusion over the similarity of names that affects the voter's will and frustrates the same. It may be that the factual scenario in Bautista is not exactly the same as in this case, mainly because the Comelec resolution declaring Edwin Bautista a nuisance candidate was issued before and not after the elections, with the electorate having been informed thereof through newspaper releases and other forms of notification on the day of election. Undeniably, however, the adverse effect on the voter's will was similarly present in this case, if not worse, considering the substantial number of ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative over five thousand - which have been declared as stray votes, the invalidated ballots being more than sufficient to overcome private respondent's lead of only 453 votes after the recount. Bautista upheld the basic rule that the primordial objective of election laws is to give effect to, rather than frustrate, the will of the voter. The inclusion of nuisance candidates turns the electoral exercise into an uneven playing field where the bona fide candidate is faced with the prospect of having a significant number of votes cast for him invalidated as stray votes by the mere presence of another candidate with a similar surname. Any delay on the part of the COMELEC increases the probability of votes lost in this manner. While political campaigners try to minimize stray votes by advising the electorate to write the full name of their candidate on the ballot, still, election woes brought by nuisance candidates persist. The Court will not speculate on whether the new automated voting system to be implemented in the May 2010 elections will lessen the possibility of confusion over the names of candidates. What needs to be stressed at this point is the apparent failure of the HRET to give weight to relevant circumstances that make the will of the electorate determinable, following the precedent in Bautista. These can be gleaned from the findings of the Commission on the personal circumstances of Edilito C. Martinez clearly indicating lack of serious intent to run for the position for which he filed his certificate of candidacy, foremost of which is his sudden absence after such filing. In contrast to petitioner who is a well-known politician, a former municipal mayor for three (3) terms and a strong contender for the position of Representative of the Fourth Legislative District of Cebu (then occupied by his mother), it seems too obvious that Edilito C. Martinez was far from the voters' consciousness as he did not even campaign nor formally launch his candidacy. The HRET likewise failed to mention the total number of votes actually cast for Edilito C. Martinez, which can support petitioner's contention that the "MARTINEZ" and "C. MARTINEZ" votes could not have been intended as votes for Edilito C. Martinez. Petitioner should not be prejudiced by COMELEC's inefficiency and lethargy. Nor should the absence of objection over straying of votes during the actual counting bar petitioner from raising the issue in his election protest. The evidence clearly shows that Edilito C. Martinez, who did not even bother to file an answer and simply disappeared after filing his certificate of candidacy, was an unknown in politics within the district, a "habal-habal" driver who had neither the financial resources nor political support to sustain his candidacy. The similarity of his surname with that of petitioner was meant to cause confusion among the voters and spoil petitioner's chances of winning the congressional race for the Fourth Legislative District of Cebu. As it turned out, there were thousands of ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative, votes considered stray by the BEI and not counted in favor of petitioner, and which the HRET affirmed to be invalid votes. Had the Commission timely resolved the petition to declare Edilito C. Martinez a nuisance candidate, all such ballots with "MARTINEZ" or "C. MARTINEZ" would have been counted in favor of petitioner and not considered stray, pursuant [26] to COMELEC Resolution No. 4116, issued in relation to the finality of resolutions or decisions in disqualification cases, which provides: This pertains to the finality of decision s or resolutions of the Commission en banc or division, particularly on Special Actions (Disqualification Cases). Special Action cases refer to the following: (a) Petition to deny due course to a certificate of candidacy; (b) Petition to declare a candidate as a nuisance candidate; (c) Petition to disqualify a candidate; and (d) Petition to postpone or suspend an election. Considering the foregoing and in order to guide field officials on the finality of decisions or resolutions on special action cases (disqualification cases) the Commission, RESOLVES, as it is hereby RESOLVED, as follows: (1) the decision or resolution of the En Banc of the Commission on disqualification cases shall become final and executory after five (5) days from its promulgation unless restrained by the Supreme Court;

x x

(4) the decision or resolution of the En Banc on nuisance candidates, particularly whether the nuisance candidate has the same name as the bona fide candidate shall be immediately executory; (5) the decision or resolution of a DIVISION on nuisance candidate, particularly where the nuisance candidate has the same name as the bona fide candidate shall be immediately executory after the lapse of five (5) days unless a motion for reconsideration is seasonably filed. In which case, the votes cast shall not be considered stray but shall be counted and tallied for the bona fide candidate. All resolutions, orders and rules inconsistent herewith are hereby modified or repealed. [EMPHASIS SUPPLIED.]

We held in several cases that the judgments of the Electoral Tribunals are beyond judicial interference, unless rendered without or in [27] excess of their jurisdiction or with grave abuse of discretion. The power of judicial review may be invoked in exceptional cases upon a clear showing of such arbitrary and improvident use by the Tribunal of its power as constitutes a clear denial of due process of law, or upon a demonstration of a very clear unmitigated error, manifestly constituting such grave abuse of direction that there has to be a remedy for such [28] abuse. Grave abuse of discretion implies capricious and whimsical exercise of judgment amounting to lack of jurisdiction, or arbitrary and despotic exercise of power because of passion or personal hostility. The grave abuse of discretion must be so patent and gross as to [29] amount to an evasion or refusal to perform a duty enjoined by law. Respondent HRET gravely abused its discretion in affirming the proclamation of respondent Salimbangon as the duly elected Representative of the Fourth Legislative District of Cebu despite the final outcome of revision showing 5,401 ballots with only "MARTINEZ" or "C. "MARTINEZ" written on the line for Representative, votes which should have been properly counted in favor of petitioner and not nullified as stray votes, after considering all relevant circumstances clearly establishing that such votes could not have been intended for "Edilito C. Martinez" who was declared a nuisance candidate in a final judgment. Ensconced in our jurisprudence is the well-founded rule that laws and statutes governing election contests especially appreciation of ballots must be liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated by technical infirmities. An election protest is imbued with public interest so much so that the need to dispel uncertainties which becloud the real choice of [30] the people is imperative. The prohibition against nuisance candidates is aimed precisely at preventing uncertainty and confusion in ascertaining the true will of the electorate. Thus, in certain situations as in the case at bar, final judgments declaring a nuisance candidate should effectively cancel the certificate of candidacy filed by such candidate as of election day. Otherwise, potential nuisance candidates will continue to put the electoral process into mockery by filing certificates of candidacy at the last minute and delaying resolution of any petition to declare them as nuisance candidates until elections are held and the votes counted and canvassed. We therefore hold that ballots indicating only the similar surname of two (2) candidates for the same position may, in appropriate cases, be counted in favor of the bona fide candidate and not considered stray, even if the other candidate was declared a nuisance candidate by final judgment after the elections. Accordingly, the 5,401 votes for "MARTINEZ" or "C. MARTINEZ" should be credited to petitioner giving him a total of 72,056 votes as against 67,108 total votes of private respondent. Petitioner thus garnered more votes than private respondent with a winning margin of 4,948 votes. WHEREFORE, the petition is GRANTED. The Decision dated May 28, 2009 and Resolution dated July 30, 2009 of the House of Representatives Electoral Tribunal in HRET Case No. 07-035 are ANNULLED and SET ASIDE. Petitioner Celestino A. Martinez III is hereby declared the duly elected Representative of the Fourth Legislative District of Cebu in the May 14, 2007 elections. This decision is immediately executory. Let a copy of the decision be served personally upon the parties and their counsels.

[G.R. No. 14738. December 10, 2003]RODOLFO C. FARIAS, vs comelecCALLEJO, SR., J.: Before the Court are two Petitions under Rule 65 of the Rules of Court, as amended, seeking to declare as unconstitutional Section 14 of Republic Act No. 9006 (The Fair Election Act), insofar as it expressly repeals Section 67 of Batas Pambansa Blg. 881 (The Omnibus Election Code) which provides: SEC. 67. Candidates holding elective office. Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. The petition for certiorari and prohibition in G.R. No. 147387 was filed by Rodolfo C. Farias, Manuel M. Garcia, Francis G. Escudero and Agapito A. Aquino. At the time of filing of the petition, the petitioners were members of the minority bloc in the House of Representatives. Impleaded as respondents are: the Executive Secretary, then Speaker of the House of Representatives Feliciano R. Belmonte, Jr., the Commission on Elections, the Secretary of the Department of the Interior and Local Government (DILG), the Secretary of the Senate and the Secretary General of the House of Representatives. The petition for prohibition in G.R. No. 152161 was filed by Gerry A. Salapuddin, then also a member of the House of Representatives. Impleaded as respondent is the COMELEC.

Legislative History of Republic Act No. 9006

Rep. Act No. 9006, entitled An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible Elections through Fair Election Practices, is a consolidation of the following bills originating from the House of Representatives and the Senate, respectively: House Bill (HB) No. 9000 entitled AN ACT ALLOWING THE USE OF MASS MEDIA FOR ELECTION PROPAGANDA, AMENDING FOR THE PURPOSE BATAS PAMBANSA BILANG 881, OTHERWISE KNOWN AS THE OMNIBUS ELECTION CODE, AS AMENDED, AND [1] FOR OTHER PURPOSES; Senate Bill (SB) No. 1742 entitled AN ACT TO ENHANCE THE HOLDING OF FREE, ORDERLY, HONEST, PEACEFUL, AND CREDIBLE [2] ELECTIONS THROUGH FAIR ELECTION PRACTICES. A Bicameral Conference Committee, composed of eight members of the Senate and sixteen (16) members of the House of [4] Representatives, was formed to reconcile the conflicting provisions of the House and Senate versions of the bill. On November 29, 2000, the Bicameral Conference Committee submitted its Report, approval of the bill as reconciled and approved by the conferees.
[5] [3]

signed by its members, recommending the

During the plenary session of the House of Representatives on February 5, 2001, Rep. Jacinto V. Paras proposed an amendment to the Bicameral Conference Committee Report. Rep. Didagen P. Dilangalen raised a point of order commenting that the House could no longer submit an amendment thereto. Rep. Sergio A.F. Apostol thereupon moved that the House return the report to the Bicameral Conference Committee in view of the proposed amendment thereto. Rep. Dilangalen expressed his objection to the proposal. However, upon viva [6] voce voting, the majority of the House approved the return of the report to the Bicameral Conference Committee for proper action. In view of the proposed amendment, the House of Representatives elected anew its conferees to the Bicameral Conference [8] [9] Committee. Then again, for unclear reasons, upon the motion of Rep. Ignacio R. Bunye, the House elected another set of conferees to [10] the Bicameral Conference Committee. On February 7, 2001, during the plenary session of the House of Representatives, Rep. Bunye moved that the House consider the Bicameral Conference Committee Report on the contrasting provisions of HB No. 9000 and SB No. 1742. Rep. Dilangalen observed that the report had been recommitted to the Bicameral Conference Committee. The Chair responded that the Bicameral Conference Report was a new one, and was a result of the reconvening of a new Bicameral Conference Committee. Rep. Dilangalen then asked that he be given time to examine the new report. Upon motion of Rep. Apostol, the House deferred the approval of the report until the other members were given a [11] copy thereof. After taking up other pending matters, the House proceeded to vote on the Bicameral Conference Committee Report on the disagreeing provisions of HB No. 9000 and SB No. 1742. The House approved the report with 125 affirmative votes, 3 negative votes and no abstention. In explaining their negative votes, Reps. Farias and Garcia expressed their belief that Section 14 thereof was a rider. Even Rep. Escudero, who voted in the affirmative, expressed his doubts on the constitutionality of Section 14. Prior to casting his vote, Rep. [12] Dilangalen observed that no senator signed the Bicameral Conference Committee Report and asked if this procedure was regular. On the same day, the Senate likewise approved the Bicameral Conference Committee Report on the contrasting provisions of SB No. 1742 and HB No. 9000. Thereafter, Rep. Act No. 9006 was duly signed by then Senate President Aquilino Pimentel, Jr. and then Speaker of the House of Representatives Feliciano R. Belmonte, Jr. and was duly certified by the Secretary of the Senate Lutgardo B. Barbo and the Secretary General of the House of Representatives Robert P. Nazareno as the consolidation of House Bill No. 9000 and Senate Bill No. 1742, and finally passed by both Houses on February 7, 2001. President Gloria Macapagal-Arroyo signed Rep. Act No. 9006 into law on February 12, 2001.
[7]

The Petitioners Case

The petitioners now come to the Court alleging in the main that Section 14 of Rep. Act No. 9006, insofar as it repeals Section 67 of the Omnibus Election Code, is unconstitutional for being in violation of Section 26(1), Article VI of the Constitution, requiring every law to have only one subject which should be expressed in its title. According to the petitioners, the inclusion of Section 14 repealing Section 67 of the Omnibus Election Code in Rep. Act No. 9006 constitutes a proscribed rider. They point out the dissimilarity in the subject matter of Rep. Act No. 9006, on the one hand, and Section 67 of the Omnibus Election Code, on the other. Rep. Act No. 9006 primarily deals with the lifting of the ban on the use of media for election propaganda and the elimination of unfair election practices, while Section 67 of the Omnibus Election Code imposes a limitation on elective officials who run for an office other than the one they are holding in a permanent capacity by considering them as ipso facto resigned therefrom upon filing of the certificate of candidacy. The repeal of Section 67 of the Omnibus Election Code is thus not embraced in the title, nor germane to the subject matter of Rep. Act No. 9006. The petitioners also assert that Section 14 of Rep. Act No. 9006 violates the equal protection clause of the Constitution because it repeals Section 67 only of the Omnibus Election Code, leaving intact Section 66 thereof which imposes a similar limitation to appointive officials, thus: SEC. 66. Candidates holding appointive office or position . Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

They contend that Section 14 of Rep. Act No. 9006 discriminates against appointive officials. By the repeal of Section 67, an elective official who runs for office other than the one which he is holding is no longer considered ipso facto resigned therefrom upon filing his certificate of candidacy. Elective officials continue in public office even as they campaign for reelection or election for another elective position. On the other hand, Section 66 has been retained; thus, the limitation on appointive officials remains - they are still considered ipso facto resigned from their offices upon the filing of their certificates of candidacy. The petitioners assert that Rep. Act No. 9006 is null and void in its entirety as irregularities attended its enactment into law. The law, not only Section 14 thereof, should be declared null and void. Even Section 16 of the law which provides that [t]his Act shall take effect upon its approval is a violation of the due process clause of t he Constitution, as well as jurisprudence, which require publication of the law before it becomes effective. Finally, the petitioners maintain that Section 67 of the Omnibus Election Code is a good law; hence, should not have been [13] repealed. The petitioners cited the ruling of the Court in Dimaporo v. Mitra, Jr., that Section 67 of the Omnibus Election Code is based on [14] the constitutional mandate on the Accountability of Public Officers: 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. Consequently, the respondents Speaker and Secretary General of the House of Representatives acted with grave abuse of discretion amounting to excess or lack of jurisdiction for not considering those members of the House who ran for a seat in the Senate during the May 14, 2001 elections as ipso facto resigned therefrom, upon the filing of their respective certificates of candidacy.

The Respondents Arguments

For their part, the respondents, through the Office of the Solicitor General, urge this Court to dismiss the petitions contending, preliminarily, that the petitioners have no legal standing to institute the present suit. Except for the fact that their negative votes were overruled by the majority of the members of the House of Representatives, the petitioners have not shown that they have suffered harm as a result of the passage of Rep. Act No. 9006. Neither do petitioners have any interest as taxpayers since the assailed statute does not involve the exercise by Congress of its taxing or spending power. Invoking the enrolled bill doctrine, the respondents refute the petitioners allegations that irregularities attended the enactment of Rep. Act No. 9006. The signatures of the Senate President and the Speaker of the House, appearing on the bill and the certification signed by the respective Secretaries of both houses of Congress, constitute proof beyond cavil that the bill was duly enacted into law. The respondents contend that Section 14 of Rep. Act No. 9006, as it repeals Section 67 of the Omnibus Election Code, is not a proscribed rider nor does it violate Section 26(1) of Article VI of the Constitution. The title of Rep. Act No. 9006, An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible Elections through Fair Election Practices, is so broad that it encom passes all the processes involved in an election exercise, including the filing of certificates of candidacy by elective officials. They argue that the repeal of Section 67 is germane to the general subject of Rep. Act No. 9006 as expressed in its title as it eliminates the effect of prematurely terminating the term of an elective official by his filing of a certificate of candidacy for an office other than the one which he is permanently holding, such that he is no longer considered ipso facto resigned therefrom. The legislature, by including the repeal of Section 67 of the Omnibus Election Code in Rep. Act No. 9006, has deemed it fit to remove the unfairness of considering an elective official ipso facto resigned from his office upon the filing of his certificate of candidacy for another elective office. With the repeal of Section 67, all elective officials are now placed on equal footing as they are allowed to finish their respective terms even if they run for any office, whether the presidency, vice-presidency or other elective positions, other than the one they are holding in a permanent capacity. The respondents assert that the repeal of Section 67 of the Omnibus Election Code need not be expressly stated in the title of Rep. Act No. 9006 as the legislature is not required to make the title of the act a complete index of its contents. It must be deemed sufficient that the title be comprehensive enough reasonably to include the general subject which the statute seeks to effect without expressing each and every means necessary for its accomplishment. Section 26(1) of Article VI of the Constitution merely calls for all the parts of an act relating to its subject to find expression in its title. Mere details need not be set forth. According to the respondents, Section 14 of Rep. Act No. 9006, insofar as it repeals Section 67, leaving Section 66 of the Omnibus Election Code intact and effective, does not violate the equal protection clause of the Constitution. Section 67 pertains to elective officials while Section 66 pertains to appointive officials. A substantial distinction exists between these two sets of officials; elective officials occupy their office by virtue of their mandate based upon the popular will, while the appointive officials are not elected by popular will. The latter cannot, therefore, be similarly treated as the former. Equal protection simply requires that all persons or things similarly situated are treated alike, both as to rights conferred and responsibilities imposed. Further, Section 16, or the Effectivity clause, of Rep. Act No. 9006 does not run afoul of the due process clause of the Constitution as it does not entail any arbitrary deprivation of life, liberty and property. Specifically, the section providing for penalties in cases of violations thereof presume that the formalities of the law would be observed, i.e., charges would first be filed, and the accused would be entitled to a hearing before judgment is rendered by a court having jurisdiction. In any case, the issue about lack of due process is premature as no one has, as yet, been charged with violation of Rep. Act No. 9006. Finally, the respondents submit that the respondents Speaker and Secretary General of the House of Representatives did not commit grave abuse of discretion in not excluding from the Rolls those members thereof who ran for the Senate during the May 14, 2001 elections. These respondents merely complied with Rep. Act No. 9006, which enjoys the presumption of validity until declared otherwise by the Court.

The Courts Ruling

Before resolving the petitions on their merits, the Court shall first rule on the procedural issue raised by the respondents, i.e., whether the petitioners have the legal standing or locus standi to file the petitions at bar. The petitions were filed by the petitioners in their capacities as members of the House of Representatives, and as taxpayers and registered voters. Generally, a party who impugns the validity of a statute must have a personal and substantial interest in the case such that he has [15] sustained, or will sustain, direct injury as a result of its enforcement. The rationale for requiring a party who challenges the constitutionality of a statute to allege such a personal stake in the outcome of the controversy is to assure that concrete adverseness which sharpens the [16] presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. However, being merely a matter of procedure, this Court, in several cases involving issues of overarching significance to ou r [17] [18] society, had adopted a liberal stance on standing. Thus, in Tatad v. Secretary of the Department of Energy , this Court brushed aside the procedural requirement of standing, took cognizance of, and subsequently granted, the petitions separately filed by then Senator Francisco Tatad and several members of the House of Representatives assailing the constitutionality of Rep. Act No. 8180 (An Act Deregulating the Downstream Oil Industry and For Other Purposes). The Court likewise took cognizance of the petition filed by then members of the House of Representatives which impugned as unconstitutional the validity of a provision of Rep. Act No. 6734 (Organic Act for the Autonomous Region in Muslim Mindanao) inChiongbian [19] v. Orbos. Similarly, the Court took cognizance of the petition filed by then members of the Senate, joined by other petitioners, which [20] challenged the validity of Rep. Act No. 7716 (Expanded Value Added Tax Law) in Tolentino v. Secretary of Finance. Members of Congress, such as the petitioners, were likewise allowed by this Court to challenge the validity of acts, decisions, rulings, or [21] orders of various government agencies or instrumentalities in Del Mar v. Philippine Amusement and Gaming Corporation, Kilosbayan, Inc. [22] [23] [24] [25] v. Guingona, Jr., Philippine Constitution Association v. Enriquez, Albano v. Reyes, and Bagatsing v. Committee on Privatization. Certainly, the principal issue posed by the petitions, i.e., whether Section 67 of the Omnibus Election Code, which this Court had [26] declared in Dimaporo as deriving its existence from the constitutional provision on accountability of public officers, has been validly repealed by Section 14 of Rep. Act No. 9006, is one of overarching significance that justifies this Courts adoption of a liberal stance vis-vis the procedural matter on standing. Moreover, with the national elections barely seven months away, it behooves the Court to confront the issue now and resolve the same forthrightly. The following pronouncement of the Court is quite apropos: ... All await the decision of this Court on the constitutional question. Considering, therefore, the importance which the instant case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that [its] constitutionality . . . be now resolved. It may likewise be added that the exceptional character of the situation that confronts us, the paramount public interest, and the undeniable [27] necessity for a ruling, the national elections beings barely six months away, reinforce our stand. Every statute is presumed valid. The presumption is that the legislature intended to enact a valid, sensible and just law and one [29] which operates no further than may be necessary to effectuate the specific purpose of the law. It is equally well-established, however, that the courts, as guardians of the Constitution, have the inherent authority to determine [30] whether a statute enacted by the legislature transcends the limit imposed by the fundamental law. And where the acts of the other [31] branches of government run afoul of the Constitution, it is the judiciarys solemn and sacred duty to nullify the same. Proceeding from these guideposts, the Court shall now resolve the substantial issues raised by the petitions.
[28]

Section 14 of Rep. Act [32] No. 9006 Is Not a Rider

At the core of the controversy is Section 14, the repealing clause of Rep. Act No. 9006, which provides: Sec. 14. Sections 67 and 85 of the Omnibus Election Code (Batas Pambansa Blg. 881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a consequence, the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws, presidential decrees, executive orders, rules and regulations, or any part thereof inconsistent with the provisions of this Act are hereby repealed or modified or amended accordingly. The repealed provision, Section 67 of the Omnibus Election Code, quoted earlier, reads: SEC. 67. Candidates holding elective office. Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. Section 26(1), Article VI of the Constitution provides: SEC. 26 (1). Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof.

The proscription is aimed against the evils of the so-called omnibus bills and log-rolling legislation as well as surreptitious and/or [33] unconsidered encroaches. The provision merely calls for all parts of an act relating to its subject finding expression in its title. To determine whether there has been compliance with the constitutional requirement that the subject of an act shall be expressed in its title, the Court laid down the rule that Constitutional provisions relating to the subject matter and titles of statutes should not be so narrowly construed as to cripple or impede the power of legislation. The requirement that the subject of an act shall be expressed in its title should receive a reasonable and not a technical construction. It is sufficient if the title be comprehensive enough reasonably to include the general object which a statute seeks to effect, without expressing each and every end and means necessary or convenient for the accomplishing of that object. Mere details need not be [34] set forth. The title need not be an abstract or index of the Act. The title of Rep. Act No. 9006 reads: An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible Election s through Fair Election Practices. Section 2 of the law provides not only the declaration of principles but also the objectives thereof: Sec. 2. Declaration of Principles. The State shall, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of media of communication or information to guarantee or ensure equal opportunity for public service, including access to media time and space, and the equitable right to reply, for public information campaigns and fora among candidates and assure free, orderly, honest, peaceful and credible elections. The State shall ensure that bona fide candidates for any public office shall be free from any form of harassment and discrimination.
[35]

The Court is convinced that the title and the objectives of Rep. Act No. 9006 are comprehensive enough to include the repeal of Section 67 of the Omnibus Election Code within its contemplation. To require that the said repeal of Section 67 of the Code be expressed in the title [36] is to insist that the title be a complete index of its content. The purported dissimilarity of Section 67 of the Omnibus Election Code, which imposes a limitation on elective officials who run for an office other than the one they are holding, to the other provisions of Rep. Act No. 9006, which deal with the lifting of the ban on the use of media for election propaganda, does not violate the one subject -one title rule. This Court has held that an act having a single general subject, indicated in the title, may contain any number of provisions, no matter how diverse they may be, so long as they are not inconsistent with or foreign to the general subject, and may be considered in furtherance of such subject by providing for the method and means of [37] carrying out the general subject. The deliberations of the Bicameral Conference Committee on the particular matter are particularly instructive: SEN. LEGARDA-LEVISTE: Yes, Mr. Chairman, I just wanted to clarify. So all were looking for now is an appropriate title to make it broader so that it would cover this provision [referring to t he repeal of Section 67 of the Omnibus Election Code], is that correct? Thats all. Because I believe ... THE CHAIRMAN (REP. SYJUCO): We are looking for an appropriate coverage which will result in the nomenclature or title. SEN. LEGARDA-LEVISTE: Because I really do not believe that it is out of place. I think that even with the term fair election practice, it really cov ers it, because as expressed by Senator Roco, those conditions inserted earlier seemed unfair and it is an election practice and, therefore, I think, Im very comfortable with the title Fair Election Practice so that we can get over with these things so that we dont come back again until we find the title. I mean, its one provision which I think is fair for everybody. It may seem like a limitation but this limitation actually provides for fairness in election practices as the title implies. THE CHAIRMAN (REP. SYJUCO): Yes. SEN. LEGARDA-LEVISTE: So I would want to beg the House contingent, lets get it over with. To me, ha, its not a very touchy issue. For me, its even a very correct provision. I feel very comfortable with it and it was voted in the Senate, at least, so I would like to appeal to the ... para matapos na, then we come back as a Bicam just for the title Is that what youre ...? THE CHAIRMAN (REP. SYJUCO): Its not the title per se, its the coverage. So if you will just kindly bear with us. Im happy that there is already one comfortable senator there among ... several of us were also comfortable with it. But it would be well that when we rise from this Bicam that were all comfortable with it. THE CHAIRMAN (SEN. ROCO): Yes. Anyway, lets listen to Congressman Marcos. REP. MARCOS: Mr. Chairman, may I just make the observation that although it is true that the bulk of provisions deals with the area of propaganda and political advertising, the complete title is actually one that indulge full coverage. It says An Act to enhance

the holding of free, orderly, honest ... elections through fair election practices . But as you said, we will put that aside to discuss later one. Secondly, I think the Declaration of Principles contained in Section 2, paragraph 2 is perfectly adequate in that it says that it shall ensure candidates for public office that may be free from any form of harassment and discrimination. Surely this provision in Section 67 of the old Election Code of the existing Omnibus Election Code is a form of harassment or discrimination. And so I think that in the effort at leveling the playing field, we can cover this and it should not be considered a rider. SEN. LEGARDA-LEVISTE: I agree, Mr. Chairman. I think the Congresswoman from Ilocos had very clearly put it, that it is covered in the Declaration of Principles and in the objective of this bill. And therefore, I hope that the House contingent would agree to this so that we can finish it now. And it expressly provides for fair election practices because ... THE CHAIRMAN (SEN. ROCO): Yeah, I think what is on the table is that we are not disputing this, but we are looking for a title that is more generic so that then we have less of an objection on constitutionality. I think thats the theory. So, there is acceptance of this. Maybe we should not call it na limitation on elected officials. Maybe we should say the special provision on elected officials. So how is that? Alam mo ito ... REP. MARCOS: I think we just change the Section 1, the short title. THE CHAIRMAN (SEN. ROCO): Also, Then we say - - on the short title of the Act, we say ... REP. MARCOS: What if we say fair election practices? Maybe that should be changed... THE CHAIRMAN (SEN. ROCO): O, sige, fine, fine. Lets a brainstorm. Equal... REP. PADILLA: Mr. Chairman, why dont we use An Act rationalizing the holding of free, orderly, honest, peaceful and credible elections, amending for the purpose Batasang Pambansa known as the Omnibus Election Code? THE CHAIRMAN (SEN. ROCO): Why dont we remove fair and then this shall be cited as Election Practices Act? REP. PICHAY: Thats not an election practice. Thats a limitation. THE CHAIRMAN (SEN. ROCO): Ah - - - ayaw mo iyong practice. O, give me another noun. REP. MARCOS: The Fair Election. THE CHAIRMAN (SEN. ROCO): O, Fair Election Act. REP. MACARAMBON: Nagbi-brainstorm tayo dito, eh. How about if we change the title to enhance the holding of free, orderly, honest, peaceful and ensure equal opportunity for public service through fair election practices? REP. PICHAY: Fair election practices? REP. MACARAMBON: Yeah. To ensure equal opportunity for public service through fair ... THE CHAIRMAN (SEN. ROCO): Wala nang practices nga. REP. PICHAY: Wala nang practices.

THE CHAIRMAN (SEN. ROCO): It shall be cited as Fair Election Act. (Informal discussions) REP. PICHAY: Approve na iyan. THE CHAIRMAN (SEN. ROCO): Done. So, okay na iyon. The title will be Fair Election Act. The rest wala nang problema ano? VOICES: Wala na. REP. MACARAMBON: Wala na iyong practices? THE CHAIRMAN (SEN. ROCO): Wala na, wala na. Mahina tayo sa practice, eh. O, wala na? We will clean up. REP. MARCOS: Title? THE CHAIRMAN (SEN. ROCO): The short title, This Act ... THE CHAIRMAN (REP. SYJUCO): Youre back to your No. 21 already. REP. MARCOS: The full title, the same? THE CHAIRMAN (SEN. ROCO): Iyon na nga. The full title is An Act to enhance the holding ... Thats the House version, eh, dahil pareho, hindi ba? Then [38] the short title This Act shall be known as the Fair Election Act. The legislators considered Section 67 of the Omnibus Election Code as a form of harassment or discrimination that had to be done away with and repealed. The executive department found cause with Congress when the President of the Philippines signed the measure into law. For sure, some sectors of society and in government may believe that the repeal of Section 67 is bad policy as it would encourage political adventurism. But policy matters are not the concern of the Court. Government policy is within the exclusive dominion of the political [39] branches of the government. It is not for this Court to look into the wisdom or propriety of legislative determination. Indeed, whether an enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best means to achieve the desired results, whether, in short, the legislative discretion within its prescribed limits should be exercised in a particular manner are matters for the judgment [40] of the legislature, and the serious conflict of opinions does not suffice to bring them within the range of judicial cognizance. Congress is not [41] precluded from repealing Section 67 by the ruling of the Court in Dimaporo v. Mitra upholding the validity of the provision and by its pronouncement in the same case that the provision has a laudable purpose. Over time, Congress may find it imperative to repeal the law on its belief that the election process is thereby enhanced and the paramount objective of election laws the fair, honest and orderly election of truly deserving members of Congress is achieved. Moreover, the avowed purpose of the constitutional directive that the subject of a bill should be embraced in its title is to apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the enactment into law of matters which have not received the [42] notice, action and study of the legislators and the public. In this case, it cannot be claimed that the legislators were not apprised of the repeal of Section 67 of the Omnibus Election Code as the same was amply and comprehensively deliberated upon by the members of the House. In fact, the petitioners, as members of the House of Representatives, expressed their reservations regarding its validity prior to casting their votes. Undoubtedly, the legislators were aware of the existence of the provision repealing Section 67 of the Omnibus Election Code.

Section 14 of Rep. Act No. 9006 Is Not Violative of the Equal [43] Protection Clause of the Constitution The petitioners contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials give s undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous.

The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are [44] characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner: The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditionsboth as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and [45] reasonable grounds exist for making a distinction between those who fall within such class and those who do not. Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent [46] conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some [47] appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the [48] appointing authority. Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and [49] electoral activities. By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification. Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-a-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed.

The Enrolled Bill Doctrine Is Applicable In this Case

Not content with their plea for the nullification of Section 14 of Rep. Act No. 9006, the petitioners insist that the entire law should be nullified. They contend that irregularities attended the passage of the said law particularly in the House of Representatives catalogued thus: a. Creation of two (2) sets of BCC (Bicameral Conference Committee) members by the House during its session on February 5, 2001; No communication from the Senate for a conference on the compromise bill submitted by the BCC on November 29, 2000; The new Report submitted by the 2 /3 BCC was presented for approval on the floor without copies thereof being furnished the members; The 2 /3 BCC has no record of its proceedings, and the Report submitted by it was not signed by the Chairman (Sen. Roco) thereof as well as its senator-members at the time it was presented to and rammed for approval by the House; There was no meeting actually conducted by the 2 /3 BCC and that its alleged Report was instantly made and passed around for the signature of the BCC members; The Senate has no record of the creation of a 2
nd nd rd nd rd nd rd

b. c.

d.

e.

f. g.

BCC but only of the first one that convened on November 23, 2000;

The Effectivity clauses of SB No. 1741 and HB No. 9000, as well as that of the compromise bill submitted by the BCC that convened on November 20, 2000, were couched in terms that comply with the publication required by the Civil Code and jurisprudence, to wit: ... However, it was surreptitiously replaced in its final form as it appears in 16, R.A. No. 9006, with the provision that Thi s Act shall take effect immediately upon its approval;

h.

The copy of the compromise bill submitted by the 2 /3 BCC that was furnished the members during its consideration on February 7, 2001, did not have the same 16 as it now appears in RA No. 9006, but 16 of the compromise bill, HB 9000 and SB 1742, reasons for which no objection thereto was made;

nd

rd

i.

The alleged BCC Report presented to the House on February 7, 2001, did not contain a detailed, sufficiently explicit statement of the changes in or amendments to the subject measure ; and The disappearance of the Cayetano amendment, whic h is Section 12 of the compromise bill submitted by the BCC. In fact, this was the subject of the purported proposed amendment to the compromise bill of Member Paras as stated in paragraph 7 hereof. The said provision states, thusly: Sec. 12. Limitation on Elected Officials. Any elected official who runs for president and vice-president [50] shall be considered ipso facto resigned from his office upon the filing of the certificate of candidacy.

j.

The petitioners, thus, urge the Court to go behind the enrolled copy of the bill. The Court is not persuaded. Under the enrolled bill doctrine, the signing of a bill by the Speaker of the House and the Senate President and the certification of the Secretaries of both Houses of [51] Congress that it was passed are conclusive of its due enactment. A review of cases reveals the Courts consistent adherence to the rule. The Court finds no reason to deviate from the salutary rule in this case where the irregularities alleged by the petitioners mostly nd rd involved the internal rules of Congress, e.g., creation of the 2 or 3 Bicameral Conference Committee by the House. This Court is not the proper forum for the enforcement of these internal rules of Congress, whether House or Senate. Parliamentary rules are merely procedural [52] and with their observance the courts have no concern. Whatever doubts there may be as to the formal validity of Rep. Act No. 9006 must [53] be resolved in its favor. The Court reiterates its ruling in Arroyo v. De Venecia, viz.: But the cases, both here and abroad, in varying forms of expression, all deny to the courts the power to inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the absence of showing that there was a violation of a constitutional provision or the rights of private individuals. In Osmea v. Pendatun, it was held: At any rate, courts have declared that the rules adopted by deliberative bodies are subject to revocation, modification or waiver at the pleasure of the body adopting t hem. And it has been said that Parliamentary rules are merely procedural, and with their observance, the courts have no concern. They may be waived or disregarded by the legislative body. Consequently, mere failure to conform to parliamentary usage will not invalidate the a ction (taken by a deliberative body) when the requisite number of members have agreed to a particular measure.

The Effectivity Clause Is Defective Finally, the Effectivity clause (Section 16) of Rep. Act No. 9006 which provides that it shall take effect immediately upon its approval, [54] is defective. However, the same does not render the entire law invalid. In Taada v. Tuvera, this Court laid down the rule: ... the clause unless it is otherwise provided refers to the date of effectivity and not to the requirement of publication itself, which cannot in any event be omitted. This clause does not mean that the legislator may make the law effective immediately upon approval, or on any other date without its previous publication. Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-period shall be shortened or [55] extended. Following Article 2 of the Civil Code and the doctrine enunciated in Taada, Rep. Act No. 9006, notwithstanding its express statement, took effect fifteen days after its publication in the Official Gazette or a newspaper of general circulation. In conclusion, it bears reiterating that one of the firmly entrenched principles in constitutional law is that the courts do not involve themselves with nor delve into the policy or wisdom of a statute. That is the exclusive concern of the legislative branch of the government. When the validity of a statute is challenged on constitutional grounds, the sole function of the court is to determine whether it [57] transcends constitutional limitations or the limits of legislative power. No such transgression has been shown in this case. WHEREFORE, the petitions are DISMISSED. No pronouncement as to costs. SO ORDERED.
[56]

G.R. No. 189698 ELEAZAR P. QUINTO vs comelec In our predisposition to discover the original intent of a statute, courts become the unfeeling pillars of the status quo. Little do we realize that statutes or even constitutions are bundles of compromises thrown our way by their framers. Unless we exercise vigilance, the statute may already be out of tune and irrelevant to our day.
[1]

It is in this light that we should address the instant case.

Before the Court is a petition for prohibition and certiorari, with prayer for the issuance of a temporary restraining order and a writ of preliminary injunction, assailing Section 4(a) of Resolution No. 8678 of the Commission on Elections (COMELEC). In view of pressing contemporary events, the petition begs for immediate resolution. The Antecedents

This controversy actually stems from the law authorizing the COMELEC to use an automated election system (AES). On December 22, 1997, Congress enacted Republic Act (R.A.) No. 8436, entitled AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES. Section 11 thereof reads: SEC. 11. Official Ballot.The Commission shall prescribe the size and form of the official ballot which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size. A fixed space where the chairman of the Board of Election inspectors shall affix his/her signature to authenticate the official ballot shall be provided. Both sides of the ballots may be used when necessary. For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the positions of President, Vice President, Senators and candidates under the Party-List System as well as petitions for registration and/or manifestation to participate in the Party-List System shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on March 27, 1998. The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens' arms of the Commission may assign watchers in the printing, storage and distribution of official ballots. To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be impossible to reproduce on a photocopying machine and that identification marks, magnetic strips, bar codes and other technical and security markings, are provided on the ballot. The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for every [2] registered voter with a provision of additional four (4) ballots per precinct. Almost a decade thereafter, Congress amended the law on January 23, 2007 by enacting R.A. No. 9369, entitled AN ACT AMENDING REPUBLIC ACT NO. 8436, ENTITLED AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, TO ENCOURAGE TRANSPARENCY, CREDIBILITY, FAIRNESS AND ACCURACY OF ELECTIONS, AMENDING FOR THE PURPOSE BATAS PAMPANSA BLG. 881, AS AMEMDED, REPUBLIC ACT NO. 7166 AND OTHER RELATED ELECTION LAWS, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES. Section 13 of the amendatory law modified Section 11 of R.A. No. 8436, thus: SEC. 13. Section 11 of Republic Act No. 8436 is hereby amended to read as follows: Section 15. Official Ballot.The Commission shall prescribe the format of the electronic display and/or the size and form of the official ballot, which shall contain the titles of the position to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Where practicable, electronic displays must be constructed to present the names of all candidates for the same position in the same page or screen, otherwise, the electronic displays must be constructed to present the entire ballot to the voter, in a series of sequential pages, and to ensure that the voter sees all of the ballot options on all pages before completing his or her vote and to allow the voter to review and change all ballot choices prior to completing and casting his or her ballot. Under each position to be filled, the names of candidates shall be arranged alphabetically by surname and uniformly indicated using the same type size. The maiden or married name shall be listed in the official ballot, as preferred by the female candidate. Under each proposition to be vote upon, the choices should be uniformly indicated using the same font and size. A fixed space where the chairman of the board of election inspectors shall affix his/her signature to authenticate the official ballot shall be provided.

For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy:Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in governmentowned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy. Political parties may hold political conventions to nominate their official candidates within thirty (30) days before the start of the period for filing a certificate of candidacy. With respect to a paper-based election system, the official ballots shall be printed by the National Printing Office and/or theBangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens arms of the Commission shall assign watchers in the printing, storage and distribution of official ballots. To prevent the use of fake ballots, the Commission through the Committee shall ensure that the necessary safeguards, such as, but not limited to, bar codes, holograms, color shifting ink, microprinting, are provided on the ballot. The official ballots shall be printed and distributed to each city/municipality at the rate of one ballot for every [3] registered voter with a provision of additional three ballots per precinct. Pursuant to its constitutional mandate to enforce and administer election laws, COMELEC issued Resolution No. [4] 8678, the Guidelines on the Filing of Certificates of Candidacy (CoC) and Nomination of Official Candidates of Registered Political Parties in Connection with the May 10, 2010 National and Local Elections. Sections 4 and 5 of Resolution No. 8678 provide: SEC. 4. Effects of Filing Certificates of Candidacy.a) Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

b) Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for the same or any other elective office or position. SEC. 5. Period for filing Certificate of Candidacy.The certificate of candidacy shall be filed on regular days, from November 20 to 30, 2009, during office hours, except on the last day, which shall be until midnight. Alarmed that they will be deemed ipso facto resigned from their offices the moment they file their CoCs, petitioners Eleazar P. [5] Quinto and Gerino A. Tolentino, Jr., who hold appointive positions in the government and who intend to run in the coming elections, filed the instant petition for prohibition and certiorari, seeking the declaration of the afore-quoted Section 4(a) of Resolution No. 8678 as null and void. The Petitioners Contention Petitioners contend that the COMELEC gravely abused its discretion when it issued the assailed Resolution. They aver that the advance filing of CoCs for the 2010 elections is intended merely for the purpose of early printing of the official ballots in order to cope with time limitations. Such advance filing does not automatically make the person who filed the CoC a candidate at the moment of filing. In fact, the law considers him a candidate only at the start of the campaign period. Petitioners then assert that this being so, they should not be deemed ipso facto resigned from their government offices when they file their CoCs, because at such time they are not yet treated by law as candidates. They should be considered resigned from their respective offices only at the start of the campaign period when they are, by law, [6] already considered as candidates. Petitioners also contend that Section 13 of R.A. No. 9369, the basis of the assailed COMELEC resolution, contains two conflicting provisions. These must be harmonized or reconciled to give effect to both and to arrive at a declaration that they are not ipso facto resigned [7] from their positions upon the filing of their CoCs. Petitioners further posit that the provision considering them as ipso facto resigned from office upon the filing of their CoCs is [8] discriminatory and violates the equal protection clause in the Constitution. The Respondents Arguments On the procedural aspect of the petition, the Office of the Solicitor General (OSG), representing respondent COMELEC, argues that petitioners have no legal standing to institute the suit. Petitioners have not yet filed their CoCs, hence, they are not yet affected by the assailed provision in the COMELEC resolution. The OSG further claims that the petition is premature or unripe for judicial determination. Petitioners have admitted that they are merely planning to file their CoCs for the coming 2010 elections. Their interest in the

present controversy is thus merely speculative and contingent upon the filing of the same. The OSG likewise contends that petitioners availed of the wrong remedy. They are questioning an issuance of the COMELEC made in the exercise of the latters rule -making [9] power. Certiorari under Rule 65 is then an improper remedy. On the substantive aspect, the OSG maintains that the COMELEC did not gravely abuse its discretion in phrasing Section 4(a) of Resolution No. 8678 for it merely copied what is in the law. The OSG, however, agrees with petitioners that there is a conflict in Section 13 of R.A. No. 9369 that should be resolved. According to the OSG, there seems to be no basis to consider appointive officials as ipso facto resigned and to require them to vacate their positions on the same day that they file their CoCs, because they are not yet considered as candidates at that time. Further, this deemed resigned provision existed in Batas Pambansa Bilang (B.P. Blg.) 881, and no longer finds a [10] place in our present election laws with the innovations brought about by the automated system. Our Ruling At first glance, the petition suffers from an incipient procedural defect. What petitioners assail in their petition is a resolution issued by the COMELEC in the exercise of its quasi-legislative power. Certiorari under Rule 65, in relation to Rule 64, cannot be availed of, because it is a [11] remedy to question decisions, resolutions and issuances made in the exercise of a judicial or quasi-judicial function. Prohibition is also an inappropriate remedy, because what petitioners actually seek from the Court is a determination of the proper construction of a statute and a [12] declaration of their rights thereunder. Obviously, their petition is one for declaratory relief, over which this Court does not exercise original [13] jurisdiction. owever, petitioners raise a challenge on the constitutionality of the questioned provisions of both the COMELEC resolution and the law. Given this scenario, the Court may step in and resolve the instant petition. The transcendental nature and paramount importance of the issues raised and the compelling state interest involved in their early resolutionthe period for the filing of CoCs for the 2010 elections has already started and hundreds of civil servants intending to run for elective offices are to lose their employment, thereby causing imminent and irreparable damage to their means of livelihood and, at the same time, crippling the governments manpowerfurther dictate that the Court must, for propriety, if only from a sense of obligation, entertain the petition so as to expedite the adjudication of all, especially the constitutional, issues.

In any event, the Court has ample authority to set aside errors of practice or technicalities of procedure and resolve the merits of a case. Repeatedly stressed in our prior decisions is the principle that the Rules were promulgated to provide guidelines for the orderly administration of justice, not to shackle the hand that dispenses it. Otherwise, the courts would be consigned to being mere slaves to [14] technical rules, deprived of their judicial discretion. To put things in their proper perspective, it is imperative that we trace the brief history of the assailed provision. Section 4(a) of COMELEC Resolution No. 8678 is a reproduction of the second proviso in the third paragraph of Section 13 of R.A. No. 9369, which for ready reference is quoted as follows: For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of [15] the day of the filing of his/her certificate of candidacy. Notably, this proviso is not present in Section 11 of R.A. No. 8436, the law amended by R.A. No. 9369. The proviso was lifted from Section 66 of B.P. Blg. 881 or the Omnibus Election Code (OEC) of the Philippines, which reads: Sec. 66. Candidates holding appointive office or position .Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. It may be recalledin inverse chronologythat earlier, Presidential Decree No. 1296, or the 1978 Election Code, contained a similar provision, thus SECTION 29. Candidates holding appointive office or position. Every person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall ipso facto cease in his office or position on the date he files his certificate of candidacy. Members of the Cabinet shall continue in the offices they presently hold notwithstanding the filing of certificate of candidacy, subject to the pleasure of the President of the Philippines. Much earlier, R.A. No. 6388, or the Election Code of 1971, likewise stated in its Section 23 the following: SECTION 23. Candidates Holding Appointive Office or Position. Every person holding a public appointive office or position, including active members of the Armed Forces of the Philippines and every officer or employee in government-owned or controlled corporations, shall ipso facto cease in his office or position on the date he files his certificate of candidacy: Provided, That the filing of a certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which he may have incurred. Going further back in history, R.A. No. 180, or the Revised Election Code approved on June 21, 1947, also provided that

SECTION 26. Automatic cessation of appointive officers and employees who are candidates. Every person holding a public appointive office or position shall ipso facto cease in his office or position on the date he files his certificate of candidacy. During the Commonwealth era, Commonwealth Act (C.A.) No. 725, entitled AN ACT TO PROVIDE FOR THE NEXT ELECTION FOR PRESIDENT AND VICE-PRESIDENT OF THE PHILIPPINES, SENATORS AND MEMBERS OF THE HOUSE OF REPRESENTATIVES, AND APPROPRIATING THE NECESSARY FUNDS THEREFOR, approved on January 5, 1946, contained, in the last paragraph of its Section 2, the following: A person occupying any civil office by appointment in the government or any of its political subdivisions or agencies or governmentowned or controlled corporations, whether such office by appointive or elective, shall be considered to have resigned from such office from the moment of the filing of such certificate of candidacy.

Significantly, however, C.A. No. 666, entitled AN ACT TO PROVIDE FOR THE FIRST ELECTION FOR PRESIDENT AND VICE PRESIDENT OF THE PHILIPPINES, SENATORS, AND MEMBERS OF THE HOUSE OF REPRESENTATIVES, UNDER THE CONSTITUTION AND THE AMENDMENTS THEREOF, enacted without executive approval on June 22, 1941, the precursor of C.A. No. 725, only provided for automatic resignation of elective, but not appointive, officials. Nevertheless, C.A. No. 357, or the Election Code approved on August 22, 1938, had, in its Section 22, the same verbatim provision as Section 26 of R.A. No. 180. The earliest recorded Philippine law on the subject is Act No. 1582, or the Election Law enacted by the Philippine Commission in 1907, the last paragraph of Section 29 of which reads: Sec. 29. Penalties upon officers. x x x. No public officer shall offer himself as a candidate for election, nor shall he be eligible during the time that he holds said public office to election, at any municipal, provincial or Assembly election, except for reelection to the position which he may be holding, and no judge of the Court of First Instance, justice of the peace, provincial fiscal, or officer or employee of the Bureau of Constabulary or of the Bureau of Education shall aid any candidate or influence in any manner or take any part in any municipal, provincial, or Assembly election under penalty of being deprived of his office and being disqualified to hold any public office whatever for a term of five years: Provided, however, That the foregoing provisions shall not be construed to deprive any person otherwise qualified of the right to vote at any election. rom this brief historical excursion, it may be gleaned that the second proviso in the third paragraph of Section 13 of R.A. No. 9369that any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in government-owned or controlled corporations, shall be considered ipso factoresigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacytraces its roots to the period of the American occupation. In fact, during the deliberations of Senate Bill No. 2231, the bill later to be consolidated with House Bill No. 5352 and enacted as R.A. No. 9369, Senator Richard Gordon, the principal author of the bill, acknowledged that the said proviso in the proposed legislative measure is an old provision which was merely copied from earlier existing legislation, thus Senator Osmea. May I just opine here and perhaps obtain the opinion of the good Sponsor. This reads like, ANY PERSON HOLDING [means currently] A PUBLIC APPOINTIVE POSITION SHALL BE CONSIDERED IPSO FACTO RESIGNED [which means that the prohibition extends only to appointive officials] INCLUDING ACTIVE MEMBERS OF THE ARMED FORCES, OFFICERS AND EMPLOYEES This is a prohibition, Mr. President. This means if one is chairman of SSS or PDIC, he is deemed ipso facto resigned when he files his certificate of candidacy. Is that the intention? Senator Gordon. This is really an old provision, Mr. President. Senator Osmea. It is in bold letters, so I think it was a Committee amendment. Senator Gordon. No, it has always been there. Senator Osmea. I see. Senator Gordon. I guess the intention is not to give them undue advantage, especially certain people. Senator Osmea. All right.
[16]

In that Senate deliberation, however, Senator Miriam Defensor-Santiago expressed her concern over the inclusion of the said provision in the new law, given that the same would be disadvantageous and unfair to potential candidates holding appointive positions, while it grants a consequent preferential treatment to elective officials, thus

Senator Santiago. On page 15, line 31, I know that this is a losing cause, so I make this point more as a matter of record than of any feasible hope that it can possibly be either accepted or if we come to a division of the House, it will be upheld by the majority.

I am referring to page 15, line 21. The poviso begins: PROVIDED FINALLY, THAT ANY PERSON HOLDING A PUBLIC APPOINTIVE OFFICESHALL BE CONSIDERED IPSO FACTO RESIGNED FROM HIS/HER OFFICE. The point that I made during the appropriate debate in the past in this Hall is that there is, for me, no valid reason for exempting elective officials from this inhibition or disqualification imposed by the law. If we are going to consider appointive officers of the government, including AFP members and officers of government-owned and controlled corporations, or any other member of the appointive sector of the civil service, why should it not apply to the elective sector for, after all, even senators and congressmen are members of the civil service as well? Further, it is self-serving for the Senate, or for the Congress in general, to give an exception to itself which is not available to other similarly situated officials of government. Of course, the answer is, the reason why we are special is that we are elected. Since we are imposing a disqualification on all other government officials except ourselves, I think, it is the better part of delicadeza to inhibit ourselves as well, so that if we want to stay as senators, we wait until our term expires. But if we want to run for some other elective office during our term, then we have to be considered resigned just like everybody else. That is my proposed amendment. But if it is unacceptable to the distinguished Sponsor, because of sensitivity to the convictions of the rest of our colleagues, I will understand. Senator Gordon. Mr. President, I think the suggestion is well-thought of. It is a good policy. However, this is something that is already in the old law which was upheld by the Supreme court in a recent case that the rider was not [17] upheld and that it was valid. The obvious inequality brought about by the provision on automatic resignation of appointive civil servants must have been the reason why Senator Recto proposed the inclusion of the following during the period of amendments: ANY PERSON WHO FILES HIS CERTIFICATE OF CANDIDACY WITHIN THIS PERIOD SHALL ONLY BE CONSIDERED AS A [18] CANDIDATE AT THE START OF THE CAMPAIGN PERIOD FOR WHICH HE FILED HIS COC. The said proviso seems to mitigate the situation of disadvantage afflicting appointive officials by considering persons who filed their CoCs as candidates only at the start of the campaign period, thereby, conveying the tacit intent that persons holding appointive positions will only be considered as resigned at the start of the campaign period when they are already treated by law as candidates.Parenthetically, it may be remembered that Section 67 of the OEC and Section 11 of R.A. No. 8436 contained a similar provision on automatic resignation of elective officials upon the filing of their CoCs for any office other than that which they hold in a permanent capacity or for President or Vice-President. However, with the enactment of R.A. No. 9006, [19] [20] or the Fair Election Act, in 2001, this provision was repealed by Section 14 of the said act. There was, thus, created a situation of obvious discrimination against appointive officials who were deemed ipso facto resigned from their offices upon the filing of their CoCs, while elective officials were not. This situation was incidentally addressed by the Court in Farias v. The Executive Secretary Section 14 of Rep. Act No. 9006 Is Not Violative of the Equal Protection Clause of the Constitution The petitioners contention, that the repeal of Sect ion 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous. The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner: The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not.
[21]

when it ruled that

Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities.

By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification. Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-a-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification [22] are similarly treated, the equal protection clause of the Constitution is, thus, not infringed. However, it must be remembered that the Court, in Farias, was intently focused on the main issue of whether the repealing clause in the Fair Election Act was a constitutionally proscribed rider, in that it unwittingly failed to ascertain with stricter scrutiny the impact of the retention of the provision on automatic resignation of persons holding appointive positions (Section 66) in the OEC, vis--vis the equal protection clause. Moreover, the Courts vision in Farias was shrouded by the fact that petitioners therein, Farias et al., never posed a direct challenge to the constitutionality of Section 66 of the OEC. Farias et al. rather merely questioned, on constitutional grounds, the repealing clause, or Section 14 of the Fair Election Act. The Courts afore-quoted declaration in Farias may then very well be considered as an obiter dictum. The instant case presents a rare opportunity for the Court, in view of the constitutional challenge advanced by petitioners, once and for all, to settle the issue of whether the second proviso in the third paragraph of Section 13 of R.A. No. 9369, a reproduction of Section 66 of the OEC, which, as shown above, was based on provisions dating back to the American occupation, is violative of the equal protection clause. But before delving into the constitutional issue, we shall first address the issues on legal standing and on the existence of an actual controversy. Central to the determination of locus standi is the question of whether a party has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends [23] for illumination of difficult constitutional questions. In this case, petitioners allege that they will be directly affected by COMELEC Resolution No. 8678 for they intend, and they all have the qualifications, to run in the 2010 elections. The OSG, for its part, contends that since petitioners have not yet filed their CoCs, they are not yet candidates; hence, they are not yet directly affected by the assailed provision in the COMELEC resolution. The Court, nevertheless, finds that, while petitioners are not yet candidates, they have the standing to raise the constitutional challenge, simply because they are qualified voters. A restriction on candidacy, such as the challenged measure herein, affects the rights of voters to choose their public officials. The rights of voters and the rights of candidates do not lend themselves to neat separation; laws that [24] affect candidates always have at least some theoretical, correlative effect on voters. The Court believes that both candidates and voters [25] may challenge, on grounds of equal protection, the assailed measure because of its impact on voting rights. In any event, in recent cases, this Court has relaxed the stringent direct injury test and has observed a liberal policy allowing ordinary citizens, members of Congress, and civil organizations to prosecute actions involving the constitutionality or validity of laws, [26] regulations and rulings. We have also stressed in our prior decisions that the exercise by this Court of judicial power is limited to the determination and [27] resolution of actual cases and controversies. The Court, in this case, finds that an actual case or controversy exists between the petitioners and the COMELEC, the body charged with the enforcement and administration of all election laws. Petitioners have alleged in a precise manner that they would engage in the very acts that would trigger the enforcement of the provision they would file their CoCs and run in the 2010 elections. Given that the assailed provision provides for ipso facto resignation upon the filing of the CoC, it cannot be said that [28] it presents only a speculative or hypothetical obstacle to petitioners candidacy. Having hurdled what the OSG posed as obstacles to judicial review, the Court now delves into the constitutional challenge. It is noteworthy to point out that the right to run for public office touches on two fundamental freedoms, those of expression and of [29] association. This premise is best explained in Mancuso v. Taft, viz.: Freedom of expression guarantees to the individual the opportunity to write a letter to the local newspaper, speak out in a public park, distribute handbills advocating radical reform, or picket an official building to seek redress of grievances. All of these activities are protected by the First Amendment if done in a manner consistent with a narrowly defined concept of public order and safety. The choice of means will likely depend on the amount of time and energy the individual wishes to expend and on his perception as to the mos t effective method of projecting his message to the public. But interest and commitment are evolving phenomena. What is an effective means for protest at one point in time may not seem so effective at a later date. The dilettante who participates in a picket line may decide to devote additional time and resources to his expressive activity. As his commitment increases, the means of effective expression changes, but the expressive quality remains constant. He may decide to lead the picket line, or to publish the newspaper. At one point in time he may decide that the most effective way to give expression to his views and to get the attention of an appropriate audience is to become a candidate for public officemeans generally considered among the most appropriate for those desiring to effect change in our governmental systems. He may seek to become a candidate by filing in a general election as an independent or by seeking the nomination of a political party. And in the latter instance, the individual's expressive activity has two dimensions: besides urging that his views be the views of the elected public official, he is also attempting to become a spokesman for a political party whose substantive program extends beyond the particular office in question. But Cranston has said that a certain type of its citizenry, the public employee, may not become a candidate and may not engage in any campaign activity that promotes himself as a candidate for public office. Thus the city has stifled what may be the most important expression an individual can summon, namely that which he would be willing to effectuate, by means of concrete public action, were he to be selected by the voters. It is impossible to ignore the additional fact that the right to run for office also affects the freedom to associate. In Williams v. Rhodes, supra, the Court used strict review to invalidate an Ohio election system that made it virtually

impossible for third parties to secure a place on the ballot. The Court found that the First Amendment protected the freedom to associate by forming and promoting a political party and that that freedom was infringed when the state effectively denied a party access to its electoral machinery. The Cranstoncharter provision before us also affects associational rights, albeit in a slightly different way. An individual may decide to join or participate in an organization or political party that shares his beliefs. He may even form a new group to forward his ideas. And at some juncture his supporters and fellow party members may decide that he is the ideal person to carry the group's standard into the electoral fray. To thus restrict the options available to political organization as the Cranston charter provision has done is to limit the effectiveness of association; and the freedom to associate is intimately related with the concept of making expression effective. Party access to the ballot becomes less meaningful if some of those selected by party machinery to carry the party's programs to the people are precluded from doing so because those nominees are civil servants. Whether the right to run for office is looked at from the point of view of individual expression or associational effectiveness, wide opportunities exist for the individual who seeks public office. The fact of candidacy alone may open previously closed doors of the media. The candidate may be invited to discuss his views on radio talk shows; he may be able to secure equal time on television to elaborate his campaign program; the newspapers may cover his candidacy; he may be invited to debate before various groups that had theretofore never heard of him or his views. In short, the fact of candidacy opens up a variety of communicative possibilities that are not available to even the most diligent of picketers or the most loyal of party followers. A view today, that running for public office is not an interest protected by the First Amendment, seems to us an outlook stemming from an earlier era when public office was the preserve of the professional and the wealthy. Consequently we hold that candidacy is both a protected First Amendment right and a fundamental interest. Hence any legislative classification that significantly burdens that interest must be subjected to strict equal [30] protection review. Here, petitioners interest in running for public office, an interest protected by Sections 4 and 8 of Article III of the Con stitution, is breached by the proviso in Section 13 of R.A. No. 9369. It is now the opportune time for the Court to strike down the said proviso for being violative of the equal protection clause and for being overbroad. In considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their CoCs, but not considering as resigned all other civil servants, specifically the elective ones, the law unduly discriminates against the first class. The fact alone that there is substantial distinction between those who hold appointive positions and those occupying elective posts, does not justify such differential treatment. In order that there can be valid classification so that a discriminatory governmental act may pass the constitutional norm of equal protection, it is necessary that the four (4) requisites of valid classification be complied with, namely: (1) It must be based upon substantial distinctions; (2) It must be germane to the purposes of the law; (3) It must not be limited to existing conditions only; and (4) It must apply equally to all members of the class. The first requirement means that there must be real and substantial differences between the classes treated differently. As illustrated in the [31] fairly recent Mirasol v. Department of Public Works and Highways, a real and substantial distinction exists between a motorcycle and other motor vehicles sufficient to justify its classification among those prohibited from plying the toll ways. Not all motorized vehicles are created equala two-wheeled vehicle is less stable and more easily overturned than a four-wheel vehicle. Nevertheless, the classification would still be invalid if it does not comply with the second requirement if it is not germane to the purpose of the law. Justice Isagani A. Cruz (Ret.), in his treatise on constitutional law, explains, The classification, even if based on substantial distinctions, will still be invalid if it is not germane to the purpose of the law. To illustrate, the accepted difference in physical stamina between men and women will justify the prohibition of the latter from employment as miners or stevedores or in other heavy and strenuous work. On the basis of this same classification, however, the law cannot provide for a lower passing average for women in the bar examinations because physical strength is not the test for admission to the legal profession. Imported cars may be taxed at a higher rate than locally assembled automobiles for the protection of the national economy, but their difference in origin is no justification for treating them differently when it comes to punishing violations of traffic regulations. The source of the [32] vehicle has no relation to the observance of these rules. The third requirement means that the classification must be enforced not only for the present but as long as the problem sought to be corrected continues to exist. And, under the last requirement, the classification would be regarded as [33] invalid if all the members of the class are not treated similarly, both as to rights conferred and obligations imposed. Applying the four requisites to the instant case, the Court finds that the differential treatment of persons holding appointive offices as opposed to those holding elective ones is not germane to the purposes of the law.

The obvious reason for the challenged provision is to prevent the use of a governmental position to promote ones candidacy, or even to wield a dangerous or coercive influence on the electorate. The measure is further aimed at promoting the efficiency, integrity, and discipline of the public service by eliminating the danger that the discharge of official duty would be motivated by political considerations [34] rather than the welfare of the public. The restriction is also justified by the proposition that the entry of civil servants to the electoral arena, while still in office, could result in neglect or inefficiency in the performance of duty because they would be attending to their campaign rather than to their office work. If we accept these as the underlying objectives of the law, then the assailed provision cannot be constitutionally rescued on the ground of valid classification. Glaringly absent is the requisite that the classification must be germane to the purposes of the law. Indeed, whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain. For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the same influence as the Vice-President who at the same time is appointed to a Cabinet post (in the recent past, elected Vice-Presidents were appointed to take charge of national housing, social welfare development, interior and local government, and foreign affairs). With the fact that they both head executive offices, there is no valid justification to treat them differently when both file their CoCs for the elections. Under the present state of our law, the Vice-President, in the example, running this time, let us say, for President, retains his position during the entire election period and can still use the resources of his office to support his campaign. As to the danger of neglect, inefficiency or partisanship in the discharge of the functions of his appointive office, the inverse could be just as true and compelling. The public officer who files his certificate of candidacy would be driven by a greater impetus for excellent performance to show his fitness for the position aspired for. Mancuso v. Taft, cited above, explains that the measure on automatic resignation, which restricts the rights of civil servants to run for officea right inextricably linked to their freedom of expression and association, is not reasonably necessary to the satisfaction of the state interest. Thus, in striking down a similar measure in the United States, Mancusosuccinctly declares In proceeding to the second stage of active equal protection review, however, we do see some contemporary relevance of theMitchell decision. National Ass'n of Letter Carriers, supra. In order for the Cranston charter provision to withstand strict scrutiny, the city must show that the exclusion of all government employees from candidacy is necessary to achieve a compelling state interest. And, as stated in Mitchell and other cases dealing with similar statutes, see Wisconsin State Employees, supra; Broadrick, supra, government at all levels has a substantial interest in protecting the integrity of its civil service. It is obviously conceivable that the impartial character of the civil service would be seriously jeopardized if people in positions of authority used their discretion to forward their electoral ambitions rather than the public welfare. Similarly if a public employee pressured other fellow employees to engage in corrupt practices in return for promises of postelection reward, or if an employee invoked the power of the office he was seeking to extract special favors from his superiors, the civil service would be done irreparable injury. Conversely, members of the public, fellow-employees, or supervisors might themselves request favors from the candidate or might improperly adjust their own official behavior towards him. Even if none of these abuses actually materialize, the possibility of their occurrence might seriously erode the public's confidence in its public employees. For the reputation of impartiality is probably as crucial as the impartiality itself; the knowledge that a clerk in the assessor's office who is running for the local zoning board has access to confidential files which could provide pressure points for furthering his campaign is destructive regardless of w hether the clerk actually takes advantage of his opportunities. For all of these reasons we find that the state indeed has a compelling interest in maintaining the honesty and impartiality of its public work force. We do not, however, consider the exclusionary measure taken by Cranston-a flat prohibition on office-seeking of all kinds by all kinds of public employees-as even reasonably necessary to satisfaction of this state interest. As Justice Marshall pointed out in Dunn v. Blumstein, [s]tatutes affecting constitutional rights must be drawn with precision. For three sets of reasons we conclude that theCranston charter provision pursues its objective in a far too heavy-handed manner and hence must fall under the equal protection clause. First, we think the nature of the regulation-a broad prophylactic rule-may be unnecessary to fulfillment of the city's objective. Second, even granting some sort of prophylactic rule may be required, the provision here prohibits candidacies for all types of public office, including many which would pose none of the problems at which the law is aimed. Third, the provision excludes the candidacies of all types of public employees, without any attempt to limit exclusion to those employees whose positions make them vulnerable to corruption and conflicts of interest. There is thus no valid justification to treat appointive officials differently from the elective ones. The classification simply fails to meet the test that it should be germane to the purposes of the law. The measure encapsulated in the second proviso of the third paragraph of Section 13 of R.A. No. 9369 and in Section 66 of the OEC violates the equal protection clause. The challenged provision also suffers from the infirmity of being overbroad. First, the provision pertains to all civil servants holding appointive posts without distinction as to whether they occupy high positions in government or not. Certainly, a utility worker in the government will also be considered as ipso factoresigned once he files his CoC for the 2010 elections. This scenario is absurd for, indeed, it is unimaginable how he can use his position in the government to wield influence in the political world. While it may be admitted that most appointive officials who seek public elective office are those who occupy relatively high positions in government, laws cannot be legislated for them alone, or with them alone in mind. For the right to seek public elective office is universal, open and unrestrained, subject only to the qualification standards prescribed in the Constitution and in the laws. These qualifications are, as we all know, general and basic so as to allow the widest participation of the citizenry and to give free rein for the pursuit of ones highest aspirations to public office. Such is the essence of democracy.
[35]

Second, the provision is directed to the activity of seeking any and all public offices, whether they be partisan or nonpartisan in character, whether they be in the national, municipal or barangay level. Congress has not shown a compelling state interest to restrict the [36] fundamental right involved on such a sweeping scale. Specific evils require specific treatments, not through overly broad measures that unduly restrict guaranteed freedoms of the citizenry. After all, sovereignty resides in the people, and all governmental power emanates from them. Mancuso v. Taft,
[37]

on this point, instructs

As to approaches less restrictive than a prophylactic rule, there exists the device of the leave of absence. Some system of leaves of absence would permit the public employee to take time off to pursue his candidacy while assuring him his old job should his candidacy be unsuccessful. Moreover, a leave of absence policy would eliminate many of the opportunities for engaging in the questionable practices that the statute is designed to prevent. While campaigning, the candidate would feel no conflict between his desire for election and his publicly entrusted discretion, nor any conflict between his efforts to persuade the public and his access to confidential documents. But instead of adopting a reasonable leave of absence policy, Cranston has chosen a provision that makes the public employee cast off the security of hard-won public employment should he desire to compete for elected office.

The city might also promote its interest in the integrity of the civil service by enforcing, through dismissal, discipline, or criminal prosecution, rules or statutes that treat conflict of interests, bribery, or other forms of official corruption. By thus attacking the problem directly, instead of using a broad prophylactic rule, the city could pursue its objective without unduly burdening the First Amendment rights of its employees and the voting rights of its citizens. Last term in Dunn v. Blumstein, the Supreme Court faced an analogous question when the State of Tennessee asserted that the interest of ballot box purity justified its imposition of one year and three month residency requirements before a citi zen could vote. Justice Marshall stated, inter alia, that Tennessee had available a number of criminal statutes that could be used to punish voter fraud without unnecessary infringement on the newcomer's right to vote. Similarly, it appears from the record in this case that the Cranston charter contains some provisions that might be used against opportunistic public employees. Even if some sort of prophylactic rule is necessary, we cannot say that Cranston has put much effort into tailoring a narrow provision that attempts to match the prohibition with the problem. The charter forbids a Cranston public employee from running for any office, anywhere. The prohibition is not limited to the local offices of Cranston, but rather extends to statewide offices and even to national offices. It is difficult for us to see that a public employee running for the United States Congress poses quite the same threat to the civil service as would the same employee if he were running for a local office where the contacts and information provided by his job related directly to the position he was seeking, and hence where the potential for various abuses was greater. Nor does the Cranston charter except the public employee who works in Cranston but aspires to office in another local jurisdiction, most probably his town of residence. Here again the charter precludes candidacies which can pose only a remote threat to the civil service. Finally, the charter does not limit its prohibition to partisan office-seeking, but sterilizes also those public employees who would seek nonpartisan elective office. The statute reviewed in Mitchell was limited to partisan political activity, and since that time other courts have found the partisan-nonpartisan distinction a material one. See Kinnear, supra; Wisconsin State Employees, supra; Gray v. Toledo, supra. While the line between nonpartisan and partisan can often be blurred by systems whose true characters are disguised by the names given them by their architects, it seems clear that the concerns of a truly partisan office and the temptations it fosters are sufficiently different from those involved in an office removed from regular party politics to warrant distinctive treatment in a charter of this sort. The third and last area of excessive and overinclusive coverage of the Cranston charter relates not to the type of office sought, but to the type of employee seeking the office. As Justice Douglas pointed out in his dissent in Mitchell, 330 U.S. at 120-126, 67 S.Ct. 556,restrictions on administrative employees who either participate in decision-making or at least have some access to information concerning policy matters are much more justifiable than restrictions on industrial employees, who, but for the fact that the government owns the plant they work in, are, for purposes of access to official information, identically situated to all other industrial workers. Thus, a worker in thePhiladelphia mint could be distinguished from a secretary in an office of the Department of Agriculture; so also could a janitor in the public schools of Cranston be distinguished from an assistant comptroller of the same city. A second line of distinction that focuses on the type of employee is illustrated by the cases of Kinnear and Minielly, supra. In both of these cases a civil service deputy decided to run for the elected office of sheriff. The courts in both cases felt that the no-candidacy laws in question were much too broad and indicated that perhaps the only situation sensitive enough to justify a flat rule was one in which an inferior in a public office electorally challenged his immediate superior. Given all these considerations, we think Cranston has not given adequate attention to the problem of narrowing the terms of its charter to deal with the specific kinds of conflict-of-interest problems it seeks to avoid. We also do not find convincing the arguments that after-hours campaigning will drain the energy of the public employee to the extent that he is incapable of performing his job effectively and that inevitable on-the-job campaigning and discussion of his candidacy will disrupt the work of others. Although it is indisputable that the city has a compelling interest in the performance of official work, the exclusion is not well-tailored to effectuate that interest. Presumably the city could

fire the individual if he clearly shirks his employment responsibilities or disrupts the work of others. Also, the efficiency rationale common to both arguments is significantly underinclusive. It applies equally well to a number of non-political, extracurricular activities that are not prohibited by the Cranston charter. Finally, the connection between after-hours campaigning and the state interest seems tenuous; in many cases a public employee would be able to campaign [38] aggressively and still continue to do his job well. Incidentally, Clements v. Fashing sustained as constitutional a provision on the automatic resignation of District Clerks, County Clerks, County Judges, County Treasurers, Criminal District Attorneys, County Surveyors, Inspectors of Hides and Animals, County Commissioners, Justices of the Peace, Sheriffs, Assessors and Collectors of Taxes, District Attorneys, County Attorneys, Public Weighers, and Constables if they announce their candidacy or if they become candidates in any general, special or primary election. In Clements, it may be readily observed that a provision treating differently particular officials, as distinguished from all others, under a classification that is germane to the purposes of the law, merits the stamp of approval from American courts. Not, however, a general and sweeping provision, and more so one violative of the second requisite for a valid classification, which is on its face unconstitutional.
[39]

On a final note, it may not be amiss to state that the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional. It is high-time that we, too, should follow suit and, thus, uphold fundamental liberties over age-old, but barren, restrictions to such freedoms. WHEREFORE, premises considered, the petition is GRANTED. The second proviso in the third paragraph of Section 13 of Republic Act No. 9369, Section 66 of the Omnibus Election Code and Section 4(a) of COMELEC Resolution No. 8678 are declared as UNCONSTITUTIONAL.

G.R. No. 189698

ELEAZAR P. QUINTO vs comelc

Upon a careful review of the case at bar, this Court resolves to grant the respondent Commission on Elections (COMELEC) moti on for reconsideration, and the movants-intervenors motions for reconsideration-in-intervention, of this Courts December 1, 2009 Decision 1 (Decision). The assailed Decision granted the Petition for Certiorari and Prohibition filed by Eleazar P. Quinto and Gerino A. Tolentino, Jr. and declared 2 as unconstitutional the second proviso in the third paragraph of Section 13 of Republic Act No. 9369, Section 66 of the Omnibus Election 3 4 Code and Section 4(a) of COMELEC Resolution No. 8678, mainly on the ground that they violate the equal protection clause of the Constitution and suffer from overbreadth. The assailed Decision thus paved the way for public appointive officials to continue discharging the powers, prerogatives and functions of their office notwithstanding their entry into the political arena. In support of their respective motions for reconsideration, respondent COMELEC and movants-intervenors submit the following arguments: (1) The assailed Decision is contrary to, and/or violative of, the constitutional proscription against the participation of public appointive officials and members of the military in partisan political activity; (2) The assailed provisions do not violate the equal protection clause when they accord differential treatment to elective and appointive officials, because such differential treatment rests on material and substantial distinctions and is germane to the purposes of the law; (3) The assailed provisions do not suffer from the infirmity of overbreadth; and (4) There is a compelling need to reverse the assailed Decision, as public safety and interest demand such reversal. We find the foregoing arguments meritorious. I. Procedural Issues First, we shall resolve the procedural issues on the timeliness of the COMELECs motion for reconsideration which was filed o n December 15, 2009, as well as the propriety of the motions for reconsideration-in-intervention which were filed after the Court had rendered its December 1, 2009 Decision.

i. Timeliness of COMELECs Motion for Reconsideration Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court, in relation to Section 1, Rule 52 of the same rules, COMELEC had a period of fifteen days from receipt of notice of the assailed Decision within which to move for its reconsideration. COMELEC received notice of the assailed Decision on December 2, 2009, hence, had until December 17, 2009 to file a Motion for Reconsideration. The Motion for Reconsideration of COMELEC was timely filed. It was filed on December 14, 2009. The corresponding Affidavit of Service (in substitution of the one originally submitted on December 14, 2009) was subsequently filed on December 17, 2009 still within the reglementary period. ii. Propriety of the Motions for Reconsideration-in-Intervention Section 1, Rule 19 of the Rules of Court provides: A person who has legal interest in the matter in litigation or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenors rights may be fully protected in a se parate proceeding. Pursuant to the foregoing rule, this Court has held that a motion for intervention shall be entertained when the following requisites are satisfied: (1) the would-be intervenor shows that he has a substantial right or interest in the case; and (2) such right or interest cannot be 7 adequately pursued and protected in another proceeding. Upon the other hand, Section 2, Rule 19 of the Rules of Court provides the time within which a motion for intervention may be filed, viz.: SECTION 2. Time to intervene. The motion for intervention may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. (italics supplied) This rule, however, is not inflexible. Interventions have been allowed even beyond the period prescribed in the Rule, when demanded by the higher interest of justice. Interventions have also been granted to afford indispensable parties, who have not been impleaded, the right to be 8 heard even after a decision has been rendered by the trial court, when the petition for review of the judgment has already been submitted for 9 10 11 decision before the Supreme Court, and even where the assailed order has already become final and executory. In Lim v. Pacquing, the motion for intervention filed by the Republic of the Philippines was allowed by this Court to avoid grave injustice and injury and to settle once and for all the substantive issues raised by the parties. In fine, the allowance or disallowance of a motion for intervention rests on the sound discretion of the court after consideration of the 13 appropriate circumstances. We stress again that Rule 19 of the Rules of Court is a rule of procedure whose object is to make the powers of 14 the court fully and completely available for justice. Its purpose is not to hinder or delay, but to facilitate and promote the administration of 15 justice. We rule that, with the exception of the IBP Cebu City Chapter, all the movants-intervenors may properly intervene in the case at bar. First, the movants-intervenors have each sufficiently established a substantial right or interest in the case. As a Senator of the Republic, Senator Manuel A. Roxas has a right to challenge the December 1, 2009 Decision, which nullifies a long established law; as a voter, he has a right to intervene in a matter that involves the electoral process; and as a public officer, he has a personal interest in maintaining the trust and confidence of the public in its system of government. On the other hand, former Senator Franklin M. Drilon and Tom V. Apacible are candidates in the May 2010 elections running against appointive officials who, in view of the December 1, 2009 Decision, have not yet resigned from their posts and are not likely to resign from their posts. They stand to be directly injured by the assailed Decision, unless it is reversed. Moreover, the rights or interests of said movants-intervenors cannot be adequately pursued and protected in another proceeding. Clearly, their rights will be foreclosed if this Courts Decision attains finality and forms part of the laws of the land. With regard to the IBP Cebu City Chapter, it anchors its standing on the assertion that "this case involves the constitutionality of elections laws for this coming 2010 National Elections," and that "there is a need for it to be allowed to intervene xxx so that the voice of its members in 16 the legal profession would also be heard before this Highest Tribunal as it resolves issues of transcendental importance." Prescinding from our rule and ruling case law, we find that the IBP-Cebu City Chapter has failed to present a specific and substantial interest sufficient to clothe it with standing to intervene in the case at bar. Its invoked interest is, in character, too indistinguishable to justify its intervention. We now turn to the substantive issues. II.
12 5 6

Substantive Issues The assailed Decision struck down Section 4(a) of Resolution 8678, the second proviso in the third paragraph of Section 13 of Republic Act (RA) 9369, and Section 66 of the Omnibus Election Code, on the following grounds: (1) They violate the equal protection clause of the Constitution because of the differential treatment of persons holding appointive offices and those holding elective positions; (2) They are overbroad insofar as they prohibit the candidacy of all civil servants holding appointive posts: (a) without distinction as to whether or not they occupy high/influential positions in the government, and (b) they limit these civil servants activity regardless of whether they be partisan or nonpartisan in character, or whether they be in the national, municipal or barangay level; and (3) Congress has not shown a compelling state interest to restrict the fundamental right of these public appointive officials. We grant the motions for reconsideration. We now rule that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369 are not unconstitutional, and accordingly reverse our December 1, 2009 Decision. III. Section 4(a) of COMELEC Resolution 8678 Compliant with Law Section 4(a) of COMELEC Resolution 8678 is a faithful reflection of the present state of the law and jurisprudence on the matter, viz.: Incumbent Appointive Official. - Under Section 13 of RA 9369, which reiterates Section 66 of the Omnibus Election Code, any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. Incumbent Elected Official. Upon the other hand, pursuant to Section 14 of RA 9006 or the Fair Election Act, which repealed Section 67 of 18 the Omnibus Election Code and rendered ineffective Section 11 of R.A. 8436 insofar as it considered an elected official as resigned only 19 upon the start of the campaign period corresponding to the positions for which they are running, an elected official is not deemed to have resigned from his office upon the filing of his certificate of candidacy for the same or any other elected office or position. In fine, an elected official may run for another position without forfeiting his seat. These laws and regulations implement Section 2(4), Article IX-B of the 1987 Constitution, which prohibits civil service officers and employees from engaging in any electioneering or partisan political campaign. The intention to impose a strict limitation on the participation of civil service officers and employees in partisan political campaigns is unmistakable. The exchange between Commissioner Quesada and Commissioner Foz during the deliberations of the Constitutional Commission is instructive: MS. QUESADA. xxxx Secondly, I would like to address the issue here as provided in Section 1 (4), line 12, and I quote: "No officer or employee in the civil service shall engage, directly or indirectly, in any partisan political activity." This is almost the same provision as in the 1973 Constitution. However, we in the government service have actually experienced how this provision has been violated by the direct or indirect partisan political activities of many government officials. So, is the Committee willing to include certain clauses that would make this provision more strict, and which would deter its violation? MR. FOZ. Madam President, the existing Civil Service Law and the implementing rules on the matter are more than exhaustive enough to really prevent officers and employees in the public service from engaging in any form of partisan political activity. But the problem really lies in implementation because, if the head of a ministry, and even the superior officers of offices and agencies of government will themselves violate the constitutional injunction against partisan political activity, then no string of words that we may add to what is now here in this draft 20 will really implement the constitutional intent against partisan political activity. x x x (italics supplied) To emphasize its importance, this constitutional ban on civil service officers and employees is presently reflected and implemented by a number of statutes. Section 46(b)(26), Chapter 7 and Section 55, Chapter 8 both of Subtitle A, Title I, Book V of the Administrative Code of 1987 respectively provide in relevant part: Section 44. Discipline: General Provisions: xxxx
17

(b) The following shall be grounds for disciplinary action: xxxx (26) Engaging directly or indirectly in partisan political activities by one holding a non-political office. xxxx Section 55. Political Activity. No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of his candidates for public office whom he supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code. Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further makes intervention by civil service officers and employees in partisan political activities an election offense, viz.: SECTION 261. Prohibited Acts. The following shall be guilty of an election offense: xxxx (i) Intervention of public officers and employees. Any officer or employee in the civil service, except those holding political offices; any officer, employee, or member of the Armed Forces of the Philippines, or any police force, special forces, home defense forces, barangay selfdefense units and all other para-military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election campaign or engages in any partisan political activity, except to vote or to preserve public order, if he is a peace officer. The intent of both Congress and the framers of our Constitution to limit the participation of civil service officers and employees in partisan political activities is too plain to be mistaken. But Section 2(4), Article IX-B of the 1987 Constitution and the implementing statutes apply only to civil servants holding apolitical offices. Stated differently, the constitutional ban does not cover elected officials, notwithstanding the fact that "[t]he civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with 21 original charters." This is because elected public officials, by the very nature of their office, engage in partisan political activities almost all 22 year round, even outside of the campaign period. Political partisanship is the inevitable essence of a political office, elective positions 23 included. The prohibition notwithstanding, civil service officers and employees are allowed to vote, as well as express their views on political issues, or mention the names of certain candidates for public office whom they support. This is crystal clear from the deliberations of the Constitutional Commission, viz.: MS. AQUINO: Mr. Presiding Officer, my proposed amendment is on page 2, Section 1, subparagraph 4, lines 13 and 14. On line 13, between the words "any" and "partisan," add the phrase ELECTIONEERING AND OTHER; and on line 14, delete the word "activity" and in lieu thereof substitute the word CAMPAIGN. May I be allowed to explain my proposed amendment? THE PRESIDING OFFICER (Mr. Treas): Commissioner Aquino may proceed. MS. AQUINO: The draft as presented by the Committee deleted the phrase "except to vote" which was adopted in both the 1935 and 1973 Constitutions. The phrase "except to vote" was not intended as a guarantee to the right to vote but as a qualification of the general prohibition against taking part in elections. Voting is a partisan political activity. Unless it is explicitly provided for as an exception to this prohibition, it will amount to disenfranchisement. We know that suffrage, although plenary, is not an unconditional right. In other words, the Legislature can always pass a statute which can withhold from any class the right to vote in an election, if public interest so required. I would only like to reinstate the qualification by specifying the prohibited acts so that those who may want to vote but who are likewise prohibited from participating in partisan political campaigns or electioneering may vote. MR. FOZ: There is really no quarrel over this point, but please understand that there was no intention on the part of the Committee to disenfranchise any government official or employee. The elimination of the last clause of this provision was precisely intended to protect the members of the civil service in the sense that they are not being deprived of the freedom of expression in a political contest. The last phrase or clause might have given the impression that a government employee or worker has no right whatsoever in an election campaign except to vote, which is not the case. They are still free to express their views although the intention is not really to allow them to take part actively in a 24 political campaign.

IV. Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code Do Not Violate the Equal Protection Clause We now hold that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369 are not violative of the equal protection clause of the Constitution. i. Farias, et al. v. Executive Secretary, et al. is Controlling In truth, this Court has already ruled squarely on whether these deemed-resigned provisions challenged in the case at bar violate the equal 25 protection clause of the Constitution in Farias, et al. v. Executive Secretary, et al. In Farias, the constitutionality of Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, was assailed on the ground, among others, that it unduly discriminates against appointive officials. As Section 14 repealed Section 67 (i.e., the deemed-resigned provision in respect of elected officials) of the Omnibus Election Code, elected officials are no longer considered ipso facto resigned from their respective offices upon their filing of certificates of candidacy. In contrast, since Section 66 was not repealed, the limitation on appointive officials continues to be operative they are deemed resigned when they file their certificates of candidacy. The petitioners in Farias thus brought an equal protection challenge against Section 14, with the end in view of having the deemed-resigned provisions "apply equally" to both elected and appointive officials. We held, however, that the legal dichotomy created by the Legislature is a reasonable classification, as there are material and significant distinctions between the two classes of officials. Consequently, the contention that Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, infringed on the equal protection clause of the Constitution, failed muster. We ruled: The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous. The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner: The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not. Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take (sic) part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities. By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification. Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis--vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection 26 clause of the Constitution is, thus, not infringed. The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our assailed Decision gave it new life. We ought to be guided by the doctrine of stare decisis et non quieta movere. This doctrine, which is really "adherence to precedents," mandates that once a case 27 has been decided one way, then another case involving exactly the same point at issue should be decided in the same manner. This doctrine is one of policy grounded on the necessity for securing certainty and stability of judicial decisions. As the renowned jurist Benjamin Cardozo stated in his treatise The Nature of the Judicial Process: It will not do to decide the same question one way between one set of litigants and the opposite way between another. "If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights."

Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of 28 justice in the courts. Our Farias ruling on the equal protection implications of the deemed-resigned provisions cannot be minimalized as mere obiter dictum. It is 29 trite to state that an adjudication on any point within the issues presented by the case cannot be considered as obiter dictum. This rule applies to all pertinent questions that are presented and resolved in the regular course of the consideration of the case and lead up to the 30 final conclusion, and to any statement as to the matter on which the decision is predicated. For that reason, a point expressly decided does not lose its value as a precedent because the disposition of the case is, or might have been, made on some other ground; or even though, by reason of other points in the case, the result reached might have been the same if the court had held, on the particular point, otherwise than it 31 32 did. As we held in Villanueva, Jr. v. Court of Appeals, et al.: A decision which the case could have turned on is not regarded as obiter dictum merely because, owing to the disposal of th e contention, it was necessary to consider another question, nor can an additional reason in a decision, brought forward after the case has been disposed of on one ground, be regarded as dicta. So, also, where a case presents two (2) or more points, any one of which is sufficient to determine the ultimate issue, but the court actually decides all such points, the case as an authoritative precedent as to every point decided, and none of such points can be regarded as having the status of a dictum, and one point should not be denied authority merely because another point was more dwelt on and more fully argued and considered, nor does a decision on one proposition make statements of the court regarding 33 other propositions dicta. (italics supplied) ii. Classification Germane to the Purposes of the Law The Farias ruling on the equal protection challenge stands on solid ground even if reexamined. To start with, the equal protection clause does not require the universal application of the laws to all persons or things without 34 35 distinction. What it simply requires is equality among equals as determined according to a valid classification. The test developed by 36 jurisprudence here and yonder is that of reasonableness, which has four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the purposes of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of the same class.
37

Our assailed Decision readily acknowledged that these deemed-resigned provisions satisfy the first, third and fourth requisites of reasonableness. It, however, proffers the dubious conclusion that the differential treatment of appointive officials vis--vis elected officials is not germane to the purpose of the law, because "whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain," viz.: For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the same influence as the V ice-President who at the same time is appointed to a Cabinet post (in the recent past, elected Vice-Presidents were appointed to take charge of national housing, social welfare development, interior and local government, and foreign affairs). With the fact that they both head executive offices, there is no valid justification to treat them differently when both file their [Certificates of Candidacy] for the elections. Under the present state of our law, the Vice-President, in the example, running this time, let us say, for President, retains his position during the entire election period 38 and can still use the resources of his office to support his campaign. Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice, the Legislature need not address every 39 manifestation of the evil at once; it may proceed "one step at a time." In addressing a societal concern, it must invariably draw lines and 40 make choices, thereby creating some inequity as to those included or excluded. Nevertheless, as long as "the bounds of reasonable 41 choice" are not exceeded, the courts must defer to the legislative judgment. We may not strike down a law merely because the legislative 42 aim would have been more fully achieved by expanding the class. Stated differently, the fact that a legislative classification, by itself, is 43 underinclusive will not render it unconstitutionally arbitrary or invidious. There is no constitutional requirement that regulation must reach 44 each and every class to which it might be applied; that the Legislature must be held rigidly to the choice of regulating all or none. Thus, any person who poses an equal protection challenge must convincingly show that the law creates a classification that is "palpably 45 arbitrary or capricious." He must refute all possible rational bases for the differing treatment, whether or not the Legislature cited those 46 bases as reasons for the enactment, such that the constitutionality of the law must be sustained even if the reasonableness of the 47 classification is "fairly debatable." In the case at bar, the petitioners failed and in fact did not even attempt to discharge this heavy burden. Our assailed Decision was likewise silent as a sphinx on this point even while we submitted the following thesis: ... [I]t is not sufficient grounds for invalidation that we may find that the statutes distinction is unfair, underinclusive, unwise, or not the best 48 solution from a public-policy standpoint; rather, we must find that there is no reasonably rational reason for the differing treatment. In the instant case, is there a rational justification for excluding elected officials from the operation of the deemed resigned provisions? I submit that there is.

An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people. It involves the 50 choice or selection of candidates to public office by popular vote. Considering that elected officials are put in office by their constituents for a definite term, it may justifiably be said that they were excluded from the ambit of the deemed resigned provisions in utmost respect for the mandate of the sovereign will. In other words, complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are concerned. The dichotomized treatment of appointive and elective officials is therefore germane to the purposes of the law. For the law was made not merely to preserve the integrity, efficiency, and discipline of the public service; the Legislature, whose wisdom is outside the rubric of judicial 51 scrutiny, also thought it wise to balance this with the competing, yet equally compelling, interest of deferring to the sovereign will. (emphasis in the original) In fine, the assailed Decision would have us "equalize the playing field" by invalidating provisions of law that seek to restrain the evils from running riot. Under the pretext of equal protection, it would favor a situation in which the evils are unconfined and vagrant, existing at the behest of both appointive and elected officials, over another in which a significant portion thereof is contained. The absurdity of that position is self-evident, to say the least. The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his dissent, that elected officials (vis--vis appointive officials) have greater political clout over the electorate, is indeed a matter worth exploring but not by this Court. Suffice it to say that the remedy lies with the Legislature. It is the Legislature that is given the authority, under our constitutional system, to balance competing interests and thereafter make policy choices responsive to the exigencies of the times. It is certainly within the Legislatures power to make the dee med-resigned provisions applicable to elected officials, should it later decide that the evils sought to be prevented are of such frequency and magnitude as to tilt the balance in favor of expanding the class. This Court cannot and should not arrogate unto itself the power to ascertain and impose on the people the best state of affairs from a public policy standpoint. iii. Mancuso v. Taft Has Been Overruled Finding no Philippine jurisprudence to prop up its equal protection ruling, our assailed Decision adverted to, and extensively cited, Mancuso 52 v. Taft. This was a decision of the First Circuit of the United States Court of Appeals promulgated in March 1973, which struck down as unconstitutional a similar statutory provision. Pathetically, our assailed Decision, relying on Mancuso, claimed: (1) The right to run for public office is "inextricably linked" with two fundamental freedoms freedom of expression and association; (2) Any legislative classification that significantly burdens this fundamental right must be subjected to strict equal protection review; and (3) While the state has a compelling interest in maintaining the honesty and impartiality of its public work force, the deemedresigned provisions pursue their objective in a far too heavy-handed manner as to render them unconstitutional. It then concluded with the exhortation that since "the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too, should follow suit." Our assailed Decisions reliance on Mancuso is completely misplaced. We cannot blink away the fact that the United States Supreme Court effectively overruled Mancuso three months after its promulgation by the United States Court of Appeals. In United States Civil Service 53 54 Commission, et al. v. National Association of Letter Carriers AFL-CIO, et al. and Broadrick, et al. v. State of Oklahoma, et al., the United 55 56 States Supreme Court was faced with the issue of whether statutory provisions prohibiting federal and state employees from taking an active part in political management or in political campaigns were unconstitutional as to warrant facial invalidation. Violation of these provisions results in dismissal from employment and possible criminal sanctions. The Court declared these provisions compliant with the equal protection clause. It held that (i) in regulating the speech of its employees, the state as employer has interests that differ significantly from those it possesses in regulating the speech of the citizenry in general; (ii) the courts must therefore balance the legitimate interest of employee free expression against the interests of the employer in promoting efficiency of public services; (iii) if the employees expression interferes with the maintenance of efficient and regularly functioning services, the limitation on speech is not unconstitutional; and (iv) the Legislature is to be given some flexibility or latitude in ascertaining which positions 57 are to be covered by any statutory restrictions. Therefore, insofar as government employees are concerned, the correct standard of review is an interest-balancing approach, a means-end scrutiny that examines the closeness of fit between the governmental interests and the 58 prohibitions in question. Letter Carriers elucidated on these principles, as follows: Until now, the judgment of Congress, the Executive, and the country appears to have been that partisan political activities by federal employees must be limited if the Government is to operate effectively and fairly, elections are to play their proper part in representative government, and employees themselves are to be sufficiently free from improper influences. The restrictions so far imposed on federal employees are not aimed at particular parties, groups, or points of view, but apply equally to all partisan activities of the type described. They discriminate against no racial, ethnic, or religious minorities. Nor do they seek to control political opinions or beliefs, or to interfere with or influence anyone's vote at the polls.

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But, as the Court held in Pickering v. Board of Education, the government has an interest in regulating the conduct and the speech of its employees that differ(s) significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the (employee), as a citizen, in commenting upon matters of public concern and the interest of the (government), as an employer, in promoting the efficiency of the public services it performs through its employees. Although Congress is free to strike a different balance than it has, if it so chooses, we think the balance it ha s so far struck is sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act. It seems fundamental in the first place that employees in the Executive Branch of the Government, or those working for any of its agencies, should administer the law in accordance with the will of Congress, rather than in accordance with their own or the will of a political party. They are expected to enforce the law and execute the programs of the Government without bias or favoritism for or against any political party or group or the members thereof. A major thesis of the Hatch Act is that to serve this great end of Government-the impartial execution of the laws-it is essential that federal employees, for example, not take formal positions in political parties, not undertake to play substantial roles in partisan political campaigns, and not run for office on partisan political tickets. Forbidding activities like these will reduce the hazards to fair and effective government. There is another consideration in this judgment: it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent. Another major concern of the restriction against partisan activities by federal employees was perhaps the immediate occasion for enactment of the Hatch Act in 1939. That was the conviction that the rapidly expanding Government work force should not be employed to build a powerful, invincible, and perhaps corrupt political machine. The experience of the 1936 and 1938 campaigns convinced Congress that these dangers were sufficiently real that substantial barriers should be raised against the party in power-or the party out of power, for that matterusing the thousands or hundreds of thousands of federal employees, paid for at public expense, to man its political structure and political campaigns. A related concern, and this remains as important as any other, was to further serve the goal that employment and advancement in the Government service not depend on political performance, and at the same time to make sure that Government employees would be free from pressure and from express or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their own beliefs. It may be urged that prohibitions against coercion are sufficient protection; but for many years the joint judgment of the Executive and Congress has been that to protect the rights of federal employees with respect to their jobs and their political acts and beliefs it is not enough merely to forbid one employee to attempt to influence or coerce another. For example, at the hearings in 1972 on proposed legislation for liberalizing the prohibition against political activity, the Chairman of the Civil Service Commission stated that the prohibitions against active participation in partisan political man agement and partisan political campaigns constitute the most significant safeguards against coercion . . .. Perhaps Congress at some time will come to a different view of the realities of political life and Government service; but that is its current view of the matter, and we are not now in any position to dispute it. Nor, in our view, does the Constitution forbid it. Neither the right to associate nor the right to participate in political activities is absolute in any event. xxxx As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations. (italics supplied) Broadrick likewise definitively stated that the assailed statutory provision is constitutionally permissible, viz.: Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan political conduct of state employees. Appellants freely concede that such restrictions serve valid and important state interests, particularly with respect to attracting greater numbers of qualified people by insuring their job security, free from the vicissitudes of the elective process, and by protecting them from political extortion. Rather, appellants maintain that however permissible, even commendable, the goals of s 818 may be, its language is unconstitutionally vague and its prohibitions too broad in their sweep, failing to distinguish between conduct that may be proscribed and conduct that must be permitted. For these and other reasons, appellants assert that the sixth and seventh paragraphs of s 818 are void in toto and cannot be enforced against them or anyone else. We have held today that the Hatch Act is not impermissibly vague. We have little doubt that s 818 is similarly not so vague that men of 62 common intelligence must necessarily guess at its meaning. Whatever other problems there are with s 818, it is all but frivolous to suggest that the section fails to give adequate warnin g of what activities it proscribes or fails to set out explicit standards' for those who must apply it. In the plainest language, it prohibits any state classified employee from being an officer or member of a partisan political club or a candidate for any paid public office. It forbids solicitation of contributions for any political organization, candidacy or other political purpose and taking part in the management or affairs of any political party or in any political campaign. Words inevitably contain germs of uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms in s 818 as partisan, or take part in, or affairs of political parties. But what was said in Letter Carriers, is applicable here: there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.' x x x xxxx
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xxx

[Appellants] nevertheless maintain that the statute is overbroad and purports to reach protected, as well as unprotected conduct, and must therefore be struck down on its face and held to be incapable of any constitutional application. We do not believe that the overbreadth doctrine may appropriately be invoked in this manner here. xxxx The consequence of our departure from traditional rules of standing in the First Amendment area is that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. x x x x x x But the plain import of our cases is, at the very least, that facial over-breadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from pure speech toward conduct and that conduct -even if expressive-falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect-at best a predictioncannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that s 818 is not substantially overbroad and that whatever overbreadth may exist should be cured through case-bycase analysis of the fact situations to which its sanctions, assertedly, may not be applied. Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s 818 is directed, by its terms, at political expression which if engaged in by private persons would plainly be protected by the First and Fourteenth Amendments. But at the same time, s 818 is not a censorial statute, directed at particular groups or viewpoints. The statute, rather, seeks to regulate political activity in an even-handed and neutral manner. As indicted, such statutes have in the past been subject to a less exacting overbreadth scrutiny. Moreover, the fact remains that s 818 regulates a substantial spectrum of conduct that is as manifestly subject to state regulation as the public peace or criminal trespass. This much was established in United Public Workers v. Mitchell, and has been unhesitatingly reaffirmed today in Letter Carriers. Under the decision in Letter Carriers, there is no question that s 818 is valid at least insofar as it forbids classified employees from: soliciting contributions for partisan candidates, political parties, or other partisan political purposes; becoming members of national, state, or local committees of political parties, or officers or committee members in partisan political clubs, or candidates for any paid public office; taking part in the management or affairs of any political party's partisan political campaign; serving as delegates or alternates to caucuses or conventions of political parties; addressing or taking an active part in partisan political rallies or meetings; soliciting votes or assisting voters at the polls or helping in a partisan effort to get voters to the polls; participating in the distribution of partisan campaign literature; initiating or circulating partisan nominating petitions; or riding in caravans for any political party or partisan political candidate. x x x It may be that such restrictions are impermissible and that s 818 may be susceptible of some other improper applications. But, as presently construed, we do not believe that s 818 must be discarded in toto because some persons arguably protected conduct may or may not be caught or chilled by the statute. Section 818 is not substantially overbroad and it not, therefore, unconstitutional on its face. (italics supplied) It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny the principles enunciated in Letter Carriers and Broadrick. He would hold, nonetheless, that these cases cannot be interpreted to mean a reversal of Mancuso, since they "pertain to different types of laws and were decided based on a different set of facts," viz.: In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Ha tch Acts prohibition against "active participation in political management or political campaigns." The plaintiffs desired to campaign for candidates for public office, to encourage and get federal employees to run for state and local offices, to participate as delegates in party conventions, and to hold office in a political club. In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in the (sic) Oklahomas Merit System of Personnel Administration Act restricting the political activities of the States classified civil servants, in much the same manner as the Hatch Act proscribed partisan political activities of federal employees. Prior to the commencement of the action, the appellants actively participated in the 1970 reelection campaign of their superior, and were administratively charged for asking other Corporation Commission employees to do campaign work or to give referrals to persons who might help in the campaign, for soliciting money for the campaign, and for receiving and distributing campaign posters in bulk. Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision. Kenneth Mancuso, a full time police officer and classified civil service employee of the City of Cranston, filed as a candidate for nomination as representative to the Rhode Island General Assembly. The Mayor of Cranston then began the process of enforcing the resign-to-run provision of the City Home Rule Charter. Clearly, as the above-cited US cases pertain to different types of laws and were decided based on a different set of facts, Letter Carriers and Broadrick cannot be interpreted to mean a reversal of Mancuso. x x x (italics in the original) We hold, however, that his position is belied by a plain reading of these cases. Contrary to his claim, Letter Carriers, Broadrick and Mancuso all concerned the constitutionality of resign-to-run laws, viz.:

(1) Mancuso involved a civil service employee who filed as a candidate for nomination as representative to the Rhode Island General Assembly. He assailed the constitutionality of 14.09(c) of the City Home Rule Charter, which prohibits "continuing in the classified service of the city after becoming a candidate for nomination or election to any public office." (2) Letter Carriers involved plaintiffs who alleged that the Civil Service Commission was enforcing, or threatening to enforce, the 63 Hatch Acts prohibition against "active participation in political management or political campaigns" with respect to certain defined activities in which they desired to engage. The plaintiffs relevant to this discussion are: (a) The National Association of Letter Carriers, which alleged that its members were desirous of, among others, running in local elections for offices such as school board member, city council member or mayor; (b) Plaintiff Gee, who alleged that he desired to, but did not, file as a candidate for the office of Borough Councilman in his local community for fear that his participation in a partisan election would endanger his job; and (c) Plaintiff Myers, who alleged that he desired to run as a Republican candidate in the 1971 partisan election for the mayor of West Lafayette, Indiana, and that he would do so except for fear of losing his job by reason of violation of the Hatch Act. The Hatch Act defines "active participation in political management or political campaigns" by cross-referring to the rules made by the Civil Service Commission. The rule pertinent to our inquiry states: 30. Candidacy for local office: Candidacy for a nomination or for election to any National, State, county, or municipal office is not permissible. The prohibition against political activity extends not merely to formal announcement of candidacy but also to the preliminaries leading to such announcement and to canvassing or soliciting support or doing or permitting to be done any act in furtherance of candidacy. The fact that candidacy, is merely passive is immaterial; if an employee acquiesces in the efforts of friends in furtherance of such candidacy such acquiescence constitutes an infraction of the prohibitions against political activity. (italics supplied) Section 9(b) requires the immediate removal of violators and forbids the use of appropriated funds thereafter to pay compensation to these 64 persons. (3) Broadrick was a class action brought by certain Oklahoma state employees seeking a declaration of unconstitutionality of two subparagraphs of Section 818 of Oklahomas Merit System of Personnel Administration Act. Section 818 (7), the paragraph relevant to this discussion, states that "[n]o employee in the classified service shall be a candidate for nomination or election to any paid public office" Violation of Section 818 results in dismissal from employment, possible criminal sanctions and limited state employment ineligibility. Consequently, it cannot be denied that Letter Carriers and Broadrick effectively overruled Mancuso. By no stretch of the imagination could Mancuso still be held operative, as Letter Carriers and Broadrick (i) concerned virtually identical resign-to-run laws, and (ii) were decided by a superior court, the United States Supreme Court. It was thus not surprising for the First Circuit Court of Appeals the same court that 65 decided Mancuso to hold categorically and emphatically in Magill v. Lynch that Mancuso is no longer good law. As we priorly explained: Magill involved Pawtucket, Rhode Island firemen who ran for city office in 1975. Pawtuckets "Little Hatch Act" prohibits cit y employees from 66 engaging in a broad range of political activities. Becoming a candidate for any city office is specifically proscribed, the violation being punished by removal from office or immediate dismissal. The firemen brought an action against the city officials on the ground that that the provision of the city charter was unconstitutional. However, the court, fully cognizant of Letter Carriers and Broadrick, took the position that Mancuso had since lost considerable vitality. It observed that the view that political candidacy was a fundamental interest which could be infringed upon only if less restrictive alternatives were not available, was a position which was no longer viable, since the Supreme Court (finding that the governments interest in regulating both the conduct and speech of its employees differed significantly fro m its interest in regulating those of the citizenry in general) had given little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of Congress, and applying a "balancing" test to determine whether limits on political activity by public employees substantially served government interests which were "important" enough to outweigh 67 the employees First Amendment rights. It must be noted that the Court of Appeals ruled in this manner even though the election in Magill was characterized as nonpartisan, as it was reasonable for the city to fear, under the circumstances of that case, that politically active bureaucrats might use their official power to help political friends and hurt political foes. Ruled the court: The question before us is whether Pawtucket's charter provision, which bars a city employee's candidacy in even a nonpartisan city election, is constitutional. The issue compels us to extrapolate two recent Supreme Court decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers and Broadrick v. Oklahoma. Both dealt with laws barring civil servants from partisan political activity. Letter Carriers reaffirmed United Public Workers v. Mitchell, upholding the constitutionality of the Hatch Act as to federal employees. Broadrick sustained Oklahoma's "Little Hatch Act" against constitutional attack, limiting its holding to Oklahoma's construction that the Act barred only activity in partisan politics. In Mancuso v. Taft, we assumed that proscriptions of candidacy in nonpartisan elections would not be constitutional. Letter Carriers and Broadrick compel new analysis. xxxx What we are obligated to do in this case, as the district court recognized, is to apply the Courts interest balancing approa ch to the kind of nonpartisan election revealed in this record. We believe that the district court found more residual vigor in our opinion in Mancuso v. Taft than remains after Letter Carriers. We have particular reference to our view that political candidacy was a fundamental interest which could be

trenched upon only if less restrictive alternatives were not available. While this approach may still be viable for citizens who are not government employees, the Court in Letter Carriers recognized that the government's interest in regulating both the conduct and speech of its employees differs significantly from its interest in regulating those of the citizenry in general. Not only was United Public Workers v. Mitchell "unhesitatingly" reaffirmed, but the Court gave little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of the Congress. We cannot be more precise than the Third 68 Circuit in characterizing the Court's approach as "some sort of 'balancing' process". It appears that the government may place limits on campaigning by public employees if the limits substantially serve government interests that are "important" enough to outweigh the employees' First Amendment rights. x x x (italics supplied) Upholding thus the constitutionality of the law in question, the Magill court detailed the major governmental interests discussed in Letter Carriers and applied them to the Pawtucket provision as follows: In Letter Carriers[,] the first interest identified by the Court was that of an efficient government, faithful to the Congress rather than to party. The district court discounted this interest, reasoning that candidates in a local election would not likely be committed to a state or national platform. This observation undoubtedly has substance insofar as allegiance to broad policy positions is concerned. But a different kind of possible political intrusion into efficient administration could be thought to threaten municipal government: not into broad policy decisions, but into the particulars of administration favoritism in minute decisions affecting welfare, tax assessments, municipal contracts and purchasing, hiring, zoning, licensing, and inspections. Just as the Court in Letter Carriers identified a second governmental interest in the avoidance of the appearance of "political justice" as to policy, so there is an equivalent interest in avoiding the appearance of political preferment in privileges, concessions, and benefits. The appearance (or reality) of favoritism that the charter's authors evidently feared is not exorcised by the nonpartisan character of the formal election process. Where, as here, party support is a key to successful campaigning, and party rivalry is the norm, the city might reasonably fear that politically active bureaucrats would use their official power to help political friends and hurt political foes. This is not to say that the city's interest in visibly fair and effective administration necessarily justifies a blanket prohibition of all employee campaigning; if parties are not heavily involved in a campaign, the danger of favoritism is less, for neither friend nor foe is as easily identified. A second major governmental interest identified in Letter Carriers was avoiding the danger of a powerful political machine. The Court had in mind the large and growing federal bureaucracy and its partisan potential. The district court felt this was only a minor threat since parties had no control over nominations. But in fact candidates sought party endorsements, and party endorsements proved to be highly effective both in determining who would emerge from the primary election and who would be elected in the final election. Under the prevailing customs, known party affiliation and support were highly significant factors in Pawtucket elections. The charter's authors might reasonably have feared that a politically active public work force would give the incumbent party, and the incumbent workers, an unbreakable grasp on the reins of power. In municipal elections especially, the small size of the electorate and the limited powers of local government may inhibit the growth of interest groups powerful enough to outbalance the weight of a partisan work force. Even when nonpartisan issues and candidacies are at stake, isolated government employees may seek to influence voters or their co-workers improperly; but a more real danger is that a central party structure will mass the scattered powers of government workers behind a single party platform or slate. Occasional misuse of the public trust to pursue private political ends is tolerable, especially because the political views of individual employees may balance each other out. But party discipline eliminates this diversity and tends to make abuse systematic. Instead of a handful of employees pressured into advancing their immediate superior's political ambitions, the entire government work force may be expected to turn out for many candidates in every election. In Pawtucket, where parties are a continuing presence in political campaigns, a carefully orchestrated use of city employees in support of the incumbent party's candidates is possible. The danger is scarcely lessened by the openness of Pawtucket's nominating procedure or the lack of party labels on its ballots. The third area of proper governmental interest in Letter Carriers was ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity. The district court did not address this factor, but looked only to the possibility of a civil servant using his position to influence voters, and held this to be no more of a threat than in the most nonpartisan of elections. But we think that the possibility of coercion of employees by superiors remains as strong a factor in municipal elections as it was in Letter Carriers. Once again, it is the systematic and coordinated exploitation of public servants for political ends that a legislature is most likely to see as the primary threat of employees' rights. Political oppression of public employees will be rare in an entirely nonpartisan system. Some superiors may be inclined to ride herd on the politics of their employees even in a nonpartisan context, but without party officials looking over their shoulders most supervisors will prefer to let employees go their own ways. In short, the government may constitutionally restrict its employees' participation in nominally nonpartisan elections if political parties play a large role in the campaigns. In the absence of substantial party involvement, on the other hand, the interests identified by the Letter Carriers Court lose much of their force. While the employees' First Amendment rights would normally outbalance these diminished interests, we do not suggest that they would always do so. Even when parties are absent, many employee campaigns might be thought to endanger at least one strong public interest, an interest that looms larger in the context of municipal elections than it does in the national elections considered in Letter Carriers. The city could reasonably fear the prospect of a subordinate running directly against his superior or running for a position that confers great power over his superior. An employee of a federal agency who seeks a Congressional seat poses less of a direct challenge to the command and discipline of his agency than a fireman or policeman who runs for mayor or city council. The possibilities of internal discussion, cliques, and political bargaining, should an employee gather substantial political support, are considerable. (citations omitted) The court, however, remanded the case to the district court for further proceedings in respect of the petitioners overbreadt h charge. Noting that invalidating a statute for being overbroad is "not to be taken lightly, much less to be taken in the dark," the court held: The governing case is Broadrick, which introduced the doctrine of "substantial" overbreadth in a closely analogous case. Under Broadrick, when one who challenges a law has engaged in constitutionally unprotected conduct (rather than unprotected speech) and when the challenged law is aimed at unprotected conduct, "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Two major uncertainties attend the doctrine: how to distinguish speech from conduct, and how to define "substantial" overbreadth. We are spared the first inquiry by Broadrick itself. The plaintiffs in that case had solicited support for a

candidate, and they were subject to discipline under a law proscribing a wide range of activities, including soliciting contributions for political candidates and becoming a candidate. The Court found that this combination required a substantial overbreadth approach. The facts of this case are so similar that we may reach the same result without worrying unduly about the sometimes opaque distinction between speech and conduct. The second difficulty is not so easily disposed of. Broadrick found no substantial overbreadth in a statute restricting partisan campaigning. Pawtucket has gone further, banning participation in nonpartisan campaigns as well. Measuring the substantiality of a statute's overbreadth apparently requires, inter alia, a rough balancing of the number of valid applications compared to the number of potentially invalid applications. Some sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable. The question is a matter of degree; it will never be possible to say that a ratio of one invalid to nine valid applications makes a law substantially overbroad. Still, an overbreadth challenger has a duty to provide the court with some idea of the number of potentially invalid applications the statute permits. Often, simply reading the statute in the light of common experience or litigated cases will suggest a number of probable invalid applications. But this case is different. Whether the statute is overbroad depends in large part on the number of elections that are insulated from party rivalry yet closed to Pawtucket employees. For all the record shows, every one of the city, state, or federal elections in Pawtucket is actively contested by political parties. Certainly the record suggests that parties play a major role even in campaigns that often are entirely nonpartisan in other cities. School committee candidates, for example, are endorsed by the local Democratic committee. The state of the record does not permit us to find overbreadth; indeed such a step is not to be taken lightly, much less to be taken in the dark. On the other hand, the entire focus below, in the short period before the election was held, was on the constitutionality of the statute as applied. Plaintiffs may very well feel that further efforts are not justified, but they should be afforded the opportunity to demonstrate that the charter forecloses access to a significant number of offices, the candidacy for which by municipal employees would not pose the possible threats to government efficiency and integrity which Letter Carriers, as we have interpreted it, deems significant. Accordingly, we remand for consideration of plaintiffs' overbreadth claim. (italics supplied, citations omitted) Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt that Mancuso v. Taft, heavily relied upon by the ponencia, has 69 effectively been overruled. As it is no longer good law, the ponencias exhortation that "[since] the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too, should follow suit" 70 is misplaced and unwarranted. Accordingly, our assailed Decisions submission that the right to run for public office is "inextricably linked" with two fundamental freedoms those of expression and association lies on barren ground. American case law has in fact never recognized a fundamental right to express 71 72 73 ones political views through candidacy, as to invoke a rigorous standard of review. Bart v. Telford pointedly stated that "[t]he First Amendment does not in terms confer a right to run for public office, and this court has held that it does not do so by implication either." Thus, 74 ones interest in seeking office, by itself, is not entitled to constitutional protection. Moreover, one cannot bring ones action under the rubric of freedom of association, absent any allegation that, by running for an elective position, one is advancing the political ideas of a particular 75 set of voters. Prescinding from these premises, it is crystal clear that the provisions challenged in the case at bar, are not violative of the equal protection clause. The deemed-resigned provisions substantially serve governmental interests (i.e., (i) efficient civil service faithful to the government and the people rather than to party; (ii) avoidance of the appearance of "political justice" as to policy; (iii) avoidance of the danger of a powerful political machine; and (iv) ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity). These are interests that are important enough to outweigh the non-fundamental right of appointive officials and employees to seek elective office.1avvphi1 En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v. Fashing and Morial, et al. v. Judiciary Commission of the State 77 of Louisiana, et al. to buttress his dissent. Maintaining that resign-to-run provisions are valid only when made applicable to specified officials, he explains: U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run provisions when applied to specified or particular officials, 78 as distinguished from all others, under a classification that is germane to the purposes of the law. These resign-to-run legislations were not expressed in a general and sweeping provision, and thus did not violate the test of being germane to the purpose of the law, the second requisite for a valid classification. Directed, as they were, to particular officials, they were not overly encompassing as to be overbroad. (emphasis in the original) This reading is a regrettable misrepresentation of Clements and Morial. The resign-to-run provisions in these cases were upheld not because they referred to specified or particular officials (vis--vis a general class); the questioned provisions were found valid precisely because the Court deferred to legislative judgment and found that a regulation is not devoid of a rational predicate simply because it happens to be incomplete. In fact, the equal protection challenge in Clements revolved around the claim that the State of Texas failed to explain why some public officials are subject to the resign-to-run provisions, while others are not. Ruled the United States Supreme Court: Article XVI, 65, of the Texas Constitution provides that the holders of certain offices automatically resign their positions if they become candidates for any other elected office, unless the unexpired portion of the current term is one year or less. The burdens that 65 imposes on candidacy are even less substantial than those imposed by 19. The two provisions, of course, serve essentially the same state interests. The District Court found 65 deficient, however, not because of the nature or extent of the provision's restriction on candidacy, but because of the manner in which the offices are classified. According to the District Court, the classification system cannot survive equal protection scrutiny, because Texas has failed to explain sufficiently why some elected public officials are subject to 65 and why others are not. As with the case of 19, we conclude that 65 survives a challenge under the Equal Protection Clause unless appellees can show that there is no rational predicate to the classification scheme.
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The history behind 65 shows that it may be upheld consistent with the "one step at a time" approach that this Court has undertaken with regard to state regulation not subject to more vigorous scrutiny than that sanctioned by the traditional principles. Section 65 was enacted in 1954 as a transitional provision applying only to the 1954 election. Section 65 extended the terms of those offices enumerated in the provision from two to four years. The provision also staggered the terms of other offices so that at least some county and local offices would be contested at each election. The automatic resignation proviso to 65 was not added until 1958. In that year, a similar automatic resignation provision was added in Art. XI, 11, which applies to officeholders in home rule cities who serve terms longer than two years. Section 11 allows home rule cities the option of extending the terms of municipal offices from two to up to four years. Thus, the automatic resignation provision in Texas is a creature of the State's electoral reforms of 1958. That the State did not go further in applying the automatic resignation provision to those officeholders whose terms were not extended by 11 or 65, absent an invidious purpose, is not the sort of malfunctioning of the State's lawmaking process forbidden by the Equal Protection Clause. A regulation is not devoid of a rational predicate simply because it happens to be incomplete. The Equal Protection Clause does not forbid Texas to restrict one elected officeholder's candidacy for another elected office unless and until it places similar restrictions on other officeholders. The provision's language and its history belie any notion that 65 serves the invidious purpose of denying access to the political process to identifiable classes of potential candidates. (citations omitted and italics supplied) Furthermore, it is unfortunate that the dissenters took the Morial line that "there is no blanket approval of restrictions on the right of public employees to become candidates for public office" out of context. A correct reading of that line readily shows that the Court only meant to confine its ruling to the facts of that case, as each equal protection challenge would necessarily have to involve weighing governmental interests vis--vis the specific prohibition assailed. The Court held: The interests of public employees in free expression and political association are unquestionably entitled to the protection of the first and fourteenth amendments. Nothing in today's decision should be taken to imply that public employees may be prohibited from expressing their private views on controversial topics in a manner that does not interfere with the proper performance of their public duties. In today's decision, there is no blanket approval of restrictions on the right of public employees to become candidates for public office. Nor do we approve any general restrictions on the political and civil rights of judges in particular. Our holding is necessarily narrowed by the methodology employed to reach it. A requirement that a state judge resign his office prior to becoming a candidate for non-judicial office bears a reasonably necessary relation to the achievement of the state's interest in preventing the actuality or appearance of judicial impropriety. Such a requirement offends neither the first amendment's guarantees of free expression and association nor the fourteenth amendment's guarantee of equal protection of the laws. (italics supplied) Indeed, the Morial court even quoted Broadrick and stated that: In any event, the legislature must have some leeway in determining which of its employment positions require restrictions on partisan political activities and which may be left unregulated. And a State can hardly be faulted for attempting to limit the positions upon which such restrictions are placed. (citations omitted) V. Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code Do Not Suffer from Overbreadth Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code on equal protection ground, our assailed Decision struck them down for being overbroad in two respects, viz.: (1) The assailed provisions limit the candidacy of all civil servants holding appointive posts without due regard for the type of 79 position being held by the employee seeking an elective post and the degree of influence that may be attendant thereto; and (2) The assailed provisions limit the candidacy of any and all civil servants holding appointive positions without due regard for the type of office being sought, whether it be partisan or nonpartisan in character, or in the national, municipal or barangay level. Again, on second look, we have to revise our assailed Decision. i. Limitation on Candidacy Regardless of Incumbent Appoint ive Officials Position, Valid According to the assailed Decision, the challenged provisions of law are overly broad because they apply indiscriminately to all civil servants holding appointive posts, without due regard for the type of position being held by the employee running for elective office and the degree of influence that may be attendant thereto. Its underlying assumption appears to be that the evils sought to be prevented are extant only when the incumbent appointive official running for elective office holds an influential post. Such a myopic view obviously fails to consider a different, yet equally plausible, threat to the government posed by the partisan potential of a large and growing bureaucracy: the danger of systematic abuse perpetuated by a "powerful political machine" that has amassed "the 80 scattered powers of government workers" so as to give itself and its incumbent workers an "unbreakable grasp on the reins of power." As 81 elucidated in our prior exposition: Attempts by government employees to wield influence over others or to make use of their respective positions (apparently) to promote their own candidacy may seem tolerable even innocuous particularly when viewed in isolation from other similar attempts by other government

employees. Yet it would be decidedly foolhardy to discount the equally (if not more) realistic and dangerous possibility that such seemingly disjointed attempts, when taken together, constitute a veiled effort on the part of an emerging central party structure to advance its own agenda through a "carefully orchestrated use of [appointive and/or elective] officials" coming from various levels of the bureaucracy. [T]he avoidance of such a "politically active public work force" which could give an emerging political machine an "unbreaka ble grasp on the reins of power" is reason enough to impose a restriction on the candidacies of all appointive public officials without further distinction as to the type of positions being held by such employees or the degree of influence that may be attendant thereto. (citations omitted) ii. Limitation on Candidacy Regardless of Type of Office Sought, Valid The assailed Decision also held that the challenged provisions of law are overly broad because they are made to apply indiscriminately to all civil servants holding appointive offices, without due regard for the type of elective office being sought, whether it be partisan or nonpartisan in character, or in the national, municipal or barangay level. This erroneous ruling is premised on the assumption that "the concerns of a truly partisan office and the temptations it fosters are sufficiently 82 different from those involved in an office removed from regular party politics [so as] to warrant distinctive treatment," so that restrictions on candidacy akin to those imposed by the challenged provisions can validly apply only to situations in which the elective office sought is partisan in character. To the extent, therefore, that such restrictions are said to preclude even candidacies for nonpartisan elective offices, the challenged restrictions are to be considered as overbroad. Again, a careful study of the challenged provisions and related laws on the matter will show that the alleged overbreadth is more apparent than real. Our exposition on this issue has not been repudiated, viz.: A perusal of Resolution 8678 will immediately disclose that the rules and guidelines set forth therein refer to the filing of certificates of candidacy and nomination of official candidates of registered political parties, in connection with the May 10, 2010 National and Local 83 Elections. Obviously, these rules and guidelines, including the restriction in Section 4(a) of Resolution 8678, were issued specifically for purposes of the May 10, 2010 National and Local Elections, which, it must be noted, are decidedly partisan in character. Thus, it is clear that the restriction in Section 4(a) of RA 8678 applies only to the candidacies of appointive officials vying for partisan elective posts in the May 10, 2010 National and Local Elections. On this score, the overbreadth challenge leveled against Section 4(a) is clearly unsustainable. Similarly, a considered review of Section 13 of RA 9369 and Section 66 of the Omnibus Election Code, in conjunction with other related laws on the matter, will confirm that these provisions are likewise not intended to apply to elections for nonpartisan public offices. The only elections which are relevant to the present inquiry are the elections for barangay offices, since these are the only elections in this 84 country which involve nonpartisan public offices. In this regard, it is well to note that from as far back as the enactment of the Omnibus Election Code in 1985, Congress has intended that these nonpartisan barangay elections be governed by special rules, including a separate rule on deemed resignations which is found in Section 39 of the Omnibus Election Code. Said provision states: Section 39. Certificate of Candidacy. No person shall be elected punong barangay or kagawad ng sangguniang barangay unless he files a sworn certificate of candidacy in triplicate on any day from the commencement of the election period but not later than the day before the beginning of the campaign period in a form to be prescribed by the Commission. The candidate shall state the barangay office for which he is a candidate. xxxx Any elective or appointive municipal, city, provincial or national official or employee, or those in the civil or military service, including those in government-owned or-controlled corporations, shall be considered automatically resigned upon the filing of certificate of candidacy for a barangay office. Since barangay elections are governed by a separate deemed resignation rule, under the present state of law, there would be no occasion to apply the restriction on candidacy found in Section 66 of the Omnibus Election Code, and later reiterated in the proviso of Section 13 of RA 9369, to any election other than a partisan one. For this reason, the overbreadth challenge raised against Section 66 of the Omnibus Election 85 Code and the pertinent proviso in Section 13 of RA 9369 must also fail. In any event, even if we were to assume, for the sake of argument, that Section 66 of the Omnibus Election Code and the corresponding provision in Section 13 of RA 9369 are general rules that apply also to elections for nonpartisan public offices, the overbreadth challenge would still be futile. Again, we explained: In the first place, the view that Congress is limited to controlling only partisan behavior has not received judicial imprimatur, because the general proposition of the relevant US cases on the matter is simply that the government has an interest in regulating the conduct and speech of its employees that differs significantly from those it possesses in connection with regulation of the speech of the citizenry in 86 general. Moreover, in order to have a statute declared as unconstitutional or void on its face for being overly broad, particularly where, as in this case, "conduct" and not "pure speech" is involved, the overbreadth must not only be real, but substantial as well, judged in relation to the statutes 87 plainly legitimate sweep.

In operational terms, measuring the substantiality of a statutes overbreadth would entail, amo ng other things, a rough balancing of the 88 number of valid applications compared to the number of potentially invalid applications. In this regard, some sensitivity to reality is needed; 89 an invalid application that is far-fetched does not deserve as much weight as one that is probable. The question is a matter of 90 degree. Thus, assuming for the sake of argument that the partisan-nonpartisan distinction is valid and necessary such that a statute which fails to make this distinction is susceptible to an overbreadth attack, the overbreadth challenge presently mounted must demonstrate or provide this Court with some idea of the number of potentially invalid elections (i.e. the number of elections that were insulated from party 91 rivalry but were nevertheless closed to appointive employees) that may in all probability result from the enforcement of the statute. The state of the record, however, does not permit us to find overbreadth. Borrowing from the words of Magill v. Lynch, indeed, such a step is 92 not to be taken lightly, much less to be taken in the dark, especially since an overbreadth finding in this case would effectively prohibit the 93 State from enforcing an otherwise valid measure against conduct that is admittedly within its power to proscribe. This Court would do well to proceed with tiptoe caution, particularly when it comes to the application of the overbreadth doctrine in the analysis of statutes that purportedly attempt to restrict or burden the exercise of the right to freedom of speech, for such approach is 94 manifestly strong medicine that must be used sparingly, and only as a last resort. In the United States, claims of facial overbreadth have been entertained only where, in the judgment of the court, the possibility that protected speech of others may be muted and perceived grievances left to fester (due to the possible inhibitory effects of overly broad statutes) 95 outweighs the possible harm to society in allowing some unprotected speech or conduct to go unpunished. Facial overbreadth has likewise not been invoked where a limiting construction could be placed on the challenged statute, and where there are readily apparent constructions 96 that would cure, or at least substantially reduce, the alleged overbreadth of the statute. In the case at bar, the probable harm to society in permitting incumbent appointive officials to remain in office, even as they actively pursue elective posts, far outweighs the less likely evil of having arguably protected candidacies blocked by the possible inhibitory effect of a potentially overly broad statute.a1f In this light, the conceivably impermissible applications of the challenged statutes which are, at best, bold predictions cannot justify invalidating these statutes in toto and prohibiting the State from enforcing them against conduct that is, and has for more than 100 years 97 been, unquestionably within its power and interest to proscribe. Instead, the more prudent approach would be to deal with these 98 conceivably impermissible applications through case-by-case adjudication rather than through a total invalidation of the statute itself. Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion for Reconsideration, intervenor Drilon stated that a 99 number of high-ranking Cabinet members had already filed their Certificates of Candidacy without relinquishing their posts. Several 100 COMELEC election officers had likewise filed their Certificates of Candidacy in their respective provinces. Even the Secretary of Justice 101 had filed her certificate of substitution for representative of the first district of Quezon province last December 14, 2009 even as her 102 position as Justice Secretary includes supervision over the City and Provincial Prosecutors, who, in turn, act as Vice-Chairmen of the 103 respective Boards of Canvassers. The Judiciary has not been spared, for a Regional Trial Court Judge in the South has thrown his hat into the political arena. We cannot allow the tilting of our electoral playing field in their favor. For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678 and Section 13 of RA 9369, which merely reiterate Section 66 of the Omnibus Election Code, are not unconstitutionally overbroad. IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondents and the intervenors Motions for Reconsideration; REVERSE and SET ASIDE this Courts December 1, 2009 Decision; DISMISS the Petition; and ISSUE this Resolution declaring as not UNCONSTITUTIONAL (1) Section 4(a) of COMELEC Resolution No. 8678, (2) the second proviso in the third paragraph of Section 13 of Republic Act No. 9369, and (3) Section 66 of the Omnibus Election Code. SO ORDERED. REYNATO S. PUNO

CONCURRING OPINION CARPIO, J.: I concur with the ponencia of Chief Justice Reynato S. Puno. The filing of a Certificate of Candidacy for an elective position is, by the very nature of the act, an electioneering or partisan political activity. Two provisions of the Constitution, taken together, mandate that civil service employees cannot engage in any electioneering or partisan political activity except to vote. Thus, the Constitution provides: Section 2(4), Article IX-B of the Constitution No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political activity.

Section 5(3), Article XVI of the Constitution No member of the military shall engage, directly or indirectly, in any partisan political activity, except to vote. During the deliberations of the Constitutional Commission on these provisions of the Constitution, it was clear that the exercise of the right to vote is the only non-partisan political activity a citizen can do. All other political activities are deemed partisan. Thus, Commissioner Christian 1 Monsod declared that, "As a matter of fact, the only non partisan political activity one can engage in as a citizen is voting." Indisputably, any political activity except to vote is a partisan political activity. Section 79(b) of the Omnibus Election Code implements this by declaring that any act designed to elect or promote the election of a candidate is an electioneering or partisan political activity, thus: The term "election campaign" or "partisan political activity"refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office xxx." Filing a certificate of candidacy is obviously a partisan political activity. First, the mere filing of a Certificate of Candidacy is a definitive announcement to the world that a person will actively solicit the votes of the electorate to win an elective public office. Such an announcement is already a promotion of the candidates election to public office. Indeed, once a person becomes an official candidate, he abandons the role of a mere passive voter in an election, and assumes the role of a political partisan, a candidate promoting his own candidacy to public office. Second, only a candidate for a political office files a Certificate of Candidacy. A person merely exercising his or her right to vote does not. A candidate for a political office is necessarily a partisan political candidate because he or she is contesting an elective office against other political candidates. The candidate and the electorate know that there are, more often than not, other candidates vying for the same elective office, making the contest politically partisan. Third, a candidate filing his or her Certificate of Candidacy almost always states in the Certificate of Candidacy the name of the political party to which he or she belongs. The candidate will even attach to his or her Certificate of Candidacy the certification of his or her political party that he or she is the official candidate of the political party. Such certification by a political party is obviously designed to promote the election of the candidate. Fourth, the constitutional ban prohibiting civil servants from engaging in partisan political activities is intended, among others, to keep the civil service non-partisan. This constitutional ban is violated when a civil servant files his or her Certificate of Candidacy as a candidate of a political party. From the moment the civil servant files his or her Certificate of Candidacy, he or she is immediately identified as a political partisan because everyone knows he or she will prepare, and work, for the victory of his or her political party in the elections. Fifth, the constitutional ban prohibiting civil servants from engaging in partisan political activities is also intended to prevent civil servants from using their office, and the resources of their office, to promote their candidacies or the candidacies of other persons. We have seen the spectacle of civil servants who, after filing their certificates of candidacies, still cling to their public office while campaigning during office hours. Sixth, the constitutional ban prohibiting civil servants from engaging in partisan political activities is further intended to prevent conflict of interest. We have seen Comelec officials who, after filing their certificates of candidacies, still hold on to their public office. Finally, filing of a Certificate of Candidacy is a partisan political act that ipso facto operates to consider the candidate deemed resigned from public office pursuant to paragraph 3, Section 11 of R.A. No. 8436, as amended by R.A. No. 9369, as well as Section 66 of the Omnibus Election Code, as amended. Accordingly, I vote to grant respondent Comelecs Motion for Reconsideration. ANTONIO T. CARPIO Associate Justice

DISSENTING OPINION NACHURA, J.: I vote to maintain this Courts December 1, 2009 Decision. The automatic resignation rule on appointive government officials and employees running for elective posts is, to my mind, unconstitutional. I therefore respectfully register my dissent to the resolution of the majority granting the motion for reconsideration. I earnestly believe that by this resolution, the majority refused to rectify an unjust rule, leaving in favor of a discriminatory state regulation and disregarding the primacy of the peoples fundamental rights to the equal protection of the laws.

Let it be recalled that, on December 1, 2009, the Court rendered its Decision granting the petition and declaring as unconstitutional the second proviso in the third paragraph of Section 13 of Republic Act (R.A.) No. 9369, Section 66 of the Omnibus Election Code (OEC) and 1 Section 4(a) of Commission on Elections (COMELEC) Resolution No. 8678. Claiming to have legal interest in the matter in litigation, Senator Manuel A. Roxas filed, on December 14, 2009, his Omnibus Motion for Leave of Court to: (a) Intervene in the Instant Case; (b) Admit Attached Motion for Reconsideration; and (c) If Necessary, Set the Instant 2 Case for Oral Arguments. On the same date, respondent COMELEC, through its Law Department, moved for the reconsideration of the aforesaid December 1, 2009 3 Decision. Expressing a similar desire, Franklin M. Drilon, a former senator and a senatorial candidate in the 2010 elections, filed, on December 17, 4 2009, his Motion for Leave to Intervene and to Admit the Attached Motion for Reconsideration in Intervention. On December 28, 2009, the Integrated Bar of the Philippines (IBP), Cebu City Chapter, also filed its Motion for Leave to Intervene and 6 Motion for Reconsideration in Intervention. In a related development, on January 8, 2010, the Office of the Solicitor General (OSG), which initially represented the COMELEC in the proceedings herein, this time disagreed with the latter, and, instead of moving for the reconsideration of the December 1, 2009 Decision, 7 moved for clarification of the effect of our declaration of unconstitutionality. Subsequently, Tom V. Apacible, a congressional candidate in the 2010 elections, filed, on January 11, 2010, his Motion to Intervene and for 8 the Reconsideration of the Decision dated December 1, 2009. In its January 12, 2010 Resolution, the Court required petitioners to comment on the aforesaid motions. On February 1, 2010, petitioners filed their consolidated comment on the motions. Parenthetically, petitioner Quinto admitted that he did not pursue his plan to run for an elective office. Petitioner Tolentino, on the other hand, disclosed that he filed his certificate of candidacy but that he had recently resigned from his post in the executive department. These developments could very well be viewed by the Court as having rendered this case moot and academic. However, I refuse to proceed to such a conclusion, considering that the issues, viewed in relation to other appointive civil servants running for elective office, remain ubiquitously present. Thus, the issues in the instant case could fall within the classification of controversies that are capable of repetition yet evading review. I then implore that the Court rule on the motions. The intervention The motions for intervention should be denied. Section 2, Rule 19 of the Rules of Court explicitly states that motions to intervene may be filed 11 at any time "before the rendition of judgment." Obviously, as this Court already rendered judgment on December 1, 2009, intervention may 12 no longer be allowed. The movants, Roxas, Drilon, IBP-Cebu City Chapter, and Apacible, cannot claim to have been unaware of the pendency of this much publicized case. They should have intervened prior to the rendition o f this Courts Decision on December 1, 2009. To 13 allow their intervention at this juncture is unwarranted and highly irregular. While the Court has the power to suspend the application of procedural rules, I find no compelling reason to excuse movants procedural lapse and allow their much belated intervention. Further, a perusal of their pleadings-in-intervention reveals that they merely restated the points and arguments in the earlier dissenting opinions of Chief Justice Puno and Senior Associate Justices Carpio and Carpio Morales. These very same points, incidentally, also constitute the gravamen of the motion for reconsideration filed by respondent COMELEC. Thus, even as the Court should deny the motions for intervention, it is necessary to, pass upon the issues raised therein, because they were the same issues raised in respondent COMELECs motion for reconsideration. The COMELECs motion for reconsideration Interestingly, in its motion for reconsideration, the COMELEC does not raise a matter other than those already considered and discussed by the Court in the assailed decision. As aforesaid, the COMELEC merely echoed the arguments of the dissenters. I remain unpersuaded. I wish to reiterate the Courts earlier declaration that the second proviso in the third paragraph of Section 13 of R.A. No. 9369, Section 66 of the OEC and Section 4(a) of COMELEC Resolution No. 8678 are unconstitutional for being violative of the equal protection clause and for being overbroad. In considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their certificates of candidacy (CoCs), but not considering as resigned all other civil servants, specifically the elective ones, the law unduly discriminates against the first class. The fact alone that there is substantial distinction between the two classes does not justify such disparate treatment. Constitutional law jurisprudence requires that the classification must and should be germane to the purposes of the law. As clearly explained in the assailed
10 9 5

decision, whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain. Indeed, a candidate, whether holding an appointive or an elective office, may use his position to promote his candidacy or to wield a dangerous or coercive influence on the electorate. Under the same scenario, he may also, in the discharge of his official duties, be swayed by political considerations. Likewise, he may neglect his or her official duties, as he will predictably prioritize his campaign. Chief Justice Puno, in his dissent to the assailed decision, even acknowledges that the "danger of systemic abuse" remains present whether the involved candidate holds an appointive or an elective office, thus Attempts by government employees to wield influence over others or to make use of their respective positions (apparently) to promote their own candidacy may seem tolerableeven innocuousparticularly when viewed in isolation from other similar attempts by other government employees. Yet it would be decidedly foolhardy to discount the equally (if not more) realistic and dangerous possibility that such seemingly disjointed attempts, when taken together, constitute a veiled effort on the part of a reigning political party to advance its own agenda through 14 a "carefully orchestrated use of [appointive and/or elective] officials" coming from various levels of the bureaucracy. To repeat for emphasis, classifying candidates, whether they hold appointive or elective positions, and treating them differently by considering the first as ipso facto resigned while the second as not, is not germane to the purposes of the law, because, as clearly shown, the measure is not reasonably necessary to, nor does it necessarily promote, the fulfillment of the state interest sought to be served by the statute. In fact, it may not be amiss to state that, more often than not, the elective officials, not the appointive ones, exert more coercive influence on the electorate, with the greater tendency to misuse the powers of their office. This is illustrated by, among others, the proliferation of "private armies" especially in the provinces. It is common knowledge that "private armies" are backed or even formed by elective officials precisely for the latter to ensure that the electorate will not oppose them, be cowed to submit to their dictates and vote for them. To impose a prohibitive measure intended to curb this evil of wielding undue influence on the electorate and apply the prohibition only on appointive officials is not only downright ineffectual, but is also, as shown in the assailed decision, offensive to the equal protection clause. Furthermore, as the Court explained in the assailed decision, this ipso facto resignation rule is overbroad. It covers all civil servants holding appointive posts without distinction, regardless of whether they occupy positions of influence in government or not. Certainly, a utility worker, a messenger, a chauffeur, or an industrial worker in the government service cannot exert the same influence as that of a Cabinet member, an undersecretary or a bureau head. Parenthetically, it is also unimaginable how an appointive utility worker, compared to a governor or a mayor, can form his own "private army" to wield undue influence on the electorate. It is unreasonable and excessive, therefore, to impose a blanket prohibitionone intended to discourage civil servants from using their positions to influence the votes on all civil servants without considering the nature of their positions. Let it be noted, that, despite their employment in the government, civil servants remain citizens of the country, entitled to enjoy the civil and political rights granted to them in a democracy, including the right to aspire for elective public office. In addition, this general provision on automatic resignation is directed to the activity of seeking any and all public elective offices, whether partisan or nonpartisan in character, whether in the national, municipal or barangay level. No compelling state interest has been shown to justify such a broad, encompassing and sweeping application of the law. It may also be pointed out that this automatic resignation rule has no pretense to be the exclusive and only available remedy to curb the uncontrolled exercise of undue influence and the feared "danger of systemic abuse." As we have explained in the assailed decision, our Constitution and our body of laws are replete with provisions that directly address these evils. We reiterate our earlier pronouncement that specific evils require specific remedies, not overly broad measures that unduly restrict guaranteed freedoms. It should be stressed that when the Court struck down (in the earlier decision) the assailed provisions, the Court did not act in a manner inconsistent with Section 2(4) of Article IX-B of the Constitution, which reads: Sec. 2. x x x. (4) No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political activity. or with Section 5(3), Article XVI of the Constitution, which reads: Sec. 5. x x x. (3) Professionalism in the armed forces and adequate remuneration and benefits of its members shall be a prime concern of the State. The armed forces shall be insulated from partisan politics. No member of the military shall engage, directly or indirectly, in any partisan political activity, except to vote. Neither does the Courts earlier ruling infringe on Section 55, Chapter 8, Title I, Book V of the Administrative Code of 1987 , which reads: Sec. 55. Political Activity.No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of candidates for public office whom he supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code.

"Partisan political activity" includes every form of solicitation of the electors vote in favor of a specific candidate. Section 79(b) of the OEC defines "partisan political activity" as follows: SEC. 79. Definitions.As used in this Code: xxxx (b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include: (1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate; (2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate; (3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office; (4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or (5) Directly or indirectly soliciting votes, pledges or support for or against a candidate. The foregoing enumerated acts if performed for the purpose of enhancing the chances of aspirants for nominations for candidacy to a public office by a political party, aggroupment, or coalition of parties shall not be considered as election campaign or partisan political activity. Public expressions or opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms against probable candidates proposed to be nominated in a forthcoming political party convention shall not be construed as part of any election campaign or partisan political activity contemplated under this Article. Given the aforequoted Section 79(b), it is obvious that the filing of a Certificate of Candidacy (CoC) for an elective position, while it may be a political activity, is not a "partisan political activity" within the contemplation of the law. The act of filing is only an announcement of ones intention to run for office. It is only an aspiration for a public office, not yet a promotion or a solicitation of votes for the election or defeat of a candidate for public office. In fact, even after the filing of the CoC but before the start of the campaign period, there is yet no candidate whose 16 election or defeat will be promoted. Rosalinda A. Penera v. Commission on Elections and Edgar T. Andanar instructs that any person who files his CoC shall only be considered a candidate at the start of the campaign period. Thus, in the absence of a "candidate," the mere filing of CoC cannot be considered as an "election campaign" or a "partisan political activity." Section 79 of the OEC does not even consider as "partisan political activity" acts performed for the purpose of enhancing the chances of aspirants for nominations for candidacy to a public office. Thus, when appointive civil servants file their CoCs, they are not engaging in a "partisan political activity" and, therefore, do not transgress or violate the Constitution and the law. Accordingly, at that moment, there is no valid basis to consider them as ipso facto resigned from their posts. There is a need to point out that the discussion in Farias v. The Executive Secretary, relative to the differential treatment of the two classes of civil servants in relation to the ipso facto resignation clause, is obiter dictum. That discussion is not necessary to the decision of the case, the main issue therein being the constitutionality of the repealing clause in the Fair Election Act. Further, unlike in the instant case, no direct challenge was posed in Farias to the constitutionality of the rule on the ipso facto resignation of appointive officials. In any event, the Court en banc, in deciding subsequent cases, can very well reexamine, as it did in the assailed decision, its earlier pronouncements and even abandon them when perceived to be incorrect. Let it also be noted that Mancuso v. Taft is not the heart of the December 1, 2009 Decision. Mancuso was only cited to show that resign-torun provisions, such as those which are specifically involved herein, have been stricken down in the United States for unduly burdening First Amendment rights of employees and voting rights of citizens, and for being overbroad. Verily, in our jurisdiction, foreign jurisprudence only enjoys a persuasive influence on the Court. Thus, the contention that Mancuso has been effectively overturned by subsequent American 19 20 cases, such as United States Civil Service Commission v. National Association of Letter Carriers and Broadrick v. State of Oklahoma, is not controlling. Be that as it may, a closer reading of these latter US cases reveals that Mancuso is still applicable. On one hand, Letter Carriers and Broadrick, which are based on United Public Workers of America v. Mitchell, involve provisions prohibiting Federal employees from engaging in partisan political activities or political campaigns. In Mitchell, the appellants sought exemption from the implementation of a sentence in the Hatch Act, which reads: "No officer or employee in 22 the executive branch of the Federal Government x x x shall take any active part in political management or in political campaigns." Among 23 the appellants, only George P. Poole violated the provision by being a ward executive committeeman of a political party and by being 24 politically active on election day as a worker at the polls and a paymaster for the services of other party workers.
21 18 17

15

In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Ha tch Acts prohibition against "active participation in political management or political campaigns." The plaintiffs desired to campaign for candidates for public office, to encourage and get federal employees to run for state and local offices, to participate as delegates in party conventions, and to hold 25 office in a political club. In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in the Oklahomas Merit System of Personnel Administration Act restricting the political activities of the States classified civil servants, in much the same manner as the Hatch Act 26 proscribed partisan political activities of federal employees. Prior to the commencement of the action, the appellants actively participated in the 1970 reelection campaign of their superior, and were administratively charged for asking other Corporation Commission employees to do campaign work or to give referrals to persons who might help in the campaign, for soliciting money for the campaign, and for receiving and 27 distributing campaign posters in bulk. Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision. Kenneth Mancuso, a full-time police officer and classified civil service employee of the City of Cranston, filed his candidacy for nomination as representative to the Rhode Island General 28 Assembly. The Mayor of Cranston then began the process of enforcing the resign-to-run provision of the City Home Rule Charter. Clearly, as the above-cited US cases pertain to different types of laws and were decided based on a different set of facts, Letter Carriers and 29 Broadrick cannot be interpreted to mean a reversal of Mancuso. Thus, in Magill v. Lynch, the same collegial court which decided Mancuso was so careful in its analysis that it even remanded the case for consideration on the overbreadth claim. The Magill court stated thusPlaintiffs may very well feel that further efforts are not justified, but they should be afforded the opportunity to demonstrate that the charter forecloses access to a significant number of offices, the candidacy for which by municipal employees would not pose the possible threats to government efficiency and integrity which Letter Carriers, as we have interpreted it, deems significant. Accordingly, we remand for 30 consideration of plaintiffs overbreadth claim. As observed by the Court (citing Clements v. Fashing ) in the December 1, 2009 Decision, U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run rules when applied to specified or particular officials, as distinguished from all others, under a classification that is germane to the purposes of the law. These resign-to-run legislations were not expressed in a general and sweeping provision, and thus did not violate the test of being germane to the purpose of the law, the second requisite for a valid classification. Directed, as they were, to particular officials, they were not overly encompassing as to be overbroad. In fact, Morial v. Judiciary Commission of the State of 32 Louisiana, where the resign-to-run provision pertaining to judges running for political offices was upheld, declares that "there is no blanket 33 approval of restriction on the right of public employees to become candidates for public office." The Morial court instructed thus Because the judicial office is different in key respects from other offices, the state may regulate its judges with the differences in mind. For example the contours of the judicial function make inappropriate the same kind of particularized pledges of conduct in office that are the very stuff of campaigns for most non-judicial offices. A candidate for the mayoralty can and often should announce his determination to effect some program, to reach a particular result on some question of city policy, or to advance the interests of a particular group. It is expected that his decisions in office may be predetermined by campaign commitment. Not so the candidate for judicial office. He cannot, consistent with the proper exercise of his judicial powers, bind himself to decide particular cases in order to achieve a given programmatic result. Moreover, the judge acts on individual cases and not broad programs. The judge legislates but interstitially; the progress through the law of a particular judge's social and political preferences is, in Mr. Justice Holmes' words, "confined from molar to molecular motions." As one safeguard of the special character of the judicial function, Louisiana's Code of Judicial Conduct bars candidates for judicial office from making "pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office." Candidates for non-judicial office are not subject to such a ban; in the conduct of his campaign for the mayoralty, an erstwhile judge is more free to make promises of post-campaign conduct with respect both to issues and personnel, whether publicly or privately, than he would be were he a candidate for re-election to his judgeship. The state may reasonably conclude that such pledges and promises, though made in the course of a campaign for non-judicial office, might affect or, even more plausibly, appear to affect the post-election conduct of a judge who had returned to the bench following an electoral defeat. By requiring resignation of any judge who seeks a non-judicial office and leaving campaign conduct unfettered by the restrictions which would be applicable to a sitting judge, Louisiana has drawn a line which protects the state's interests in judicial integrity without sacrificing the equally important interests in robust campaigns for elective office in the executive or legislative branches of government. This analysis applies equally to the differential treatment of judges and other office holders. A judge who fails in his bid for a post in the state legislature must not use his judgeship to advance the cause of those who supported him in his unsuccessful campaign in the legislature. In contrast, a member of the state legislature who runs for some other office is not expected upon his return to the legislature to abandon his advocacy of the interests which supported him during the course of his unsuccessful campaign. Here, too, Louisiana has drawn a line which 34 rests on the different functions of the judicial and non-judicial office holder. Indeed, for an ipso facto resignation rule to be valid, it must be shown that the classification is reasonably necessary to attain the objectives of the law. Here, as already explained in the assailed decision, the differential treatment in the application of this resign-to-run rule is not germane to the purposes of the law, because whether one holds an appointive office or an elective one, the evils sought to be prevented are not effectively addressed by the measure. Thus, the ineluctable conclusion that the concerned provisions are invalid for being unconstitutional. Without unnecessarily preempting the resolution of any subsequent actual case or unwittingly giving an advisory opinion, the Court, in the December 1, 2009 Decision, in effect, states that what should be implemented are the other provisions of Philippine laws (not the concerned unconstitutional provisions) that specifically and directly address the evils sought to be prevented by the measure. It is highly speculative then to contend that members of the police force or the armed forces, if they will not be considered as resigned when they file their COCs, is a "disaster waiting to happen." There are, after all, appropriate laws in place to curb abuses in the government service.
31

The invalidation of the ipso facto resignation provisions does not mean the cessation in operation of other provisions of the Constitution and of existing laws. Section 2(4) of Article IX-B and Section 5(3), Article XVI of the Constitution, and Section 55, Chapter 8, Title I, Book V of the Administrative Code of 1987 still apply. So do other statutes, such as the Civil Service Laws, OEC, the Anti-Graft Law, the Code of Conduct and Ethical Standards for Public Officials and Employees, and related laws. Covered civil servants running for political offices who later on 35 engage in "partisan political activity" run the risk of being administratively charged. Civil servants who use government funds and property for campaign purposes, likewise, run the risk of being prosecuted under the Anti-Graft and Corrupt Practices Act or under the OEC on election offenses. Those who abuse their authority to promote their candidacy shall be made liable under the appropriate laws. Let it be stressed at this point that the said laws provide for specific remedies for specific evils, unlike the automatic resignation provisions that are sweeping in application and not germane to the purposes of the law. To illustrate, we hypothetically assume that a municipal election officer, who is an employee of the COMELEC, files his CoC. Given the invalidation of the automatic resignation provisions, the said election officer is not considered as ipso facto resigned from his post at the precise moment of the filing of the CoC. Thus, he remains in his post, and his filing of a CoC cannot be taken to be a violation of any provision of the Constitution or any statute. At the start of the campaign period, however, if he is still in the government service, that is, if he has not voluntarily resigned, and he, at the same time, engages in a "partisan political activity," then, he becomes vulnerable to prosecution under the Administrative Code, under civil service laws, under the Anti-Graft and Corrupt Practices Act or under the OEC. Upon the proper action being filed, he could, thus, be disqualified from running for office, or if elected, prevented from assuming, or if he had already assumed office, be removed from, office. At this juncture, it may even be said that Mitchell, Letter Carriers and Broadrick, the cases earlier cited by Chief Justice Puno and Associate Justices Carpio and Carpio-Morales, support the proposition advanced by the majority in the December 1, 2009 Decision. While the provisions on the ipso facto resignation of appointive civil servants are unconstitutional for being violative of the equal protection clause and for being overbroad, the general provisions prohibiting civil servants from engaging in "partisan political activity" remain valid and operational, and should be strictly applied. The COMELECs motion for reconsideration should, therefore, b e denied. The OSGs motion for clarification In its motion, the OSG pleads that this Court clarify whether, by declaring as unconstitutional the concerned ipso facto resignation provisions, 36 the December 1, 2009 Decision intended to allow appointive officials to stay in office during the entire election period. The OSG points out that the official spokesperson of the Court explained before the media that "the decision would in effect allow appointive officials to stay on in 37 their posts even during the campaign period, or until they win or lose or are removed from office." I pose the following response to the motion for clarification. The language of the December 1, 2009 Decision is too plain to be mistaken. The Court only declared as unconstitutional Section 13 of R.A. No. 9369, Section 66 of the OEC and Section 4(a) of COMELEC Resolution No. 8678. The Court never stated in the decision that appointive civil servants running for elective posts are allowed to stay in office during the entire election period. The only logical and legal effect, therefore, of the Cour ts earlier declaration of unconstitutionality of the ipso facto resignation provisions is that appointive government employees or officials who intend to run for elective positions are not considered automatically resigned from their posts at the moment of filing of their CoCs. Again, as explained above, other Constitutional and statutory provisions do not cease in operation and should, in fact, be strictly implemented by the authorities. Let the full force of the laws apply. Then let the axe fall where it should. ANTONIO EDUARDO B. NACHURA Associate Justice PENERA, vs comelec G. R. No. 181613 x--------------------------------------------------x This Petition for Certiorari with Prayer for the Issuance of a Writ of Preliminary Injunction and/or Temporary Restraining Order
[2] [1]

under

Rule 65, in relation to Rule 64 of the Rules of Court, seeks the nullification of the Resolution dated 30 January 2008 of the Commission on Elections (COMELEC) en banc. Said Resolution denied the Motion for Reconsideration of the earlier Resolution
[3]

dated 24 July 2007 of the

COMELEC Second Division in SPA No. 07-224, ordering the disqualification of herein petitioner Rosalinda A. Penera (Penera) as a candidate for the position of mayor of the Municipality of Sta. Monica, Surigao del Norte (Sta. Monica) in the 2007 Synchronized National and Local Elections. The antecedents of the case, both factual and procedural, are set forth hereunder: Penera and private respondent Edgar T. Andanar (Andanar) were mayoralty candidates in Sta. Monica during the 14 May 2007 elections.

On 2 April 2007, Andanar filed before the Office of the Regional Election Director (ORED), Caraga Region (Region XIII), a Petition for [4] [5] Disqualification against Penera, as well as the candidates for Vice-Mayor and Sangguniang Bayanwho belonged to her political party, for unlawfully engaging in election campaigning and partisan political activity prior to the commencement of the campaign period. The petition was docketed as SPA No. 07-224. Andanar claimed that on 29 March 2007 a day before the start of the authorized campaign period on 30 March 2007 Penera and her partymates went around the different barangays in Sta. Monica, announcing their candidacies and requesting the people to vote for them [6] on the day of the elections. Attached to the Petition were the Affidavits of individuals who witnessed the said incident. Penera alone filed an Answer to the Petition on 19 April 2007, averring that the charge of premature campaigning was not true. Although Penera admitted that a motorcade did take place, she explained that it was simply in accordance with the usual practice in nearby cities and provinces, where the filing of certificates of candidacy (COCs) was preceded by a motorcade, which dispersed soon after the completion of such filing. In fact, Penera claimed, in the motorcade held by her political party, no person made any speech, not even any of the candidates. Instead, there was only marching music in the background and a grand standing for the purpose of raising the hands of the [8] candidates in the motorcade. Finally, Penera cited Barroso v. Ampig in her defense, wherein the Court supposedly ruled that a motorcade held by candidates during the filing of their COCs was not a form of political campaigning. Also on 19 April 2007, Andanar and Penera appeared with their counsels before the ORED-Region XIII, where they agreed to [9] submit their position papers and other evidence in support of their allegations. After the parties filed their respective Position Papers, the records of the case were transmitted to the COMELEC main office in Manila for adjudication. It was subsequently raffled to the COMELEC Second Division. While SPA No. 07-224 was pending before the COMELEC Second Division, the 14 May 2007 elections took place and, as a result thereof, Penera was proclaimed the duly elected Mayor of Sta. Monica. Penera soon assumed office on 2 July 2002. On 24 July 2007, the COMELEC Second Division issued its Resolution in SPA No. 07-224, penned by Commissioner Nicodemo T. Ferrer (Ferrer), which disqualified Penera from continuing as a mayoralty candidate in Sta. Monica, for engaging in premature campaigning, in violation of Sections 80 and 68 of the Omnibus Election Code. The COMELEC Second Division found that: On the afternoon of 29 March 2007, the 1st [sic] day to file the certificates of candidacy for local elective positions and a day before the start of the campaign period for the May 14, 2007 elections [some of the members of the political party Partido Padajon Surigao], headed by their mayoralty candidate Datty Penera, filed their respective Certificates of Candidacy before the Municipal Election Officer of Sta. Monica, Surigao del Norte. Accompanied by a bevy of supporters, [Penera and her partymates] came to the municipal COMELEC office on board a convoy of two (2) trucks and an undetermined number of motorcycles, laden with balloons ad [sic] posters/banners containing names and pictures and the municipal positions for which they were seeking election. Installed with [sic] one of the trucks was a public speaker sound subsystem which broadcast [sic] the intent the [sic] run in the coming elections. The truck had the posters of Penera attached to it proclaiming his [sic] candidacy for mayor. The streamer of [Mar Longos, a candidate for the position of Board Member,] was proudly seen at the vehicles side. The group proceeded to motorcade until the barangays of Bailan, Libertad and as afar [sic] as Mabini almost nine (9) kilometers from Sta. Monica. [Penera and her partymates] were seen aboard the vehicles and throwing candies to the residents and onlookers. Various affidavits and pictures were submitted elucidating the above-mentioned facts. The above facts were also admitted in the Answer, the Position Paper and during the hearings conducted for this case, the only defense propounded by [Penera] is that such acts allegedly do not constitute campaigning and is therefore not proscribed by the pertinent election laws. What we however find disturbing is [Peneras] reference to the Ampig Case as the justification for the acts committed by [her]. There is really no reference to the acts or similar acts committed by [Penera] as having been considered as not constituting political campaign or partisan political activity. The issue in that case is whether or not the defect of the lack of a certification against non-forum [sic] shopping should result to the immediate dismissal of the election cases filed in that case. There is nothing in said case justifying a motorcade during the filing of certificates of candidacy. [Peneras] reliance thereon is therefore misplaced and of no potency at all. However, the photos submitted by [Andanar] only identified [Penera] and did not have any notation identifying or indicating any of the other [candidates from Peneras party]. It cannot be conclusively proven that the other [candidates from Peneras party] were indeed with Penera during the Motorcade. More importantly, the Answer and the Position Paper contain admissions referring only to [Penera]. There is therefore no justification for a whole sale [sic] disqualification of all the [candidates from Peneras party], as even the petition failed to mention particularly the participation of the other [10] individual [party members].
[7]

The afore-quoted findings of fact led the COMELEC Second Division to decree:

PREMISES CONSIDERED, this Commission resolves to disqualify [Penera] but absolves the other [candidates from Peneras party] from violation of section 80 and 68 of the Omnibus Elections [sic] Code.
[11] [12]

Commissioner Florentino A. Tuason, Jr. (Tuason) wrote a Separate Opinion on the 24 July 2007 Resolution. Although Commissioner Tuason concurred with the ponente, he stressed that, indeed, Penera should be made accountable for her actions after the filing of her COC on 29 March 2007. Prior thereto, there was no candidate yet whose candidacy would have been enhanced by the premature campaigning. It was the third member of the COMELEC Second Division, Commissioner Rene V. Sarmiento (Sarmiento) who put forth a Dissenting [13] Opinion on the 24 July 2007 Resolution. Commissioner Sarmiento believed that the pieces of evidence submitted by Andanar did not sufficiently establish probable cause that Penera engaged in premature campaigning, in violation of Sections 80 and 68 of the Omnibus Election Code. The two photocopied pictures, purporting to be those of Penera, did not clearly reveal what was actually happening in the truck or who were the passengers thereof. Likewise, the Affidavits seemed to have been prepared and executed by one and the same person because they had similar sentence construction and form, and they were sworn to before the same attesting officer. Penera filed before the COMELEC en banc a Motion for Reconsideration of the 24 July 2007 Resolution of the COMELEC Second Division, maintaining that she did not make any admission on the factual matters stated in the appealed resolution. Penera also contended that the pictures and Affidavits submitted by Andanar should not have been given any credence. The pictures were mere photocopies of the originals and lacked the proper authentication, while the Affidavits were taken ex parte, which would almost always make [15] them incomplete and inaccurate. Subsequently, Penera filed a Supplemental Motion for Reconsideration, explaining that supporters spontaneously accompanied Penera and her fellow candidates in filing their COCs, and the motorcade that took place after the filing was actually part of the dispersal of said supporters and their transportation back to their respective barangays. In the Resolution dated 30 January 2008, the COMELEC en banc denied Peneras Motion for Reconsideration, disposing thus: WHEREFORE, this Commission RESOLVES to DENY the instant Motion for Reconsideration filed by [Penera] [16] for UTTER LACK OF MERIT. The COMELEC en banc ruled that Penera could no longer advance the arguments set forth in her Motion for Reconsideration and Supplemental Motion for Reconsideration, given that she failed to first express and elucidate on the same in her Answer and Position Paper. Penera did not specifically deny the material averments that the motorcade went as far as Barangay Mabini, announcing their candidacy and requesting the people to vote for them on Election Day, despite the fact that the same were clearly propounded by Andanar in his Petition for Disqualification and Position Paper. Therefore, these material averments should be considered admitted. Although the COMELEC en banc agreed that no undue importance should be given to sworn statements or affidavits submitted as evidence, this did not mean that such affidavits should not be given any evidentiary weight at all. Since Penera neither refuted the material averments in Andanars Petition and the Affidavits attached thereto nor submitted countervailing evidence, then said Affidavits, even if taken ex parte, deserve some degree of importance. The COMELEC en banc likewise conceded that the pictures submitted by Andanar as evidence would have been unreliable, but only if they were presented by their lonesome. However, said pictures, together with Peneras admissions and the Affidavits of Andanars witnesses, constituted sufficient evidence to establish Peneras violation of the rule against premature campaigning. Lastly, the COMELEC en banc accused Penera of deliberately trying to mislead the Commission by citing Barroso, given that the said case was not even remotely applicable to the case at bar.
[14]

Consistent with his previous stand, Commissioner Sarmiento again dissented from the 30 January 2008 Resolution of the COMELEC en banc. He still believed that Andanar was not able to adduce substantial evidence that would support the claim of violation of election laws. Particularly, Commissioner Sarmiento accepted Peneras explanation that the motorcade conducted after the filing by Penera and the other candidates of their COCs was merely part of the dispersal of the spontaneous gathering of their supporters. The incident was only in accord with normal human social experience. till undeterred, Penera filed the instant Petition before us, praying that the Resolutions dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division and en banc, respectively, be declared null and void for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. In a Resolution dated 4 March 2008, we issued a Temporary Restraining Order (TRO), enjoining the COMELEC from implementing the assailed Resolutions, on the condition that Penera post a bond in the amount of P5,000.00. We also directed COMELEC and Andanar to comment on the instant Petition. After the COMELEC, through the Office of the Solicitor General (OSG), and Andanar filed their respective Comments on the [20] Petition at bar, we required Penera, in a Resolution dated 17 June 2008, to file a Reply. However, as no Reply was filed in due time, we [21] dismissed Peneras Petition in a Resolution dated 14 October 2008, in accordance with Rule 56, Section 5(e) of the Rules of [22] [23] Court. Penera subsequently filed an Ex Parte Motion to Admit Reply, which we treated as a Motion for Reconsideration of the [24] Resolution dated 14 October 2008. On 11 November 2008, we issued another Resolution reinstating Peneras Petition. Penera presents the following issues for our consideration: Whether or not [Penera] has engaged in an election campaign or partisan political activity outside the campaign period. Whether the contents of the complaint are deemed admitted for failure of [Penera] to specifically deny the same. Whether or not [Andanar] has presented competent and substantial evidence to justify a conclusion that [Penera] violated Section 80 and 68 of the Omnibus Election Code.
[19] [18]

[17]

Whether or not [the COMELEC] committed grave abuse of discretion amounting to lack of or in excess of jurisdiction in finding that the act of [Penera] in conducting a motorcade before the filing of her certificate of candidacy constitutes premature campaigning. Whether or not [the COMELEC] committed grave abuse of discretion amounting to lack of or in excess of jurisdiction when it resolves [sic] to disqualify [Penera] despite the failure of [Andanar] to present competent, admissible and substantial evidence to prove [the] violation of Section 68 and 80 of the Omnibus Election Code. Penera claims that the COMELEC exercised its discretion despotically, arbitrarily and whimsically in disqualifying her as a mayoralty candidate in Sta. Monica on the ground that she engaged in premature campaigning. She asserts that the evidence adduced by Andanar was grossly insufficient to warrant the ruling of the COMELEC. Penera insists that the COMELEC Second Division erred in its findings of fact, basically adopting Andanars allegations which, contrary to the belief of the COMELEC Second Division, Penera never admitted. Penera maintains that the motorcade was spontaneous and unplanned, and the supporters merely joined Penera and the other candidates from her party along the way to, as well as within the premises of, the office of the COMELEC Municipal Election Officer. Andanars averments that after Penera and the other candidates from her party filed their COCs, they held a motorcade in the different barangays of Sta. Monica, waived their hands to the public and threw candies to the onlookers were not supported by competent substantial evidence. Echoing Commissioner Sarmientos dissent from the assailed COMELEC Resolutions, Penera argues that too much weight and credence were given to the pictures and Affidavits submitted by Andanar. The declaration by the COMELEC that it was Penera in the pictures is tenuous and erroneous, as the COMELEC has no personal knowledge of Peneras identity, and the said pictures do not clearly reveal the faces of the individuals and the contents of the pos ters therein. In the same vein, the Affidavits of Andanars known supporters, executed almost a month after Andanar filed his Peti tion for Disqualification before the ORED-Region XIII, were obviously prepared and executed by one and the same person, because they have a similar sentence construction, and computer font and form, and were even sworn to before the same attesting officer on the same date. We find no merit in the instant Petition. The questions of fact Crystal clear from the above arguments is that Penera is raising only questions of fact in her Petition presently before us. We do not find any reason to pass upon the same, as this Court is not a trier of facts. It is not the function of the Court to review, examine and evaluate or weigh the probative value of the evidence presented. A question of fact would arise in such an event. The sole function of a writ of certiorari is to address issues of want of jurisdiction or grave abuse of discretion, and it does not [25] include a review of the tribunals evaluation of the evidence. Because of its fact-finding facilities and its knowledge derived from actual experience, the COMELEC is in a peculiarly advantageous position to evaluate, appreciate and decide on factual questions before it. Factual findings of the COMELEC, based on its own assessments and duly supported by evidence, are conclusive on this Court, more so in the absence of a grave abuse of discretion, arbitrariness, fraud, or error of law in the questioned resolutions. Unless any of these causes are [26] clearly substantiated, the Court will not interfere with the findings of fact of the COMELEC. Grave abuse of discretion is such capricious and whimsical exercise of judgment equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave, as when it is exercised arbitrarily or despotically by reason of passion or personal hostility. The abuse must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to [27] act at all in contemplation of law. e find no grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the COMELEC Second Division in disqualifying Penera as a mayoralty candidate in Sta. Monica in the Resolution dated 24 July 2007; and also on the part of the COMELEC en banc in denying Peneras Motion for Reconsideration on the Resolution dated 30 January 2008. Said Resolutions are sufficiently supported by [28] substantial evidence, meaning, such evidence as a reasonable mind might accept as adequate to support a conclusion. The prohibited act of premature campaigning is defined under Section 80 of the Omnibus Election Code, to wit: SECTION 80. Election campaign or partisan political activity outside campaign period . It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period: Provided, That political parties may hold political conventions or meetings to nominate their official candidates within thirty days before the commencement of the campaign period and forty-five days for Presidential and Vice-Presidential election. (Emphasis ours.) If the commission of the prohibited act of premature campaigning is duly proven, the consequence of the violation is clearly spelled out in Section 68 of the said Code, which reads: SECTION. 68. Disqualifications. - Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having xxx (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. (Emphases ours.) In the case at bar, it had been sufficiently established , not just by Andanars evidence, but also those of Penera herself, that Penera and her partymates, after filing their COCs on 29 March 2007, participated in a motorcade which passed through the different barangays of Sta. Monica, waived their hands to the public, and threw candies to the onlookers. Indeed, Penera expressly admitted in her Position Paper that:

Respondents actually had a motorcade of only two (2) jeppneys [sic] and ten (10) motorcycles after filing their Certificate of Candidacy at 3:00 P.M., March 29, 2007 without any speeches made and only one streamer of a board [29] member Candidate and multi-colored balloons attached to the jeppneys [sic] and motorcycles. (Emphasis ours.) Additionally, the Joint Affidavit of Marcial Dolar, Allan Llatona, and Renante Platil, attached to Peneras Position Paper, g ave an even more straightforward account of the events, thus: 1. That on March 29, 2007 at 3:00 P.M. at Sta. Monica, Surigao del Norte, Mayoralty Candidates Rosalinda CA. Penera [sic] and her parties of four (4) kagawads filed their certificate of candidacy at the COMELEC Office; 2. That their [sic] was a motorcade consisting of two jeppneys [sic] and 10 motorcycles after actual registration with the COMELEC with jeeps decorated with balloons and a streamer of Margarito Longos, Board Member Candidate;

3. That the motorcade proceeded to three (3) barangays out of the 11 barangays while supporters were throwing sweet candies to the crowd; 4. That there was merriment and marching music without mention of any name of the candidates more particularly leadcandidate Rosalinda CA. Penera [sic]; 5. That we were in the motorcade on that afternoon only riding in one of the jeepneys.
[30]

(Emphases ours.)

In view of the foregoing admissions by Penera and her witnesses, Penera cannot now be allowed to adopt a conflicting position. More importantly, the conduct of a motorcade is a form of election campaign or partisan political activity, falling squarely within the ambit of Section 79(b)(2) of the Omnibus Election Code, on [h]olding political caucuses, conferences, meetings, rallies, par ades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda fo r or against a candidate[.] A [31] motorcade is a procession or parade of automobiles or other motor vehicles. The conduct thereof during election periods by the candidates and their supporters is a fact that need not be belabored due to its widespread and pervasive practice. The obvious purpose of the conduct of motorcades is to introduce the candidates and the positions, to which they seek to be elected, to the voting public; or to make them more visible so as to facilitate the recognition and recollection of their names in the minds of the voters come election time. Unmistakably, motorcades are undertaken for no other purpose than to promote the election of a particular candidate or candidates. In the instant Petition, Penera never denied that she took part in the conduct of the motorcade after she filed her COC on the day before the start of the campaign period. She merely claimed that the same was not undertaken for campaign purposes. Penera proffered the excuse that the motorcade was already part of the dispersal of the supporters who spontaneously accompanied Penera and her partymates in filing their COCs. The said supporters were already being transported back to their respective barangays after the COC filing. Penera stressed that no speech was made by any person, and there was only background marching music and a grand standing for the purpose of raising the hands of the candidates in the motorcade. We are not convinced.

As we previously noted, Penera and her witnesses admitted that the vehicles, consisting of two jeepneys and ten motorcycles, were festooned with multi-colored balloons; the motorcade went around three barangays in Sta. Monica; and Penera and her partymates waved their hands and threw sweet candies to the crowd. With vehicles, balloons, and even candies on hand, Penera can hardly persuade us that the motorcade was spontaneous and unplanned. For violating Section 80 of the Omnibus Election Code, proscribing election campaign or partisan political activity outside the campaign period, Penera must be disqualified from holding the office of Mayor of Sta. Monica. The questions of law The dissenting opinion, however, raises the legal issue that Section 15 of Republic Act No. 8436, as amended by Republic Act No. 9369, provides a new definition of the term candidate, as a result of which, premature campaigning may no longer be committ ed. Under Section 79(a) of the Omnibus Election Code, a candidate is any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of partie s. Republic Act No. 8436, enacted on 22 December 1997, authorized the COMELEC to use an automated election system for the process of voting, counting of votes, and canvassing/consolidating the results of the national and local elections. The statute also mandated the COMELEC to acquire automated counting machines, computer equipment, devices and materials; and to adopt new electoral forms and printing materials. In particular, Section 11 of Republic Act No. 8436 provided for the specifications of the official ballots to be used in the automated election system and the guidelines for the printing thereof, the relevant portions of which state: SECTION 11. Official ballot. - The Commission shall prescribe the size and form of the official ballot which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size. A fixed space where the chairman of the Board of Election inspectors shall affix his/her signature to authenticate the official ballot shall be provided. Both sides of the ballots may be used when necessary.
[32]

For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections : Provided, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice-president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the positions of President, Vice President, Senators and candidates under the Party-List System as well as petitions for registration and/or manifestation to participate in the Party-List System shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on March 27, 1998. (Emphases ours.) On 10 February 2007, Republic Act No. 9369 took effect. Section 13 of Republic Act No. 9369 amended Section 11 of Republic Act No. 8436 and renumbered the same as the new Section 15 of Republic Act No. 8436. The pertinent portions of Section 15 of Republic Act No. 8436, as amended by Republic Act No. 9369, now read: SECTION.15. Official Ballot. - The Commission shall prescribe the format of the electronic display and/or the size and form of the official ballot, which shall contain the titles of the position to be filled and/or the proposition to be voted upon in an initiative, referendum or plebiscite. Where practicable, electronic displays must be constructed to present the names of all candidates for the same position in the same page or screen, otherwise, the electronic displays must be constructed to present the entire ballot to the voter, in a series of sequential pages, and to ensure that the voter sees all of the ballot options on all pages before completing his or her vote and to allow the voter to review and change all ballot choices prior to completing and casting his or her ballot. Under each position to be filled, the names of candidates shall be arranged alphabetically by surname and uniformly indicated using the same type size. The maiden or married name shall be listed in the official ballot, as preferred by the female candidate. Under each proposition to be vote upon, the choices should be uniformly indicated using the same font and size. A fixed space where the chairman of the board of election inspector shall affix her/her signature to authenticate the official ballot shall be provided. For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in government-owned or-controlled corporations, shall be considered ipso factor resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certification of candidacy. (Emphases ours.) In view of the third paragraph of Section 15 of Republic Act No. 8436, as amended, the Dissenting Opinion argues that Section 80 of [34] the Omnibus Election Code can not be applied to the present case since, as the Court held in Lanot v. Commission on Elections, the election campaign or partisan activity, which constitute the prohibited premature campaigning, should be designed to promote the election or defeat of a particular candidate or candidates . Under present election laws, while a person may have filed his/her COC within the prescribed period for doing so, said person shall not be considered a candidate until the start of the campaign period. Thus, prior to the start of the campaign period, there can be no election campaign or partisan political activity designed to promote the election or defeat of a particular candidate to public office because there is no candidate to speak of. According to the Dissenting Opinion, even if Peneras acts before the start of the campaign period constitute election campaigning or partisan political activities, these are not punishable under Section 80 of the Omnibus Election Code given that she was not yet a candidate at that time. On the other hand, Peneras acts, if committed within the campaign period, when she was already a candidate, are likewise not covered by Section 80 as this provision punishes only acts outside the campaign period. The Dissenting Opinion ultimately concludes that because of Section 15 of Republic Act No. 8436, as amended, the prohibited act of premature campaigning in Section 80 of the Omnibus Election Code, is practically impossible to commit at any time. We disagree. Section 80 of the Omnibus Election Code remains relevant and applicable despite Section 15 of Republic Act No. 8436, as amended. A close reading of the entire Republic Act No. 9369, which amended Republic Act No. 8436, would readily reveal that that it did not contain an express repeal of Section 80 of the Omnibus Election Code. An express repeal is one wherein a statute [35] declares, usually in its repealing clause, that a particular and specific law, identified by its number or title, is repealed. Absent this specific requirement, an express repeal may not be presumed. Although the title of Republic Act No. 9369 particularly mentioned the amendment of Batas Pambansa Blg. 881, or the Omnibus Election Code, to wit: An Act Amending Republic Act No. 8436, Entitled "An Act Authorizing the Commission on Elections to Use an Automated Election System x x x, Amending for the Purpose Batas Pambansa Blg. 881, As Amended x x x. (Emphasis ours.), said title explicitly mentions, not the repeal, but the amendment of Batas Pambansa Blg. 881. Such fact is indeed very material. Repeal of a law means its complete abrogation by the enactment of a subsequent statute, whereas the amendmentof a statute means an alteration in the [36] law already existing, leaving some part of the original still standing. Section 80 of the Omnibus Election Code is not even one of the specific provisions of the said code that were expressly amended by Republic Act No. 9369. Additionally, Section 46,
[37] [33]

the repealing clause of Republic Act No. 9369, states that:

Sec. 46. Repealing Clause. All laws, presidential decrees, executive orders, rules and regulations or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly.

Section 46 of Republic Act No. 9369 is a general repealing clause. It is a clause which predicates the intended repeal under the condition that a substantial conflict must be found in existing and prior acts. The failure to add a specific repealing clause indicates that the intent was not to repeal any existing law, unless an irreconcilable inconsistency and repugnancy exist in the terms of the new and old [38] laws. This latter situation falls under the category of an implied repeal. Well-settled is the rule in statutory construction that implied repeals are disfavored. In order to effect a repeal by implication, the later statute must be so irreconcilably inconsistent and repugnant with the existing law that they cannot be made to reconcile and stand together. The clearest case possible must be made before the inference of implied repeal may be drawn, for inconsistency is never presumed. There must be a showing of repugnance clear and convincing in character. The language used in the later statute must be such as to render it irreconcilable with what had been formerly enacted. An [39] inconsistency that falls short of that standard does not suffice. Courts of justice, when confronted with apparently conflicting statutes, should endeavor to reconcile the same instead of declaring outright the invalidity of one as against the other. Such alacrity should be avoided. The wise policy is for the judge to harmonize them if this is possible, bearing in mind that they are equally the handiwork of the same legislature, and so give effect to both while at the same time also [40] according due respect to a coordinate department of the government. To our mind, there is no absolute and irreconcilable incompatibility between Section 15 of Republic Act No. 8436, as amended, and Section 80 of the Omnibus Election Code, which defines the prohibited act of premature campaigning. It is possible to harmonize and reconcile these two provisions and, thus, give effect to both. The following points are explanatory: First, Section 80 of the Omnibus Election Code, on premature campaigning, explicitly provides that [i]t s hall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity, except during the campaign period. Very simply, premature campaigning may be committed even by a person who is not a candidate. For this reason, the plain declaration in Lanot that [w]hat Section 80 of the Omnibus Election Code prohibits is an election campaign [41] or partisan political activity by a candidate outside of the campaign period, is clearly erroneous. Second, Section 79(b) of the Omnibus Election Code defines election campaign or partisan political activity in the following manner: SECTION 79. Definitions. - As used in this Code: xxxx (b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include: (1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate; (2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate; (3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office; (4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or (5) Directly or indirectly soliciting votes, pledges or support for or against a candidate. True, that pursuant to Section 15 of Republic Act No. 8436, as amended, even after the filing of the COC but before the start of the campaign period, a person is not yet officially considered a candidate. Nevertheless, a person, upon the filing of his/her COC, already explicitly declares his/her intention to run as a candidate in the coming elections. The commission by such a person of any of the acts enumerated under Section 79(b) of the Omnibus Election Code (i.e., holding rallies or parades, making speeches, etc.) can, thus, be logically and reasonably construed as for the purpose of promoting his/her intended candidacy. When the campaign period starts and said person proceeds with his/her candidacy, his/her intent turning into actuality, we can already consider his/her acts, after the filing of his/her COC and prior to the campaign period, as the promotion of his/her election as a candidate, hence, constituting premature campaigning, for which he/she may be disqualified. Also, conversely, if said person, for any reason, withdraws his/her COC before the campaign period, then there is no point to view his/her acts prior to said period as acts for the promotion of his/her election as a candidate. In the latter case, there can be no premature campaigning as there is no candidate, whose [42] disqualification may be sought, to begin with. Third, in connection with the preceding discussion, the line in Section 15 of Republic Act No. 8436, as amended, which provides that any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period, does not mean that the

acts constituting premature campaigning can only be committed, for which the offender may be disqualified, during the campaign period. Contrary to the pronouncement in the dissent, nowhere in the said proviso was it stated that campaigning before the start of the campaign period is lawful, such that the offender may freely carry out the same with impunity. As previously established, a person, after filing his/her COC but prior to his/her becoming a candidate (thus, prior to the start of the campaign period), can already commit the acts described under Section 79(b) of the Omnibus Election Code as election campaign or partisan political activity. However, only after said person officially becomes a candidate, at the beginning of the campaign period, can said acts be given effect as premature campaigning under Section 80 of the Omnibus Election Code. Only after said person officially becomes a candidate, at the start of the campaign period, can his/her disqualification be sought for acts constituting premature campaigning. Obviously, it is only at the start of the campaign period, when the person officially becomes a candidate, that the undue and iniquitous advantages of his/her prior acts, constituting premature campaigning, shall accrue to his/her benefit. Compared to the other candidates who are only about to begin their election campaign, a candidate who had previously engaged in premature campaigning already enjoys an unfair headstart in promoting his/her candidacy. As can be gleaned from the foregoing disquisition, harmony in the provisions of Sections 80 and 79 of the Omnibus Election Code, as well as Section 15 of Republic Act No. 8436, as amended, is not only very possible, but in fact desirable, necessary and consistent with the legislative intent and policy of the law. The laudable and exemplary intention behind the prohibition against premature campaigning, as declared in Chavez v. Commission on [43] Elections, is to level the playing field for candidates of public office, to equalize the situation between the popular or rich candidates, on one hand, and lesser-known or poorer candidates, on the other, by preventing the former from enjoying undue advantage in exposure and publicity on account of their resources and popularity. The intention for prohibiting premature campaigning, as explained in Chavez, could not have been significantly altered or affected by Republic Act No. 8436, as amended by Republic Act No. 9369, the avowed purpose of which is to carry-on the automation of the election system. Whether the election would be held under the manual or the automated system, the need for prohibiting premature campaigning to level the playing field between the popular or rich candidates, on one hand, and the lesser-known or poorer candidates, on the other, by allowing them to campaign only within the same limited period remains. We cannot stress strongly enough that premature campaigning is a pernicious act that is continuously threatening to undermine the conduct of fair and credible elections in our country, no matter how great or small the acts constituting the same are. The choice as to who among the candidates will the voting public bestow the privilege of holding public office should not be swayed by the shrewd conduct, verging on bad faith, of some individuals who are able to spend resources to promote their candidacies in advance of the period slated for campaign activities. Verily, the consequences provided for in Section 68 of the Omnibus Election Code for the commission of the prohibited act of premature campaigning are severe: the candidate who is declared guilty of committing the offense shall be disqualified from continuing as a candidate, or, if he/she has been elected, from holding office. Not to mention that said candidate also faces criminal prosecution for an election offense under Section 262 of the same Code. The Dissenting Opinion, therefore, should not be too quick to pronounce the ineffectiveness or repeal of Section 80 of the Omnibus Election Code just because of a change in the meaning of candidate by Section 15 of Republic Act No. 8436, as amended, primarily, for administrative purposes. An interpretation should be avoided under which a statute or provision being construed is defeated, or as otherwise expressed, nullified, destroyed, emasculated, repealed, explained away, or rendered insignificant, meaningless, [45] inoperative, or nugatory. Indeed, not only will the prohibited act of premature campaigning be officially decriminalized, the value and significance of having a campaign period before the conduct of elections would also be utterly negated. Any unscrupulous individual with the deepest of campaign war chests could then afford to spend his/her resources to promote his/her candidacy well ahead of everyone else. Such is the very evil that the law seeks to prevent. Our lawmakers could not have intended to cause such an absurd situation.
[44]

The Dissenting Opinion attempts to brush aside our preceding arguments by contending that there is no room for statutory construction [46] [47] in the present case since Section 15 of Republic Act No. 8436, as amended by Section 13 of Republic Act No. 9369, is crystal clear in its meaning. We disagree. There would only be no need for statutory construction if there is a provision in Republic Act No. 8436 or Republic Act No. 9369 that explicitly states that there shall be no more premature campaigning. But absent the same, our position herein, as well as that of the Dissenting Opinion, necessarily rest on our respective construction of the legal provisions involved in this case.

Notably, while faulting us for resorting to statutory construction to resolve the instant case, the Dissenting Opinion itself cites a rule of statutory construction, particularly, that penal laws should be liberally construed in favor of the offender. The Dissenting Opinion asserts that because of the third paragraph in Section 15 of Republic Act No. 8436, as amended, the election offense described in Section 80 of the Omnibus Election Code is practically impossible to commit at any time and that this flaw in the law, which defines a criminal act, must be construed in favor of Penera, the offender in the instant case.

The application of the above rule is uncalled for. It was acknowledged in Lanot that a disqualification case has two aspects: one, [48] [49] electoral; the other, criminal. The instant case concerns only the electoral aspect of the disqualification case. Any discussion herein on the matter of Peneras criminal liability for premature campaigning would be nothing more than obiter dictum. More importantly, as heretofore already elaborated upon, Section 15 of Republic Act No. 8436, as amended, did not expressly or even impliedly repeal Section 80 of the Omnibus Election Code, and these two provisions, based on legislative intent and policy, can be harmoniously interpreted and given effect. Thus, there is no flaw created in the law, arising from Section 15 of Republic Act No. 8436, as amended, which needed to be construed in Peneras favor.

The Dissenting Opinion further expresses the fear that pursuant to our theory, all the politicians with infomercials prior to the filing of their COCs would be subject to disqualification, and this would involve practically all the prospective presidential candidates who are now leading in the surveys.

This fear is utterly unfounded. It is the filing by the person of his/her COC through which he/she explicitly declares his/her intention to run as a candidate in the coming elections. It is such declaration which would color the subsequent acts of said person to be election campaigning or partisan political activities as described under Section 79(b) of the Omnibus Election Code. It bears to point out that, at this point, no politician has yet submitted his/her COC. Also, the plain solution to this rather misplaced apprehension is for the politicians themselves to adhere to the letter and intent of the law and keep within the bounds of fair play in the pursuit of their candidacies. This would mean that after filing their COCs, the prudent and proper course for them to take is to wait for the designated start of the campaign period before they commence their election campaign or partisan political activities. Indeed, such is the only way for them to avoid disqualification on the ground of premature campaigning. It is not for us to carve out exceptions to the law, much more to decree away the repeal thereof, in order to accommodate any class of individuals, where no such exception or repeal is warranted. Lastly, as we have observed at the beginning, Peneras Pe tition is essentially grounded on questions of fact. Peneras defense against her disqualification, before the COMELEC and this Court, rests on the arguments that she and her partymates did not actually hold a motorcade; that their supporters spontaneously accompanied Penera and the other candidates from her political party when they filed their certificates of candidacy; that the alleged motorcade was actually the dispersal of the supporters of Penera and the other candidates from her party as said supporters were dropped off at their respective barangays; and that Andanar was not able to present competent, admissible, and substantial evidence to prove that Penera committed premature campaigning. Penera herself never raised the argument that she can no longer be disqualified for premature campaigning under Section 80, in relation to Section 68, of the Omnibus Election Code, since the said provisions have already been, in the words of the Dissenting Opinion, rendered inapplicable, repealed, and done away with by Section 15 of Republic Act No. 8436, as amended. This legal argument was wholly raised by the Dissenting Opinion.

As a rule, a party who deliberately adopts a certain theory upon which the case is tried and decided by the lower court will not be permitted to change theory on appeal. Points of law, theories, issues, and arguments not brought to the attention of the lower court need not be, and ordinarily will not be, considered by a reviewing court, as these cannot be raised for the first time at such late stage. Basic [50] considerations of due process underlie this rule. If we do not allow and consider the change in theory of a case by a party on appeal, should we not also refrain from motu proprio adopting a theory which none of the parties even raised before us?

Nonetheless, the questions of fact raised by Penera and questions of law raised by the Dissenting Opinion must all be resolved against Penera. Penera should be disqualified from holding office as Mayor of Sta. Monica for having committed premature campaigning when, right after she filed her COC, but still a day before the start of the campaign period, she took part in a motorcade, which consisted of two jeepneys and ten motorcycles laden with multi-colored balloons that went around several barangays of Sta. Monica, and gave away candies to the crowd. Succession Despite the disqualification of Penera, we cannot grant Andanars prayer to be allowed to assume the position of Mayor of Sta. Monica. The well-established principle is that the ineligibility of a candidate receiving majority votes does not entitle the candidate receiving the next [51] highest number of votes to be declared elected. In this case, the rules on succession under the Local Government Code shall apply, to wit: 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 x x x vice-mayor concerned shall become the x x x mayor.

For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify or is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office. (Emphases ours.) Considering Peneras disqualification from holding office as Mayor of Sta. Monica, the proclaimed Vice -Mayor shall then succeed as Mayor. WHEREFORE, premises considered, the instant Petition for Certiorari is hereby DISMISSED. The Resolutions dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division and en banc, respectively, in SPA No. 07-224 are hereby AFFIRMED. In view of the disqualification of petitioner Rosalinda A. Penera from running for the office of Mayor of Sta. Monica, Surigao del Norte, and the resulting permanent vacancy therein, it is hereby DECLARED that the proclaimed Vice-Mayor is the rightful successor to said office. The Temporary Restraining Order issued on 4 March 2008is hereby ORDERED lifted. Costs against the petitioner.

G.R. No. 176947

GAUDENCIO M. CORDORA, vs COMMISSION ON ELECTIONS The Case

This is a petition for certiorari and mandamus, with prayer for the issuance of a temporary restraining order under Rule 65 of the 1997 Rules of Civil Procedure. In EO Case No. 05-17, Gaudencio M. Cordora (Cordora) accused Gustavo S. Tambunting (Tambunting) of an election offense for violating Section 74 in relation to Section 262 of the Omnibus Election Code. The Commission on Elections (COMELEC) En Banc dismissed 1 Cordoras complaint in a Resolution dated 18 August 2006. The present petition seeks to reverse the 18 August 2006 Resolution as well as 2 the Resolution dated 20 February 2007 of the COMELEC En Banc which denied Cordoras motion for reconsideration. The Facts In his complaint affidavit filed before the COMELEC Law Department, Cordora asserted that Tambunting made false assertions in the following items: That Annex A [Tambuntings Certificate of Candidacy for the 2001 elections] and Annex B [Tambuntings Cert ificate of Candidacy for the 2004 elections] state, among others, as follows, particularly Nos. 6, 9 and 12 thereof: 1. No. 6 I am a Natural Born/Filipino Citizen 2. No. 9 No. of years of Residence before May 14, 2001. 36 in the Philippines and 25 in the Constituency where I seek to be elected; 3. No. 12 I am ELIGIBLE for the office I seek to be elected. (Boldface and capitalization in the original) Cordora stated that Tambunting was not eligible to run for local public office because Tambunting lacked the required citizenship and residency requirements. To disprove Tambuntings claim of being a natural -born Filipino citizen, Cordora presented a certification from the Bureau of Immigration which stated that, in two instances, Tambunting claimed that he is an American: upon arrival in the Philippines on 16 December 2000 and upon departure from the Philippines on 17 June 2001. According to Cordora, these travel dates confirmed that Tambunting acquired American citizenship through naturalization in Honolulu, Hawaii on 2 December 2000. Cordora concluded: That Councilor Gustavo S. Tambunting contrary to the provision of Sec 74 (OEC): [sic] Re: CONTENTS OF CERTIFICATE OF CANDIDACY: which requires the declarant/affiant to state, among others, under oath, that he is a Filipino (No. 6), No. 9- residence requirement which he lost when [he was] naturalized as an American Citizen on December 2, 2000 at [sic] Honolulu, Hawaii, knowingly and willfully affirmed and reiterated that he possesses the above basic requirements under No. 12 that he is indeed eligible for the office to which he seeks to be elected, when in truth and in fact, the contrary is indubitably established by his own statements before the 4 Philippine Bureau of Immigration x x x. (Emphases in the original) Tambunting, on the other hand, maintained that he did not ma ke any misrepresentation in his certificates of candidacy. To refute Cordoras claim that Tambunting is not a natural-born Filipino, Tambunting presented a copy of his birth certificate which showed that he was born of a Filipino mother and an American father. Tambunting further denied that he was naturalized as an American citizen. The certificate of citizenship conferred by the US government after Tambuntings father petitioned him through INS Form I -130 (Petition for Relative) merely confirmed Tambuntings citizenship which he acquired at birth. Tambuntings possession of an American passport did not mean that Tambunting is not a Filipino citizen. Tambunting also took an oath of allegiance on 18 November 2003 pursuant to Republic Act No. 9225 (R.A. No. 9225), or the Citizenship Retention and Reacquisition Act of 2003. Tambunting further stated that he has resided in the Philippines since birth. Tambunting has imbibed the Filipino culture, has spoken the Filipino language, and has been educated in Filipino schools. Tambunting maintained that proof of his loyalty and devotion to the Philippines was shown by his service as councilor of Paraaque. To refute Cordoras claim that the number of years of residency stated in Tambuntings certificates of candidacy is false because Tambunting lost his residency because of his naturalization as an American citizen, Tambunting contended that the residency requirement is not the same as citizenship. The Ruling of the COMELEC Law Department The COMELEC Law Department recommended the dismissal of Cordoras complaint against Tambunting because Cordora failed to substantiate his charges against Tambunting. Cordoras reliance on the certification of the Bureau of Immigration that Tambun ting traveled on an American passport is not sufficient to prove that Tambunting is an American citizen. The Ruling of the COMELEC En Banc
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The COMELEC En Banc affirmed the findings and the resolution of the COMELEC Law Department. The COMELEC En Banc was convinced that Cordora failed to support his accusation against Tambunting by sufficient and convincing evidence. The dispositive portion of the COMELEC En Bancs Resolution reads as follows: WHEREFORE, premises considered, the instant complaint is hereby DISMISSED for insufficiency of evidence to establish probable cause. SO ORDERED.
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Commissioner Rene V. Sarmiento (Commissioner Sarmiento) wrote a separate opinion which concurred with the findings of the En Banc Resolution. Commissioner Sarmiento pointed out that Tambunting could be considered a dual citizen. Moreover, Tambunting effectively renounced his American citizenship when he filed his certificates of candidacy in 2001 and 2004 and ran for public office. Cordora filed a motion for reconsideration which raised the same grounds and the same arguments in his complaint. In its Resolution promulgated on 20 February 2007, the COMELEC En Banc dismissed Cordoras motion for reconsideration for lack of merit. The Issue Cordora submits that the COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it declared that there is no sufficient evidence to support probable cause that may warrant the prosecution of Tambunting for an election offense. Cordoras petition is not an action to disqualify Tambunting because of Tambuntings failure to meet citizenship and residenc y requirements. Neither is the present petition an action to declare Tambunting a non-Filipino and a non-resident. The present petition seeks to prosecute Tambunting for knowingly making untruthful statements in his certificates of candidacy. The Ruling of the Court The petition has no merit. We affirm the ruling of the COMELEC En Banc. Whether there is Probable Cause to Hold Tambunting for Trial for Having Committed an Election Offense There was no grave abuse of discretion in the COMELEC En Bancs ruling that there is no sufficient and convincing evidence to support a finding of probable cause to hold Tambunting for trial for violation of Section 74 in relation to Section 262 of the Omnibus Election Code. Probable cause constitutes those facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed. Determining probable cause is an intellectual activity premised on the prior physical presentation or submission 6 of documentary or testimonial proofs either confirming, negating or qualifying the allegations in the complaint. Section 74 of the Omnibus Election Code reads as follows: Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; x x x the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge. xxx The person filing a certificate of candidacy shall also affix his latest photograph, passport size; a statement in duplicate containing his biodata and program of government not exceeding one hundred words, if he so desires. Section 262 of the Omnibus Election Code, on the other hand, provides that violation of Section 74, among other sections in the Code, shall constitute an election offense. Tambuntings Dual Citizenship Tambunting does not deny that he is born of a Filipino mother and an American father. Neither does he deny that he underwent the process involved in INS Form I-130 (Petition for Relative) because of his fathers citizenship. Tambunting claims that because of his parents differing citizenships, he is both Filipino and American by birth. Cordora, on the other hand, insists that Tambunting is a naturalized American citizen. We agree with Commissioner Sarmientos observation that Tambunting possesses dual citizenship. Because of the circumstances o f his birth, it was no longer necessary for Tambunting to undergo the naturalization process to acquire American citizenship. The process involved in INS Form I-130 only served to confirm the American citizenship which Tambunting acquired at birth. The certification from the Bureau of Immigration which Cordora presented contained two trips where Tambunting claimed that he is an American. However, the same certification

showed nine other trips where Tambunting claimed that he is Filipino. Clearly, Tambunting possessed dual citizenship prior to the filing of his certificate of candidacy before the 2001 elections. The fact that Tambunting had dual citizenship did not disqualify him from running for public 7 office. Requirements for dual citizens from birth who desire to run for public office We deem it necessary to reiterate our previous ruling in Mercado v. Manzano, wherein we ruled that dual citizenship is not a ground for disqualification from running for any elective local position. To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to possess dual citizenship: (1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli; (2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers country such childre n are citizens of that country; (3) Those who marry aliens if by the laws of the latters country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of another state; but the above cases are clearly possible given the constitutional provisions on citizenship. Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individuals volition. xxx [I]n including 5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizensper se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase "dual citizenship" in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be understood as referring to "dual allegiance." Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. As Joaquin G. Bernas, one of the most perceptive members of the Constitutional Commission, pointed out: "[D]ual citizenship is just a reality imposed on us because we have no control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether or not she is considered a citizen of another country is something completely beyond our control." By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of which they are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign state and of its laws, such an individual has not effectively renounced his foreign citizenship. That is of no moment as the following discussion on 40(d) between Senators Enrile and Pimentel clearly shows: SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17: "Any person with dual citizenship" is disqualified to run for any elective local position. Under the present Constitution, Mr. President, someone whose mother is a citizen of the Philippines but his father is a foreigner is a natural-born citizen of the Republic. There is no requirement that such a natural-born citizen, upon reaching the age of majority, must elect or give up Philippine citizenship. On the assumption that this person would carry two passports, one belonging to the country of his or her father and one belonging to the Republic of the Philippines, may such a situation disqualify the person to run for a local government position? SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment when he would want to run for public office, he has to repudiate one of his citizenships. SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of origin or the country of the father claims that person, nevertheless, as a citizen,? No one can renounce. There are such countries in the world. 1avvphi1 SENATOR PIMENTEL. Well, the very fact that he is running for public office would, in effect, be an election for him of his desire to be considered a Filipino citizen. SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require an election. Under the Constitution, a person whose mother is a citizen of the Philippines is, at birth, a citizen without any overt act to claim the citizenship.

SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the Gentlemans example, if he does not renounce his other citizenship, then he is opening himself to question. So, if he is really interested to run, the first thing he should do is to say in the Certificate of Candidacy that: "I am a Filipino citizen, and I have only one citizenship." SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr. President. He will always have one citizenship, and that is the citizenship invested upon him or her in the Constitution of the Republic. SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will prove that he also acknowledges other citizenships, then 8 he will probably fall under this disqualification. (Emphasis supplied) We have to consider the present case in consonance with our rulings in Mercado v. Manzano, Valles v. COMELEC, and AASJS v. 11 Datumanong. Mercado and Valles involve similar operative facts as the present case. Manzano and Valles, like Tambunting, possessed dual citizenship by the circumstances of their birth. Manzano was born to Filipino parents in the United States which follows the doctrine of jus soli. Valles was born to an Australian mother and a Filipino father in Australia. Our rulings in Manzano and Valles stated that dual citizenship is different from dual allegiance both by cause and, for those desiring to run for public office, by effect. Dual citizenship is involuntary and arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. Thus, like any other natural-born Filipino, it is enough for a person with dual citizenship who seeks public office to file his certificate of candidacy and swear to the oath of allegiance contained therein. Dual allegiance, on the other hand, is brought about by the individuals active participation in the naturalization process. AASJS states that, under R.A. No. 9225, a Filipino who becomes a naturalized citizen of another country is allowed to retain his Filipino citizenship by swearing to the supreme authority of the Republic of the Philippines. The act of taking an oath of allegiance is an implicit renunciation of a na turalized citizens foreign citizenship. R.A. No. 9225, or the Citizenship Retention and Reacquisition Act of 2003, was enacted years after the promulgation of Manzano and Valles. The oath found in Section 3 of R.A. No. 9225 reads as follows: I __________ , solemnly swear (or affirm) 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. In Sections 2 and 3 of R.A. No. 9225, the framers were not concerned with dual citizenship per se, but with the status of naturalized citizens 12 who maintain their allegiance to their countries of origin even after their naturalization. Section 5(3) of R.A. No. 9225 states that naturalized citizens who reacquire Filipino citizenship and desire to run for 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 filing the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath" aside from the oath of allegiance prescribed in Section 3 of R.A. No. 9225. The twin requirements of swearing to an Oath of Allegiance and executing a 13 Renunciation of Foreign Citizenship served as the bases for our recent rulings in Jacot v. Dal and COMELEC, Velasco v. 14 15 COMELEC, and Japzon v. COMELEC, all of which involve natural-born Filipinos who later became naturalized citizens of another country and thereafter ran for elective office in the Philippines. In the present case, Tambunting, a natural-born Filipino, did not subsequently become a naturalized citizen of another country. Hence, the twin requirements in R.A. No. 9225 do not apply to him. Tambuntings residency Cordora concluded that Tambunting failed to meet the residency requirement because of Tambuntings naturalization as an American. Cordoras reasoning fails because Tambunting is not a naturalized American. Moreover, residency, for the purpose of election laws, includes 16 the twin elements of the fact of residing in a fixed place and the intention to return there permanently, and is not dependent upon citizenship. In view of the above, we hold that Cordora failed to establish that Tambunting indeed willfully made false entries in his certificates of candidacy. On the contrary, Tambunting sufficiently proved his innocence of the charge filed against him. Tambunting is eligible for the office which he sought to be elected and fulfilled the citizenship and residency requirements prescribed by law. WHEREFORE, we DISMISS the petition. We AFFIRM the Resolutions of the Commission on Elections En Bancdated 18 August 2006 and 20 February 2007 in EO Case No. 05-17. SO ORDERED. ANTONIO T. CARPIO Associate Justice
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