Monday, October 15, 2012

OCCENA VS. COMELEC

SAMUEL OCCENA VS. COMELEC G.R. NO. L-34150 APRIL 2, 1981 FACTS: Petitioner Samuel Occena and Ramon A. Gozales instituted a prohibiting proceedings against the validity of three batasang pambansa resolutions (Resolution No. 1 proposing an amendment allowing a natural-born citizen of the Philippines naturalized in a foreign country to own a limited area of land for residential purposes was approved by the vote of 122 to 5; Resolution No. 2 dealing with the Presidency, the Prime Minister and the Cabinet, and the National Assembly by a vote of 147 to 5 with 1 abstention; and Resolution No. 3 on the amendment to the Article on the Commission on Elections by a vote of 148 to 2 with 1 abstention.) The petitioners contends that such resolution is against the constitutions in proposing amendments: ISSUE: Whether the resolutions are unconstitutional? HELD: In dismissing the petition for lack of merit, the court ruled the following: 1. The power of the Interim Batasang Pambansa to propose its amendments and how it may be exercised was validly obtained. The 1973 Constitution in its Transitory Provisions vested the Interim National Assembly with the power to propose amendments upon special call by the Prime Minister by a vote of the majority of its members to be ratified in accordance with the Article on Amendments similar with the interim and regular national assembly. 15 When, therefore, the Interim Batasang Pambansa, upon the call of the President and Prime Minister Ferdinand E. Marcos, met as a constituent body it acted by virtue of such impotence. 2. Petitioners assailed that the resolutions where so extensive in character as to amount to a revision rather than amendments. To dispose this contention, the court held that whether the Constitutional Convention will only propose amendments to the Constitution or entirely overhaul the present Constitution and propose an entirely new Constitution based on an ideology foreign to the democratic system, is of no moment, because the same will be submitted to the people for ratification. Once ratified by the sovereign people, there can be no debate about the validity of the new Constitution. The fact that the present Constitution may be revised and replaced with a new one ... is no argument against the validity of the law because 'amendment' includes the 'revision' or total overhaul of the entire Constitution. At any rate, whether the Constitution is merely amended in part or revised or totally changed would become immaterial the moment the same is ratified by the sovereign people." 3. That leaves only the questions of the vote necessary to propose amendments as well as the standard for proper submission. The language of the Constitution supplies the answer to the above questions. The Interim Batasang Pambansa, sitting as a constituent body, can propose amendments. In that capacity, only a majority vote is needed. It would be an indefensible proposition to assert that the three-fourth votes required when it sits as a legislative body applies as well when it has been convened as the agency through which amendments could be proposed. That is not a requirement as far as a constitutional convention is concerned. Further, the period required by the constitution was complied as follows: "Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later than three months after the approval of such amendment or revision." 21 The three resolutions were approved by the Interim Batasang Pambansa sitting as a constituent assembly on February 5 and 27, 1981. In the Batasang Pambansa Blg. 22, the date of the plebiscite is set for April 7, 1981. It is thus within the 90-day period provided by the Constitution.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-56350 April 2, 1981 SAMUEL C. OCCENA, petitioner, vs. THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT, THE NATIONAL TREASURER, THE DIRECTOR OF PRINTING, respondents.

G.R. No. L-56404 April 2, 1981 RAMON A. GONZALES, MANUEL B. IMBONG, JO AUREA MARCOS-IMBONG, RAY ALLAN T. DRILON, NELSON B. MALANA and GIL M. TABIOS, petitioners, vs. THE NATIONAL TREASURER and the COMMISSION ON ELECTIONS, respondents.

FERNANDO, C.J.: The challenge in these two prohibition proceedings against the validity of three Batasang Pambansa Resolutions 1proposing constitutional amendments, goes further than merely assailing their alleged constitutional infirmity. Petitioners Samuel Occena and Ramon A. Gonzales, both members of the Philippine Bar and former delegates to the 1971 Constitutional Convention that framed the present Constitution, are suing as taxpayers. The rather unorthodox aspect of these petitions is the assertion that the 1973 Constitution is not the fundamental law, the Javellana 2 ruling to the contrary notwithstanding. To put it at its mildest, such an approach has the arresting charm of novelty but nothing else. It is in fact self defeating, for if such were indeed the case, petitioners have come to the wrong forum. We sit as a Court duty-bound to uphold and apply that Constitution. To contend otherwise as was done here would be, quite clearly, an exercise in futility. Nor are the arguments of petitioners cast in the traditional form of constitutional litigation any more persuasive. For reasons to be set forth, we dismiss the petitions. The suits for prohibition were filed respectively on March 6 3 and March 12, 1981. 4 On March 10 and 13 respectively, respondents were required to answer each within ten days from notice. 5 There was a comment on the part of the respondents. Thereafter, both cases were set for hearing and were duly argued on March 26 by petitioners and Solicitor General Estelito P. Mendoza for respondents. With the submission of pertinent data in amplification of the oral argument, the cases were deemed submitted for decision. It is the ruling of the Court, as set forth at the outset, that the petitions must be dismissed. 1. It is much too late in the day to deny the force and applicability of the 1973 Constitution. In the dispositive portion of Javellana v. The Executive Secretary, 6 dismissing petitions for prohibition and mandamus to declare invalid its ratification, this Court stated that it did so by a vote of six 7 to

four. 8 It then concluded: "This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect." 9 Such a statement served a useful purpose. It could even be said that there was a need for it. It served to clear the atmosphere. It made manifest that, as of January 17, 1973, the present Constitution came into force and effect. With such a pronouncement by the Supreme Court and with the recognition of the cardinal postulate that what the Supreme Court says is not only entitled to respect but must also be obeyed, a factor for instability was removed. Thereafter, as a matter of law, all doubts were resolved. The 1973 Constitution is the fundamental law. It is as simple as that. What cannot be too strongly stressed is that the function of judicial review has both a positive and a negative aspect. As was so convincingly demonstrated by Professors Black 10 and Murphy, 11 the Supreme Court can check as well as legitimate. In declaring what the law is, it may not only nullify the acts of coordinate branches but may also sustain their validity. In the latter case, there is an affirmation that what was done cannot be stigmatized as constitutionally deficient. The mere dismissal of a suit of this character suffices. That is the meaning of the concluding statement in Javellana. Since then, this Court has invariably applied the present Constitution. The latest case in point is People v. Sola, 12 promulgated barely two weeks ago. During the first year alone of the effectivity of the present Constitution, at least ten cases may be cited. 13 2. We come to the crucial issue, the power of the Interim Batasang Pambansa to propose amendments and how it may be exercised. More specifically as to the latter, the extent of the changes that may be introduced, the number of votes necessary for the validity of a proposal, and the standard required for a proper submission. As was stated earlier, petitioners were unable to demonstrate that the challenged resolutions are tainted by unconstitutionality. (1) The existence of the power of the Interim Batasang Pambansa is indubitable. The applicable provision in the 1976 Amendments is quite explicit. Insofar as pertinent it reads thus: "The Interim Batasang Pambansa shall have the same powers and its Members shall have the same functions, responsibilities, rights, privileges, and disqualifications as the interim National Assembly and the regular National Assembly and the Members thereof." 14One of such powers is precisely that of proposing amendments. The 1973 Constitution in its Transitory Provisions vested the Interim National Assembly with the power to propose amendments upon special call by the Prime Minister by a vote of the majority of its members to be ratified in accordance with the Article on Amendments. 15When, therefore, the Interim Batasang Pambansa, upon the call of the President and Prime Minister Ferdinand E. Marcos, met as a constituent body it acted by virtue Of such impotence Its authority to do so is clearly beyond doubt. It could and did propose the amendments embodied in the resolutions now being assailed. It may be observed parenthetically that as far as petitioner Occena is Concerned, the question of the authority of the InterimBatasang Pambansa to propose amendments is not new. In Occena v. Commission on Elections, 16 filed by the same petitioner, decided on January 28, 1980, such a question was involved although not directly passed upon. To quote from the opinion of the Court penned by Justice Antonio in that case: "Considering that the proposed amendment of Section 7 of Article X of the Constitution extending the retirement of members of the Supreme Court and judges of inferior courts from sixty-five (65) to seventy (70) years is but a restoration of the age of retirement provided in the 1935 Constitution and has been intensively and extensively discussed at the Interim Batasang Pambansa, as well as through the mass media, it cannot, therefore, be said that our people are unaware of the advantages and disadvantages of the proposed amendment." 17 (2) Petitioners would urge upon us the proposition that the amendments proposed are so extensive in character that they go far beyond the limits of the authority conferred on the Interim Batasang Pambansa as Successor of the Interim National Assembly. For them, what was done was to revise and not to amend. It suffices to quote from the opinion of Justice Makasiar, speaking for the Court, in Del Rosario v. Commission on Elections 18 to dispose of this contention. Thus: "3. And whether the Constitutional Convention will only propose amendments to the Constitution or entirely overhaul the

present Constitution and propose an entirely new Constitution based on an Ideology foreign to the democratic system, is of no moment; because the same will be submitted to the people for ratification. Once ratified by the sovereign people, there can be no debate about the validity of the new Constitution. 4. The fact that the present Constitution may be revised and replaced with a new one ... is no argument against the validity of the law because 'amendment' includes the 'revision' or total overhaul of the entire Constitution. At any rate, whether the Constitution is merely amended in part or revised or totally changed would become immaterial the moment the same is ratified by the sovereign people." 19 There is here the adoption of the principle so well-known in American decisions as well as legal texts that a constituent body can propose anything but conclude nothing. 20 We are not disposed to deviate from such a principle not only sound in theory but also advantageous in practice. (3) That leaves only the questions of the vote necessary to propose amendments as well as the standard for proper submission. Again, petitioners have not made out a case that calls for a judgment in their favor. The language of the Constitution supplies the answer to the above questions. The Interim Batasang Pambansa, sitting as a constituent body, can propose amendments. In that capacity, only a majority vote is needed. It would be an indefensible proposition to assert that the three-fourth votes required when it sits as a legislative body applies as well when it has been convened as the agency through which amendments could be proposed. That is not a requirement as far as a constitutional convention is concerned. It is not a requirement either when, as in this case, the Interim Batasang Pambansa exercises its constituent power to propose amendments. Moreover, even on the assumption that the requirement of three- fourth votes applies, such extraordinary majority was obtained. It is not disputed that Resolution No. 1 proposing an amendment allowing a natural-born citizen of the Philippines naturalized in a foreign country to own a limited area of land for residential purposes was approved by the vote of 122 to 5; Resolution No. 2 dealing with the Presidency, the Prime Minister and the Cabinet, and the National Assembly by a vote of 147 to 5 with 1 abstention; and Resolution No. 3 on the amendment to the Article on the Commission on Elections by a vote of 148 to 2 with 1 abstention. Where then is the alleged infirmity? As to the requisite standard for a proper submission, the question may be viewed not only from the standpoint of the period that must elapse before the holding of the plebiscite but also from the standpoint of such amendments having been called to the attention of the people so that it could not plausibly be maintained that they were properly informed as to the proposed changes. As to the period, the Constitution indicates the way the matter should be resolved. There is no ambiguity to the applicable provision: "Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later than three months after the approval of such amendment or revision." 21 The three resolutions were approved by the InterimBatasang Pambansa sitting as a constituent assembly on February 5 and 27, 1981. In the Batasang Pambansa Blg. 22, the date of the plebiscite is set for April 7, 1981. It is thus within the 90day period provided by the Constitution. Thus any argument to the contrary is unavailing. As for the people being adequately informed, it cannot be denied that this time, as in the cited 1980 Occena opinion of Justice Antonio, where the amendment restored to seventy the retirement age of members of the judiciary, the proposed amendments have "been intensively and extensively discussed at the Interim Batasang Pambansa, as well as through the mass media, [ so that ] it cannot, therefore, be said that our people are unaware of the advantages and disadvantages of the proposed amendment [ s ]." 22 Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-47771 March 11, 1978

PEDRO G. PERALTA, petitioner, vs. HON. COMMISSION ON ELECTIONS, HON. NATIONAL TREASURER, and KILUSANG BAGONG LIPUNAN,respondents. G.R. No. L-47803 March 11, 1978 JUAN T. DAVID, petitioner, vs. COMMISSION ON ELECTIONS (COMELEC); LEONARDO B. PEREZ, Chairman-COMELEC; VENANCIO S. DUQUE, FLORES A. BAYOT, CASIMIRO R. MADARANG, VENANCIO L. YANEZA, Commissioners-COMELEC; JAIME LAYA, Budget Commissioner; and GREGORIO G. MENDOZA, National Treasurer, respondents. G.R. No. L-47816 March 11, 1978 YOUTH DEMOCRATIC MOVEMENT, RAMON PAGUIRIGAN, and ALFREDO SALAPANTAN, JR., petitioners, vs. THE COMMISSION ON ELECTIONS, respondent. G.R. No. L-47767 March 11, 1978 IN THE MATTER OF PETITION FOR THE DECLARATION OF CERTAIN PROVISIONS OF THE ELECTION CODE OF 1978 AS UNCONSTITUTIONAL. GUALBERTO J. DE LA LLANA, petitioner. G.R. No. L-47791 March 11, 1978 B. ASUNCION BUENAFE, petitioner, vs. COMMISSION ON ELECTIONS, respondent. G.R. No. L-47827 March 11, 1978 REYNALDO T. FAJARDO, petitioner, vs. COMMISSION ON ELECTIONS, JAIME LAYA, as the BUDGET COMMISSIONER, GREGORIO G. MENDOZA, as the NATIONAL TREASURER, KILUSANG BAGONG LIPUNAN, and LAKAS NG BAYAN, respondents. Pedro G. Peralta in his own behalf. Nemesio C. Garcia, Jr., Rodrigo H. Melchor, Dante, S. David, Julie David-Feliciano & Juan T. David for petitioner Juan T. David. Raul M. Gonzalez & Associates for petitioners Youth Democractic Movement, et al. Gualberto J. de la Llana in his own behalf. B. Asuncion Buenafe in his own behalf

Binay Cueva, Fernandez & Associates for petitioner Reynaldo T. Fajardo. Tolentino Law Office for respondent Kilusang Bagong Lipunan. Solicitor General Estelito P. Mendoza, Assistant Solicitor General Vicente V. Mendoza and Assistant Solicitor General Reynato S. Puno for Commission of Elections (COMELEC).

ANTONIO, J.: These six (6) consolidated petitions pose for the determination of this Court the constitutionality of specific provisions of the 1978 Election Code (Presidential Decree No. 1269). I The first issue posed for resolution is: Whether or not the voting system provided for in Sections 140 and 155, subparagraphs 26 to 28, of the 1978 Election Code, granting to the voter the option to vote either for individual candidates by filling in the proper spaces in the ballot the names of candidates he desires to elect, or to vote for all the candidates of a political party, group or aggrupation by simply waiting in the space provided for in the ballot the name of the political party, group or aggrupation, violates Section 1 of Article IV and Section 9(1) of article XII-C of the Constitution. The specific provisions of the 1978 Election Code which are assailed as being in violation of the equal protection clause are the following: SEC. 140. Manner of preparing the ballot. The voter upon receiving his folded ballot shall forthwith proceed to one of the empty voting booths and shall there fill his ballot by writing in the proper space for each office the name of the candidate for whom he desires to vote: Provided, That in the election of regional representatives to the interim Batasang Pambansa, the voter may choose to vote for individual candidates by filling in the proper spaces of the ballot the names of candidates he desires to elect, but if for any reason he chooses to vote for all the candidates of a political party, group or aggrupation, by writing in the space provided for in the ballot the name of the political party, group or aggrupation: Provided further, That the ballots for the election of regional representatives to theinterim Batasang Pambansa shall be prepared by the Commission in such manner that the voter may vote for the straight ticket of a political party, group or aggrupation or for individual candidates, and for this purpose, the ticket of a regularly organized political party, group or aggrupation as certified under oath by their respective directorates or duly authorized representatives as wen as candidates not belonging to any particular political party, group or aggrupation, shall be printed in the upper portion of said ballots in a manner which does not give undue advantage to any political party, group or aggrupation or candidate, and there shall also be a column containing blank spaces for the names of such candidates which spaces are to be filled by the voter who does not desire to vote for a straight ticket: Provided, finally, That a candidate may be in the ticket of only one political party, group or aggrupation; if he is included in the ticket of more than one political party, group or aggrupation presenting different sets of candidates, he shall immediately inform the Commission as to which ticket he chooses to be included, and if he fails to do so, he shall cease to be considered to belong to any ticket. The following notice shall be printed on the ballot: "If you want to vote for all the official candidates of a political party, group or aggrupation to the exclusion of all

other candidates, write the name of such political party, group or aggrupation in the space indicated. It shag then be unnecessary for you to write the names of Candidates you vote for. On the other hand, if you want to vote for candidates belonging to different parties, groups or aggrupations and/or for individual candidates, write in the respective blank spaces the names of the candidates you vote for and the names written by you in the respective blank spaces in the ballot shall then be considered as validly voted for. xxx xxx xxx SEC. 155. Rules for the appreciation of ballots. In the reading and appreciation of ballots, the committee shall observe the following rules: xxx xxx xxx 26. If a voter has written in the proper space of the ballot the name of a political party, group or aggrupation which has nominated official candidates, a vote shall be counted for each of the official candidates of such party, group or aggrupation. 27. If a voter has written in the proper space of the ballot the name of a political party, group or aggrupation which has nominated official candidates and the names of individual candidates belonging to the ticket of the same political party, group or aggrupation in the spaces provided therefor, a vote shall be counted for each of the official candidates of such party, group or aggrupation and the votes for the individual candidates written on the ballot shall be considered as stray votes. 28. If a voter has written in the proper space of his ballot the name of a political party, group or aggrupation which has nominated official candidates and the names of individual candidates not belonging to the ticket of the same political party, group or aggrupation in the spaces provided therefor, an of the votes indicated in the ballot shall be considered as stray votes and shall not be counted. Provided, however, That if the number of candidates nominated by the political party, group or aggrupation written by the voter in the ballot is less than the number of seats to be filled in the election and the voter also writes the names of individual candidates in the spaces provided therefor not belonging to the ticket of the political party, group or aggrupation he has written in the ballot, the ballot shall be counted as votes in favor of the candidates of the political party, group or aggrupation concerned and the individual candidates whose names were firstly written by the voter in the spaces provided therefor, until the authorized number of seats is fined. The system which allows straight party voting is not unique in the Philippine experience. As early as 1941, the Second National Assembly of the Philippines enacted Commonwealth Act 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." Said Commonwealth Act enabled the voter to vote for individual candidates or for a straight party ticket by writing either the names of the candidates of his choice or of the political party he favored on designated blank spaces on the ballot. 1 While the original Election Code, Commonwealth Act No. 357, dated August 22, 1938, did not carry provisions for optional straight party voting, 2 the system was, however, substantially reinstituted in Republic Act No. 180, or the Revised Election Code, enacted on June 21, 1947. 3 The only im portent difference introduced was that in appreciating ballots on which the voter had written both the

name of a political party and the names of candidates not members of said party, Republic Act No. 180 provided that the individual candidates whose names were written shall be considered voted for, 4 whereas Commonwealth Act No. 666 provided that the vote shall be counted in favor of the political party. 5 Likewise, it should be noted that in other jurisdictions, ballots providing for optional straight party voting have been accepted as a standard form, in addition to the "office-block" ballots in which all candidates for each office grouped together. Among the different states of the United States, for example, the following has been observed: The party-column ballot, used in about 30 states, is sometimes called the Indianatype ballot because the Indiana law of 1889 has served as a model for other states. In most states using the party column ballot, it is possible to vote for the candidates of a single party for all offices by making a single cross in the circle at the head of the column containing the party's candidates. In some states, the party emblem is carried at the top of its column, a feature which, in less literate days, was of some utility in guiding the voter to the right column on the ballot. To vote a split ticket on a partycolumn ballot usually requires the recording of a choice for each office, path the voter will presumably hesitate to follow when he has the alternative of making a single crossmark. Professional party workers generally favor the use of the party-column ballot because it encourages straight ticket voting. ...
In contrast with the party-column ballot is the office-block ballot, or, as it is sometimes called by virtue of its origin, the Massachussetts ballot. Names of all candidates, by whatever party nominated, for each office are grouped together on the office-block ballot, usually with an indication alongside each name of the party affiliation. The supposition is that the voter will be compelled to consider separately the candidates for each ballot, in contrast with the encouragement given to straight-ticket voting by the party column ballot. Pennsylvania uses a variation of the office-block ballot: the candidates are grouped according to office but provision is made for straight-ticket voting by a single mark. 6

Election laws providing for the Indiana-type ballot, as aforementioned, have been held constitutional as against the contention that they interfere with the freedom and equality of elections. Thus, in Oughton, et al. v. Black, et al., 7assailed as unconstitutional was a statutory proviso which required that ballots should be printed with the following instructions: "To vote a straight party ticket, mark a cross (x) in the square opposite the name of the party of your choice, in the first column. a crossmark in the square opposite the name of any candidate indicates a vote for that candidate." It was contended that such provision interferes with the freedom and equality of elections, and authorizes a method of voting for political parties and not 'or men. It was alleged that the special privilege given to straight ticket voters and denied to others injured appellants, who, as candidates, were opposed by other candidates who can much more easily be voted for. In resolving such question and declaring the law valid, the Supreme Court of Pennsylvania held that the "free and equal exercises of the elective franchise by every elector is not impaired by the statute, but simply regulated. The regulation is for the convenience of the electors. The constitutionality of the law is not to be tested by the fact that one voter can cast his ballot by making one mark while another may be required to make two or more to express his will. When each has been afforded the opportunity and been provided with reasonable facilities to vote, the Constitution, and lies in the sound discretion of the Legislature." 8 The Pennsylvania Court further emphasized that elections are equal when the vote of every candidate is equal in its influence on the result, to the vote of every candidate; when each ballot is as effective as every other ballot. 9

To the same effect is the holding in Ritchie v. Richards, which sustained the validity of a statute containing a similar provisional. 10 At any rate, voting by party has been accepted in various states as a form of democratic electoral process. In Israel, for example, where the election system is one of proportional representation in which each political party presents a list of candidates to the citizenry, the voter selects a party, not a candidate, and each party is then represented in the Knesset in proportion to its strength on the polls. The head of the largest party is asked to form a government. 11 In France, on the other hand, under the electoral law of October 5, 1946, providing for the selection of National Assembly members, a list system of proportional representation was set up, whereby each electoral area elected several candidates in proportion to its voting strength. The voter was required to vote only for one party list; he could not split his vote among several candidates on different party lists, but could depart from the order of preference set up by the party. Commissioners then count the ballots for each party list and distribute the total number of seats among the different successful parties. 12 In Italy and West Germany, party voting is likewise in practice, and proportional representation seats are distributed on the basis of the number of votes received by the successful parties. Petitioners in the cases at bar invoke the constitutional mandate that no person shag be denied the equal protection of the laws (Article IV, Section 1) and the provision that "bona fide candidates for any public office shall be free from any form of harassment or discrimination" (Article XII-C, Section 9[l]). The word "discrmination" in the latter provision should be construed in relation to the equal protection clause and in the manner and degree in which it is taken therein, since said provision "is in line with the provision of the Bill of Rights that no 'person shall be denied the equal protection of the laws' ". 13 The main objection of petitioners against the optional straight party' voting provided for in the Code is that an independent candidate would be discriminated against because by merely writing on his ballot the name of a political party, a voter would have voted for all the candidates of that party, an advantage which the independent candidate does not enjoy. In effect, it discontended that the candidate who is not a party member is deprived of the equal protection of the laws, as provided in Section 1 of Article IV, in relation to Section 9 of Article XII, of the Constitution. The equal protection clause does not forbid all legal classifications. What is proscribes is a classification which is arbitrary and unreasonable. It is not violated by a reasonable classification based upon substantial distinctions, where the classification is germane to the purpose of the law and applies equally to all those belonging to the same class. 14 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 the class and those who do not. 15 There is, of course, no concise or easy answer as to what an arbitrary classification is. No definite rule has been or can be laid down on the basis of which such question may be resolved. The determination must be made in accordance with the facts presented by the particular case. The general rule, which is well-settled by the authorities, is that a classification, to be valid, must rest upon material differences between the persons, activities or things included and those excluded.' There must, in other words, be a basis for distinction. Furthermore, such classification must be germane and pertinent to the purpose of the law. And, finally, the basis of classification must, in general, be so drawn that those who stand in substantially the same position with respect to the law are treated alike. It is, however, conceded that it is almost impossible in some matters to foresee and provide for every imaginable and exceptional case. Exactness in division is impossible and never looked for in applying the legal test. All that is required is that there must be, in general, some reasonable basis on general lines for the division. 16

Classification which has some reasonable basis does not offend the equal protection clause merely because it is not made with mathematical nicety. 17 In the cases at bar, the assailed classification springs from the alleged differential treatment afforded to candidates who are party members as against those who run as independents. It must be emphasized in the election law must carry the burden of showing that it does not rest upon a reasonable basis, but is essentially arbitrary. 18 The factual foundation to demonstrate invalidity must be established by the litigant challenging its constitutionality. 19 These principles are predicated upon the presumption in favor of constitutionality. This has to be so because of "the fundamental criteria in cases of this nature that all reasonable doubts should be resolved in favor of the constitutionality of a statute. An act of the legislature, approved by the executive, is presumed to be within constitutional limitations. The responsibility of upholding the Constitution rests not on the courts alone but on the legislature as well. The question of the validity of every statute is first determined by the legislative department of the government itself. 20 Thus, to justify the nullification of a law, there must be "a clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication." 21 There is practical unanimity among the courts in the pronouncement "that laws shag not be declared invalid unless the conflict with the Constitution is clear beyond a reasonable doubt. 22 We shall now test the validity of petitioners' arguments on the basis of these principles. In the challenged provision of the electoral law, unlike the previous block- voting statutes, all the names of the candidates, whether of parties, groups or independent candidates, are printed on the ballot. Before he prepares his ballot, the voter will be able to read all the names of the candidates. No candidate will receive more than one vote, whether he is voted individually or as a candidate of a party group or aggrupation. The voter is free to vote for the individual candidates or to vote by party, group or aggrupation. The choice is His. No one can compel him to do otherwise. In the case of candidates, the decision on whether to run as an independent candidate or to join a political party, group or aggrupation is left entirely to their discretion. Certainly, before filing his certificate of candidacy, a candidate is aware of the advantages under the law accruing to candidates of a political party or group. If he wishes to avail hihiself of such alleged advantages as an official candidate of a party, he is free to do so by joining a political party group or aggrupation. In other words, the choice is his. In making his decision, it must be assumed that the candidate had carefully weighed and considered the relative advantages and disavantages of either alternative. So long as the application of the rule depends on his voluntary action or decision, he cannot, after exercising his discretion, claim that he was the victim of discrimination. In the ordinary course of things, those who join or become members of associations, such as political parties or any other lawful groups or organizations, necessarily enjoy certain benefits and privileges which are incident to, or are consequences of such membership. Freedom of association has been enshrined in the Constitution to enable individuals to join others of like persuasion to pursue common objectives and to engage in lawful activities. Membership in associations is considered as an extension of individual freedom. Effective advocacy of both public and private views or opinions is undeniably enhanced by group association. Freedom to engage in associations for the advancement of beliefs and Ideas is, therefore, an inseparable aspect of the liberty guaranteed by the fundamental law. Therefore, if, as an incident of joining a political party, group or aggrupation, the candidate is given certain privileges, this is constitutionally Permissible. Thus, under the provisions of the previous election laws, only the parties who polled the largest and the next largest number of votes in the last preceding presidential elections were entitled to

representation in the Board of Election Inspectors. 23 Independent candidates had no representation in the Board; and yet it was never contended that the independent candidates were denied the equal protection of the laws. The official candidates of an organized political party may be distinguished from an independent candidate. The former are bound by the party's rules. They owe loyalty to the party, its tenets, its policies, its platform and programmes of government. To the electorate, they represent the party, its principles, ideals and objectives. This is not true of an independent candidate. If the electoral law has bias in favor of political parties, it is because political parties constitute a basic element of the democractic institutional apparatus. Government derives its strength from the support, activity or passive, of a coalition of elements of society. In modern nines the political party has become the instrument for the organization of societies. This is predicated on the doctrine that government exists with the consent of the governed. Political parties per. form an "essential function in the management of succession to power, as well as in the process of obtaining popular consent to the course of public policy. They amass sufficient support to buttress the authority of governments; or, on the contrary, they attract or organize discontent and dissatisfaction sufficient to oust the government. In either case they perform the function of the articulation of the interests and aspirations of a substantial segment of the citizenry, usually in ways contended to be promotive of the national weal." 24 The Constitution establishes a parliamentary system of government. Such a system implies the existence of responsible political parties with distinct programmes of government. The parliamentary system works best when party distinctions are well defined by differences in principle. As observed by a noted authority on political law, under a parliamentary system; "the maintenance and development party system becomes not only necessary but indispensable for the enforcement of the idea and the rule of government responsibility and accountability to the people in the political management of the country." 25 Indeed, the extent to which political parties can become effective instruments of self-government depends, in the final analysis, on the degree of the citizens' competence in politics and their willingness to contribute political resources to the parties. It is also contended that the system of optional straight party voting is anathema to free, orderly and honest elections or that it encourages laziness or political irresponsibility. These are objections that go to the wisdom of the statute. It is well to remember that this Court does not pass upon questions of wisdom or expediency of legislation. We have reiterated in a previous case that: "It is ... settled ... that only congressional power or competence, not the wisdom of the action taken, may be the basis for declaring a statute invalid." 26 This notwithstanding, We deem it necessary, for the information of everyone concerned, to explain why such fears, in a growing climate of political maturity and social responsibility appear conjectural. There are no data to show that the system herein assailed was the proximate cause of all the frauds in the 1941, 1947 and 1949 elections. Besides, all procedures or manners of voting are susceptible to fraud. The important thing to consider is that the 1978 Election Code is replete with new provisions designed to guarantee the sanctity and secrecy of the people's vote. As demonstrated in the experience of other democratic states, such a system has its advantages. It may enable deserving young candidates but without adequate financial resources of their own to win, with party support, in countrywide or regional elections. Since candidates of a party or group may pool their resources, it will tend to make elections less expensive. As this system of voting favors the strongly organized parties or groups, it tends to prevent the proliferation of political parties or groups. It thus results in the formation of stable and responsible political parties. On the part of the electorate, such a system of voting facilitates the exercise of their right of suffrage. It enables the

laborer, the farmer and the voter of ordinary education to vote with greater facility for all the official candidates of the party of his choice. It thus broadens the ways and means by which the sovereign will can be expressed. Nor could it be true, as petitioners contend, that a system which allows straight ticket voting encourages laziness and political irresponsibility. While there may be those who may be moved to vote straight party by reason of lack of interest, nevertheless, there are still those sufficiently interested to cast an intelligent vote. It has been observed that in a straight ticket the motivated voter is more likely to organize his ballot in a highly structure pattern. His motivation may derive from an interest in parties, candidates, or issues or any combination of those. As observed by a survey research group: "Motivated straight ticket voting appears to reflect an intention on the part of the voter to accomplish his political purpose as fully as possible. Such a voter does not scatter his choices casually, he has a political direction in mind and he implements it through the choice of one party or the other on the ballot. The more highly motivated he is toward this political objective, the less willing he is to dilute his vote by crossing party lines." 27 II The second issue before Us is: Whether or not the provisions of Sections 11, 12 and 14 of the 1978 Election Code, which authorize the elections of the members of the interim Batasang Pambansa by regions, violate Section 2 of Article VIII of the Constitution which provides that the members of the National Assembly shall be apportioned among the provinces, representative districts and cities. Assailed as unconstitutional are the following provisions of the 1978 Election Code: SEC. 11. Composition. The interim Batasang Pambansa shall be composed of the incumbent President of the Philippines, representatives elected from the different regions of the nation, those who shag not be less than eighteen years of age elected by their respective sectors, and those chosen by the incumbent President from the members of the Cabinet." SEC. 12. Apportionment of regional representatives. There shall be 160 regional representatives to the interim Batasang Pambansa apportioned among the thirteen regions of the nation in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio ... : xxx xxx xxx The foregoing apportionment shall be not considered a precedent in connection with the re-apportionment of representative districts for the regular National Assembly under Section 2, Article VIII and Section 6, Article XVI I of the Constitution. Notwithstanding the foregoing provisions, the number of regional representative for any region shall not be less than the number of representative districts therein existing at the time of the ratification of the Constitution. There are also allotted two additional seats for regional representatives to Region IV in view of inhabitants, such as students, in the region not taken into account in the 1975 census. SEC. 14. Voting by region. Each region shall be entitled to such number of regional representatives as are allotted to it in Section 12 of Article II hereof. All candidates for region representatives shall be voted upon at large by the registered

voters of their respective regions. The candidates receiving the highest number of votes from the entire region shall be declared elected. The constitutional provision relied upon is Section 2 of Article VIII, which provides: SEC. 2. The National Assembly shall be composed of as many Members as may be provided by law to be apportioned among the provinces, representative districts and cities in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio. Each district shall Comprise, as far as practicable, contiguous, compact, and adjacent territory. Representative districts or provinces already created or existing at the time of the ratification of this Constitution shag have at least one Member each. In resolving the issue, the provisions of Amendment No. 1 to the Constitution, which took effect on October 27, 1976, should be considered and not, as pointed out by petitioner Juan T. David, those of Section 2 of Article VIII of the Constitution, which deal with the composition of the regular National Assembly. It should be recalled that under the term of the Transitory Provisions of the Constitution, 28 the membership of theinterim National Assembly would consists of the Incumbent President and VicePresident, the Senators and the Representatives of the old Congress and the Delegates to the Constitutional Convention who have opted to serve therein. The Filipino people rejected the convening of the interim National Assembly, and for a perfectly justifiable reason. By September of 1976, the consensus had emerged for a referendum partaking of the character of a plebiscite which would be held to establish the solid foundation for the next step towards normalizing the political process. By the will of the people, as expressed overwhelmingly in the plebiscite of October 15 and 16, 1976, Amendments Nos. 1 to 9 were approved, abolishing the interim National Assembly and creating in its stead an interim Batasang Pambansa. T was intended as a preparatory and experimental step toward the establishment of full parliamentary government as provided for in the Constitution. Amendment No. 1 provides: 1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa, Members of the interim Batasang Pambansa, which shall not be more than 120, unless otherwise provided by law, shall include the incumbent President of the Philippines, representatives elected from the different regions of the nation, those who shall not be less than eighteen years of age elected by their respective sectors, and those chosen by the incumbent President from the Members of the Cabinet.Regional representatives shall be apportioned among the regions in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio, while the sectors shall be determined by law. The number of representatives from each region or sector and the manner of their election shall be prescribed and regulated by law. (Emphasis supplied.) The provisions of the Above Amendment are clear. Instead of providing that representation in the interimBatasang Pambansa shall be by representative districts, it specifically provides that; (1) the representatives shall be elected from the different regions of the nation; and (2) the "Regional representatives shall be apportioned among the regions in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio while the sector shall be determined by law. " No mention whatsoever is made of 4 provinces, representative districts and

cities". Where the intent is to relate to the regular National Assembly, the Constitution made it clear and manifest, as indicated in Amendment No. 2 of the Constitution. 29 It is significant to note that nowhere in the said amendment is it provided that the members of the interim Batasang Pambansa shall be apportioned among the representative districts, in the same manner as the regular National Assembly. The clear import and intent of the Constitutional Amendment is, therefore, the election of the representatives from the different regions of the nation, and such regional representatives shall be alloted or distributed among the regions in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio. Neither does the Amendment provide that the members of the interim Batasang Pambansa "shall be elected by the qualified electors in their respective district for term of six years ..." as provided in Section 3[l] of Article VIII of the Constitution. To hold that Section 3[l] of Article VIII is applicable to the interim Batasang Pambansa would lead to the conclusion that the members of the Batasan shall have a term of six years, which is of course inconsistent with its transitory character. That the interim Batasang Pambansa is a distinct and special body, which, by reason of its transitory nature should be governed by specifically formulated rules, is apparent from the constitutional amendment which created it. Thus, its membership "shall not be more than 120, unless otherwise provided by law." Furthermore, it "shall include the incumbent President of the Philippines, representatives elected from the different regions of the nation, those who shall not be less than eighteen years of age elected by their respective sectors, and those chosen by the incumbent President from the Members of the Cabinet." The regular National Assembly, on the other hand, is limited in its membership to representatives to be apportioned among the provinces, representative districts and cities. By reason of its provisional character, the interim Batasang Pambansa has to be more flexible, both in its representation and the manner of election of its members. There is no denying the fact that as wide a range of representation as possible is required in order to hasten the nation's return to normalcy. It is for t reason that sectors are given adequate representation 30 and are considered as "national aggrupations. " Elections of sectoral representatives are specially provided for in the 1978 Election Code. 31 It should be emphasized that the regular National Assembly is distinct and different in composition, powers and manner of elections of its members from the interim Batasang Pambansa is to function during the period of transition while the regular National Assembly is to operate upon the restoration of normalcy. The composition of the interim Batasang Pambansa is indeed experimental. It is an experiment in size, form and distribution of constituencies in the hope of securing a legislature most truly representative of the views of the electorate. It would, therefore, be ludicrous to confine the members of such body within the strictures of the representative districts of the regular National Assembly. The fear of petitioner Juan T. David that several representative districts will be deprived of representation misconstrues the concept of regional elections. The representatives are to be elected by the voters of the entire region. They will represent the whole region and not merely its integral provinces, districts or cities. Moreover, Section 12 of the Code ensures that there shall be sufficient representatives for each region by providing that "the number of regional representatives for any region shall not be less than the number of representative districts therein existing at the time of the ratification of the Constitution." III The following two issues raised by petitioners are interrelated and must be jointly discussed herein. They are: (a) Whether or not the Kilusang Bagong Lipunan (KBL) and the Lakas ng Bayan (LABAN) may be registered and accredited as political parties under Section 8 of Article XII-C of the Constitution, so that their respective candidates for membership in the interim Batasang Pambansa may be voted for as a group under the 1978 Election Code; and

(b) Whether or not members of a political party in the l971 elections may run under the ticket sponsored by any other party, group or aggrupation, considering the provisions of Section 10 of Article XII-C of the Constitution which prohibition candidates for any elective public office from changing party affiliation within six months s immediately preceding or following an election The resolution of the foregoing issues calls for the determination of the constitutionality of Section 199 of the 1978 Election Code, questioned by petitioners. Said section provides: SEC. 199. Registration of political parties. Pending the promulgation of rules and regulations to govern the registration and accreditation of political parties by the Commission in accordance with Article XII[C] of the Constitution, the registration with the Commission previous to 1972 of the Nacionalista Party, Liberal Party, Citizens' Party, and other national parties shall be deemed to continue and they may, upon notice to the Commission through their respective presidents or duly authorized representatives, amend or change their names, constitutions, by-laws, or other organizational papers, platfor, officers and members, and shag be entitled to nominate and support their respective candidates for representatives in the interim Batasang Pambansa. Similarly, any other group of persons pursuing the same political Ideals in government may register with the Commission and be entitled to the same rights and privileges. Invoked by petitioner are Sections 8 and 10 of Article XII-C of the Constitution, which provide: SEC. 8. A political party shall be entitled to accreditation by the Commission if, in the immediately preceding election, such party has obtained at least the third highest number of votes cast in the constituency to which it seeks accreditation. No religious sect shall be registered as political party, and no political party which seeks to achieve its goals through violence or subversion shall be entitled to accreditation. SEC. 10. No elective public officer may change political party affiliation during term of office, and no candidate for any elective public office may change political party affiliation within six months immediately preceding g or following an election. It should be recalled that the object of the afore-quoted provisions of the Constitution was to develop a third party and break the heretofore dominant hold on the political system by the two major political parties which have been in existence since the birth of the republic. These two major parties were considered as "in fact a one party system with two factions openly disagreeing on fringe issues but tacitly united by one common aim: alternate monopoly of power through a pattern of patronage politics." 32 The framers of the Constitution examined the weaknesses of the party system and saw the need "for discarding the old party system as a political farce that has been largely responsible for many of the country's ills ...". 33 They envisioned, therefore, a new era in Philippine politics, where elections were to be decided on issues rather than on personalities, and where the electoral process was to be free, less expensive government depends on an organized and vigorous citizenry. Such can only exist if citizens can increase their effectiveness in politics by modernizing and using political parties to set the general directions of public policy and to influence the specific decisions of public institutions that affect their daily lives. It was intended, however, that some of these provisions would not operate during the interim period. Thus, from the wording of Section 8, it is obvious that said section is incapable of application during the first election because it states that no political party shall be entitled to accreditation unless in the immediately preceding election, it obtained at least the third highest number of votes cast in the

constituency to which it seeks accreditation. That there cannot be any accreditation during the first election under the 1973 Constitution is evident from the sponsorship speech of the proponent of t constitutional provision. 34 Although their members are united by common policies and principles of government and apparently impelled by the same political Ideals, neither the Kilusang Bagong Lipunan (KBL) nor the Lakas ng Bayan (LABAN) professes to be a political party in the sense of a stable organization with a degree of permanence, imposing strict discipline among the members, and with a party platform drafted and ratified in a party convention. It does not follow, however, that the KBL and LABAN are not political parties, in a generic sense, since a political party has been generally defined as "an association of voters believing in certain principles of government, formed to urge the adoption and execution of such principles in governmental affairs through officers of like belief." 35. Political parties "result from the voluntary association of electors, and do not exist by operation of law. The element of time is not essential to the formation of a legal party; it may spring into existence from the exigencies of a particular election, and with no intention of continuing after the exigency has passed." 36 As a matter of fact, it is only the Kilusang Bagong Lipunan (KBL) and the Lakas ng Bayan (LABAN) that have polarized the major differences on vital public issues affecting the nation. And, during t first election in t period of transition when, obviously, no political party can be accredited, does the Constitution, in Article XII-C, Sections 2[5] and 8 limit registration to political parties as strictly understood by withholding it from aggrupations of persons pursuing the same political Ideals of government as provided in Section 199 of the 1978 Election Code? It clearly does not. The listing of political parties appears to have a dual aspect registration and accreditation Registration is a means by which the government is enabled to supervise and regulate the activities of various elements participating in an election. It would appear from Section 8 of Article XII-C that the only groups which cannot be registered are: (a) religious groups or sects; and (b) those political parties or groups who seek "to achieve its goals through violence and subversion". Accreditation is the means by which the registration requirement is made effective by conferring benefits to registered political parties. The condition for accreditation, aside from those mentioned, is that the political party must have obtained, in the immediately preceding election, at least "the third highest number of votes cast in the constituency to which it seeks accreditation. " The Constitution, however, does not state what are the effects of accreditation. There is, therefore, necessity for legislation. Moreover, to construe the term "political party" restrictively would delimit the supervisory authority of the Commission on Elections. More specifically, it would exempt aggrupations or other political groups from certain requirements. Under Section 199, the 1978 Election Code allows the registration of aggrupations or groups of persons "pursuing the same political Ideals in government"; consequently, they are subjected to the regulation of propaganda materials (Sec. 41) and the limitation of expenses for candidates (Sec. 52). From another point of view, a narrow construction may discourage the robust exercise of the right of association guaranteed by the Bill of Rights, which at t stage of our political tory appears, necessary. The facts that the coming polls will be the first that we shall hold since the proclamation of martial law on September 21, 1972 makes it an event of no ordinary significance. "The Filipino society has outgrown its age of innocence. Today the acts of Filipino politicians must be judged by more mature standards and the test of national allegiance has become more strict and more demanding, even more binding." 37 By t election, we shall inaugurate a new stage in our political life, and commence our fateful transition from crisis government to a parliamentary system. But as President Ferdinand E. Marcos has significantly observed:

... this step, I repeat, is no mere restoration of electoral processes and representative government. The coming elections would be a perilous exercise indeed if they would merely return us to elections and representative institutions as we had known them in the past, and compromise what had taken us so much time and effort to construct over the last five years.
What we envision in t initiative is the permanence and continuity of the refor that we have launched under the aegis of crisis government. We envision in it the full emergence of a new political order that will give life and sustenance to our national vision of a new society. And it will have permanence and continuity because by the grace of suffrage and representative government, we shag thereby attain a formal mechanism for the exercise of participation and involvement by our people in nation-building and national development. 38

It is, therefore, necessary at t stage to encourage the emergence or growth of political parties that will truly reflect the opinions and aspirations of our people. The right of individuals to form associations as guaranteed by the fundamental law, includes the freedom to associate or refrain from association. 39 In accord with t constitutional precept, it is recognized that no man is compelled by law to become a member of a political party, or, after having become such, to remain a member. 40 The existence of responsible political parties with distinct programs of government is essential to the effectiveness of a parliamentary system of government. It is in recognition of t fact that Section 199 of the 1978 Election Code allows or sanctions the registration of groups of persons "pursuing the same political ideals in government" with the Commission on Elections. Moreover, to what extent the rights of organized political parties should be regulated by law is a matter of public policy to be determined by the lawmaker a matter which does not concern the courts. 41 T brings us to the next point raised by petitioners, namely, that under Section 10 of Article XII-C of the Constitution, no candidate for elective office may change party affiliation within six months immediately preceding or following an election. In the cases at bar, We understand that no candidate voluntarily changed party affiliation. On the contrary, the claim that the KBL and the LABAN are not political parties" is based partly on the fact that the candidates running under their banners have retained their party affiliation. Section 10 is a statement of a basic principle against political opportunism. To begin with, no legislation has been enacted to implement t constitutional prohibition. Indeed, it is difficult to conceive how the courts may apply the prohibition, in all the varied facts and circutances under which it may be invoked, without the aid of supplementary legislation. For instance, the provision in question states that no elective public officer may change political party affiliation during term of office. Suppose an elected representative in the legislature, belonging to one party, shall always vote and side with another political party. Will he be considered a "turncoat" even if he does not formally change party affiliation? Suppose it be decided that he is a "turncoat". What sanctions should be adopted? Should he be suspended or ousted from the legislature? When one turns to political candidates, the same questions as to what should be considered "political opportunism" or "turncoatism" will be encountered. But the problem of procedure for hearing and deciding infringements of the prohibition or the determination of the appropriate sanction becomes more acute. Is the sanction to be found in the refusal by the Commission on Elections to register the party or group, or in the denial of certificate of candidacy, or are there other ways? Should political parties be prevented from "adopting" candidates? Or from forming coalitions? All of these are questions of policy, in resolving winch many immensurable factors have to be considered. The afore-cited constitutional provisions are commands to the legislature to enact laws to carry out the constitutional purpose. They are, therefore, addressed initially to the lawmaking

department of the government. It is not part of the judicial department to deal with such questions without their authoritative solutions by the legislative department. It may be relevant to emphasize here that the jurisdiction of t Court is "limited to cases and controversies, presented in such form, with adverse litigants, that the judicial power is capable of acting upon them, and pronouncing and carrying into effect a judgment between the parties, and does not extend to the determination of abstract questions or issues framed for the purpose of invoking the advice of the court without real parties or a real case." 42 In any event, We cannot perceive how such constitutional prohibition could be applied in t first election. Precisely, the overriding constitutional purpose is to remove the dominant hold of the two major political parties and encourage the formation of new political parties. The intention is not to rebuild old party coalitions but to define new political means and instruments, within the parties or beyond them, that will allow the Filipino people to express their deeper concerns and aspirations through popular government. IV The fourth issue is: whether or not the forty-five-day period of campaign prescribed in the 1978 Election Code violates the Constitution because. (a) it was decreed by the President and not by the Commission on Elections as provided by Section 6 of Article XII-C; and (b) the period should cover at least ninety (90) days. Petitioners question the constitutionality of Section 4 of the 1978 Election Code, which provides: SEC. 4. Election and campaign periods. The election period shall be fixed by the Commission on Elections in accordance with Section 6, Article XII-C of the Constitution. The period of campaign shall not be more than forty- five days immediately preceding the election, excluding the day before and the day of the election: Provided, That for the election of representatives to the interim Batasang Pambansa, the period of campaign shall commence on February 17, 1978 except that no election campaign or partisan political activity may be conducted on March 23 and 24, 1978. In support of the allegation of unconstitutionality, petitioners rely on Section 6 of Article XII-C of the Constitution, thus: SEC. 6. Unless otherwise fixed by the Commission in special cases, the election period shall commence ninety days before the day of election and shall end thirty days thereafter. At the outset, it should be considered that Amendment No. 1 provides that the "number of representatives from each region and the manner of their election shall be prescribed and regulated by law " (emphasis supplied). Under Amendment No. 5, "the incumbent President shall continue to exercise legislative powers until martial law shall have been lifted." The power conferred by these Amendment upon the lawmaker necessarily included the authority to prescribe the date and procedure for the holding of such elections. It should be borne in mind that the forthcoming election for members in the interim Batasang Pambansa will be a special election during a regime of martial law. It is, therefore, an election in a state of emergency. The exigencies of the situation require that it be governed by special rules. At t point, the objective is to hasten the normalization of government and, at the same time, to ensure that the nation is not exposed to the same critical proble that necessitated the declaration of martial law. In conferring upon the incumbent President the authority to determine the date of the election, those who drafted the Amendments must have realized that it

is only the incumbent President who has the authority and the means of obtaining, through the various facilities in the civil and military agencies of the government, information on the peace and order condition of the country, and to determine the period within which an electoral campaign may be adequately conducted in all the regions of the nation. Thus, the 1978 Election Code was formulated to meet a special need, and t is emphasized by the fact that the Code itself limits its application. 43 Even assuming that it should be the Commission on Elections that should fix the period for campaign, the constitutional mandate is complied with by the fact that the Commission on Elections has adopted and is enforcing the period fixed in Section 4, Article I of the 1978 Election Code. At any rate, insofar as objections to the fixing of the campaign period for elections in general are concerned, it is apparent that there is a distinction between the ter "election period" and "campaign period". Thus, Section 4, Article I of the 1978 Election Code provides that the "election period shag be fixed by the Commission on Elections in accordance with Section 6, Article XII (C) of the Constitution." The "campaign period", however, has been fixed so that "it shall not be more than forty-five days immediately preceding the election: Provided, That for the election of representatives to the interim Batasang Pambansa, the period of campaign shag commence on February 17, 1978 except that no election campaign or partisan political activity may be conducted on March 23 and 24, 1978." The distinction is further made apparent by the fact that the "election period" under Section 5 of Article XII-C of the Constitution extends even beyond the day of the election itself, while the "campaign period", by reason of its nature and purpose, must necessarily be before the elections are held. There is, therefore, no conflict with the constitutional provision. At t juncture, it may be relevant to note the efforts of the Commission on Elections to give more substance and meaning to the intent and spirit of the Constitution and the 1978 Election Code by giving the same practicable opportunities to candidates, groups or parties involved in the April 7, 1978 interim Batasang Pambansa elections. Thus, in Resolution No. 1289, the COMELEC removed the so-called undue advantage which the Nacionalista Party and the Kilusang Bagong Lipunan (KBL) had over the Lakas ng Bayan (LABAN) in ter of authorized election expenses, appointment of election watchers and use of print and broadcast media. T circutance, contrary to the clai of petitioners, shows that the Commission on Elections, as a constitutional body charged with the enforcement and administration of all laws relative to the conduct of elections, and with broad powers, functions and duties under the 1973 Constitution, can give candidates, irrespective of parties, equal opportunities under equal circutances. WHEREFORE, in view of the foregoing, the instant petitions are hereby DISMISSED, without costs. Castro, C.J., Makasiar, Aquino, Concepcion, Jr., Santos, Fernandez, and Guerrero, JJ., concur.

Peralta et al vs Commission on Elections et al

15112010

Equal Protection 1978 Election Code Block Voting

Peralta was an independent candidate in the April 1978 Interim Batasang Pambansa Elections. He, along with others, assailed the constitutionality of PD 1269 or the 1978 Election Code. Secs140 and 155, subparagraphs 26 to 28, of the 1978 Election Code, grants the voter the option to vote either for individual candidates by filling in the proper spaces in the ballot the names of candidates he desires to elect, or to vote for all the candidates of a political party, group or aggrupation by simply writing in the space provided for in the ballot the name of the political party, group or aggrupation (office-block ballot). Peralta was vehement in contending that the optional block voting scheme is violative of this provision of the Constitution: Bona fide candidates for any public office shall be free from any form of harassment and discrimination. He sought the shelter of its protection for himself and other independent candidates who, according to him, would be thus made to suffer if the assailed provision is not nullified. Essentially, in terms of individual rights, he would raise a due process and equal protection question. The main objection of Peralta against the optional straight party voting provided for in the Code is that an independent candidate would be discriminated against because by merely writing on his ballot the name of a political party, a voter would have voted for all the candidates of that party, an advantage which the independent candidate does not enjoy. In effect, it is contended that the candidate who is not a partymember is deprived of the equal protection of the laws, as provided in Sec 1 of Article IV, in relation to Sec 9 of Article XII, of the 1973 Constitution. ISSUE: Whether or not the 1978 Election Code is violative of equal protection. HELD: The SC ruled that the 1978 Election Code is valid. No candidate will receive more than one vote, whether he is voted individually or as a candidate of a party group or aggrupation. The voter is free to vote for the individual candidates or to vote by party, group or aggrupation. In the case of candidates, the decision on whether to run as an independent candidate or to join a political party, group or aggrupation is left entirely to their discretion. Certainly, before filing his certificate of candidacy, a candidate is aware of the advantages under the law accruing to candidates of a political party or group. If he wishes to avail himself of such alleged advantages as an official candidate of a party, he is free to do so by joining a political party group or aggrupation. In other words, the choice is his. In making his decision, it must be assumed that the candidate had carefully weighed and considered the relative advantages and disadvantages of either alternative. So long as the application of the rule depends on his voluntary action or decision, he cannot, after exercising his discretion, claim that he was the victim of discrimination.

SUBIC BAY METROPOLITAN AUTHORITY vs. COMELEC G.R. No. 125416 September 26, 1996FACTS: On March 13, 1992, Congress enacted RA. 7227

(The Bases Conversionand Development Act of 1992), which created the Subic EconomicZone. RA 7227 likewise created SBMA to implement the declared national policy of converting the Subic military reservation into alternative productive uses.

On November 24, 1992, the American navy turned over the Subic military reservation to the Philippines government. Immediately, petitioner commenced the implementation of its task, particularly the preservation of the sea-ports, airport, buildings, houses and other installations left by the American navy.

On April 1993, the Sangguniang Bayan of Morong, Bataan passed Pambayang Kapasyahan Bilang 10 , Serye 1993 , expressing therein its absolute concurrence, as required by said Sec. 12 of RA 7227, to join the Subic Special Economic Zone and submitted such to the Office of the President.

On May 24, 1993, respondents Garcia filed a petition with theSangguniang Bayan of Morong to annul Pambayang Kapasyahan Blg.10, Serye 1993 . The petition prayed for the following: a) to nullify PambayangKapasyang Blg. 10 for Morong to join the Subic Special Economi Zone,b) to allow Morong to join provided conditions are met.

The Sangguniang Bayan ng Morong acted upon the petition bypromulgating Pambayang Kapasyahan Blg. 18, Serye 1993 , requestingCongress of the Philippines so amend certain provisions of RA 7227.

Not satisfied, respondents resorted to their power initiative under theLGC of 1991.

On July 6, 1993, COMELEC denied the petition for local initiative on theground that the subject thereof was merely a resolution and not anordinance. On February 1, 1995, the President issued Proclamation No. 532 defining the metes and bounds of the SSEZ including therein theportion of the former naval base within the territorial jurisdiction of theMunicipality of Morong.

On June 18, 19956, respondent Comelec issued Resolution No. 2845and 2848 , adopting a "Calendar of Activities for local referendum andproviding for "the rules and guidelines to govern the conduct of thereferendum On July 10, 1996, SBMA instituted a petition for certiorari contestingthe validity of Resolution No. 2848 alleging that public respondent isintent on proceeding with a local initiative that proposes anamendment of a national law ISSUE: 1. WON Comelec committed grave abuse of discretion in promulgatingResolution No. 2848 which governs the conduct of the referendum proposing to annul or repeal Pambayang Kapasyahan Blg. 10 2. WON the questioned local initiative covers a subject within the powersof the people of Morong to enact; i . e ., whether such initiative "seeksthe amendment of a national law." HELD:

1. YES. COMELEC committed grave abuse of discretion.FIRST. The process started by private respondents was an INITIATIVE butrespondent Comelec made preparations for a REFERENDUM only.In fact, in the body of the Resolution as reproduced in the footnote below,the word "referendum" is repeated at least 27 times, but "initiative" is notmentioned at all. The Comelec labeled the exercise as a "Referendum"; thecounting of votes was entrusted to a "Referendum Committee"; thedocuments were called "referendum returns"; the canvassers, "ReferendumBoard of Canvassers" and the ballots themselves bore the description"referendum". To repeat, not once was the word "initiative" used in saidbody of Resolution No. 2848. And yet, this exercise is unquestionably anINITIATIVE.As defined, Initiative is the power of the people to propose bills and laws,and to enact or reject them at the polls independent of the legislativeassembly. On the other hand, referendum is the right reserved to the peopleto adopt or reject any act or measure which has been passed by a legislativebody and which in most cases would without action on the part of electorsbecome a law.In initiative and referendum, the Comelec exercises administration andsupervision of the process itself, akin to its powers over the conduct of elections. These law-making powers belong to the people, hence therespondent Commission cannot control or change the substance or thecontent of legislation. 2. The local initiative is NOT ultra vires because the municipal resolution isstill in the proposal stage and not yet an approved law. The municipal resolution is still in the proposal stage. It is not yet anapproved law. Should the people reject it, then there would be nothing tocontest and to adjudicate. It is only when the people have voted for it and ithas become an approved ordinance or resolution that rights and obligationscan be enforced or implemented thereunder. At this point, it is merely aproposal and the writ or prohibition cannot issue upon a mere conjecture orpossibility. Constitutionally speaking, courts may decide only actualcontroversies, not hypothetical questions or cases.In the present case, it is quite clear that the Court has authority to reviewComelec Resolution No. 2848 to determine the commission of grave abuse of discretion. However, it does not have the same authority in regard to theproposed initiative since it has not been promulgated or approved, or passedupon by any "branch or instrumentality" or lower court, for that matter. TheCommission on Elections itself has made no reviewable pronouncementsabout the issues brought by the pleadings. The Comelec simply includedverbatim the proposal in its questioned Resolution No. 2848. Hence, there isreally no decision or action made by a branch, instrumentality or court whichthis Court could take cognizance of and acquire jurisdiction over, in theexercise of its review powers

EN BANC

[G.R. No. 125416. September 26, 1996]

SUBIC BAY METROPOLITAN AUTHORITY, petitioner, vs. COMMISSION ON ELECTIONS, ENRIQUE T. GARCIA and CATALINO A. CALIMBAS,respondents.
DECISION
PANGANIBAN, J.:

The 1987 Constitution is unique in many ways. For one thing, it institutionalized people power in law-making. Learning from the bitter lesson of completely surrendering to Congress the sole authority to make, amend or repeal laws, the present Constitution concurrently vested such prerogatives in the electorate by expressly recognizing their residual and sovereign authority to ordain legislation directly through the concepts and processes of initiative and of referendum. In this Decision, this Court distinguishes referendum from initiative and discusses the practical and legal implications of such differences. It also sets down some guidelines in the conduct and implementation of these two novel and vital features of popular democracy, as well as settles some relevant questions on jurisdiction -- all with the purpose of nurturing, protecting and promoting the people's exercise of direct democracy. In this action for certiorari and prohibition, petitioner seeks to nullify the respondent Commission on Elections' Ruling dated April 17, 1996 and Resolution No. 2848 promulgated on June 27, 1996[1] denying petitioner's plea to stop the holding of a local initiative and referendum on the proposition to recall Pambayang Kapasyahan Blg. 10, Serye 1993, of the Sangguniang Bayan of Morong, Bataan. The Facts On March 13, 1992, Congress enacted Republic Act No. 7227 (The Bases Conversion and Development Act of 1992), which among others, provided for the creation of the Subic Special Economic Zone, thus: "Sec. 12. Subic Special Economic Zone. - Subject to the concurrence by resolution of the Sangguniang Panlungsod of the City of Olongapo and the Sangguniang Bayan of the Municipalities of Subic, Morong and Hermosa, there is hereby created a Special

Economic and Free-port Zone consisting of the City of Olongapo and the Municipality of Subic, Province of Zambales, the lands occupied by the Subic Naval Base and its contiguous extensions as embraced, covered and defined by the 1947 Military Bases Agreement between the Philippines and the United States of America as amended, and within the territorial jurisdiction of the Municipalities of Morong and Hermosa, Province of Bataan, hereinafter referred to as the Subic Special Economic Zone whose metes and bounds shall be delineated in a proclamation to be issued by the President of the Philippines. Within thirty (30) days after the approval of this Act, each local government unit shall submit its resolution of concurrence to join the Subic Special Economic Zone to the Office of the President. Thereafter, the President of the Philippines shall issue a proclamation defining the metes and bounds of the zone as provided herein." (Underscoring supplied) RA 7227 likewise created petitioner to implement the declared national policy of converting the Subic military reservation into alternative productive uses.[2] Petitioner was organized with an authorized capital stock of P20 billion which was fully subscribed and fully paid up by the Republic of the Philippines with, among other assets, "(a)ll lands embraced, covered and defined in Section 12 hereof, as well as permanent improvements and fixtures upon proper inventory not otherwise alienated, conveyed, or transferred to another government agency.[3] On November 24, 1992, the American navy turned over the Subic military reservation to the Philippine government. Immediately, petitioner commenced the implementation of its task, particularly the preservation of the seaports, airports, buildings, houses and other installations left by the American navy. In April 1993, the Sangguniang Bayan of Morong, Bataan passed a Pambayang Kapasyahan Bilang 10, Serye 1993, expressing therein its absolute concurrence, as required by said Sec. 12 of RA 7227, to join the Subic Special Economic Zone. On September 5, 1993, the Sangguniang Bayan of Morong submitted Pambayang Kapasyahan Bilang 10, Serye 1993 to the Office of the President. On May 24, 1993, respondents Garcia, Calimbas and their companions filed a petition with the Sangguniang Bayan of Morong to annul Pambayang Kapasyahan Blg. 10, Serye 1993. The petition prayed for the following: "I. Bawiin, nulipikahin at pawalang-bisa ang Pambayang Kapasyahan Blg. 10 Serye 1993 ng Sangguniang Bayan para sa pag-anib ng Morong sa SSEFZ na walang kundisyon.

II. Palitan ito ng isang Pambayang kapasiyahan na aanib lamang ang Morong sa SSEFZ kung ang mga sumusunod na kondisyones ay ipagkakaloob, ipatutupad at isasagawa para sa kapakanan at interes ng Morong atBataan: (A) Ibalik sa Bataan ang 'Virgin Forests' -- isang bundok na hindi nagagalaw at punong-puno ng malalaking punong-kahoy at iba't-ibang halaman. (B) Ihiwalay ang Grande Island sa SSEFZ at ibalik ito sa Bataan. (K) Isama ang mga lupain ng Bataan na nakapaloob sa SBMA sa pagkukuenta ng salaping ipinagkaloob ng pamahalaang national o 'Internal Revenue Allotment' (IRA) sa Morong, Hermosa at sa Lalawigan. (D) Payagang magtatag rin ng sariling 'special economic zones' ang bawat bayan ng Morong, Hermosa at Dinalupihan. (E) Ibase sa laki ng kanya-kanyang lupa ang pamamahagi ng kikitain ng SBMA. (G) Ibase rin ang alokasyon ng pagbibigay ng trabaho sa laki ng nasabing mga lupa. (H) Pabayaang bukas ang pinto ng SBMA na nasa Morong ng 24 na oras at bukod dito sa magbukas pa ng pinto sa hangganan naman ng Morong at Hermosa upang magkaroon ng pagkakataong umunlad rin ang mga nasabing bayan, pati na rin ng iba pang bayan ng Bataan. (I) Tapusin ang pagkokonkreto ng mga daang Morong-Tala-Orani at Morong-TasigDinalupihan para sa kabutihan ng mga taga-Bataan at tuloy makatulong sa pangangalaga ng mga kabundukan. (J) Magkakaroon ng sapat na representasyon sa pamunuan ng SBMA ang Morong, Hermosa at Bataan." The Sangguniang Bayan of Morong acted upon the petition of respondents Garcia, Calimbas, et al. by promulgating Pambayang Kapasyahan Blg. 18, Serye 1993, requesting Congress of the Philippines to amend certain provisions of R.A. No. 7227, particularly those concerning the matters cited in items (A), (B), (K), (E) and (G) of private respondents' petition. TheSangguniang Bayan of Morong also informed respondents that items (D) and (H) had already been referred to and favorably acted upon by the government agencies concerned, such as the Bases Conversion Development Authority and the Office of the President.

Not satisfied, and within 30 days from submission of their petition, herein respondents resorted to their power of initiative under the Local Government Code of 1991,[4] Sec. 122 paragraph (b) of which provides as follows: "Sec. 122. Procedure in Local Initiative. xxx xxx xxx

(b) If no favorable action thereon is taken by the sanggunian concerned, the proponents, through their duly authorized and registered representatives, may invoke their power of initiative, giving notice thereof to the sanggunian concerned. xxx xxx x x x."

On July 6, 1993, respondent Commission En Banc in Comelec Resolution No. 93-1623 denied the petition for local initiative by herein private respondents on the ground that the subject thereof was merely a resolution (pambayang kapasyahan) and not an ordinance. On July 13, 1993, public respondent Comelec En Banc (thru Comelec Resolution no. 93-1676) further directed its Provincial Election Supervisor to hold action on the authentication of signatures being solicited by private respondents. On August 15, 1993, private respondents instituted a petition for certiorari and mandamus[5] before this Court against the Commission on Elections and the Sangguniang Bayan of Morong, Bataan, to set aside Comelec Resolution No. 93-1623 insofar as it disallowed the conduct of a local initiative to annul Pambayang Kapasyahan Bilang 10, Serye 1993, and Comelec Resolution No. 93-1676 insofar as it prevented the Provincial Election Supervisor of Bataan from proceeding with the authentication of the required number of signatures in support of the initiative and the gathering of signatures. On February 1, 1995, pursuant to Sec. 12 of RA 7227, the President of the Philippines issued proclamation No. 532 defining the metes and bounds of the SSEZ. Said proclamation included in the SSEZ all the lands within the former Subic Naval Base, including Grande Island and that portion of the former naval base within the territorial jurisdiction of the Municipality ofMorong. On June 18, 1996, respondent Comelec issued Resolution No. 2845, adopting therein a "Calendar of Activities for local referendum on certain municipal ordinance passed by the Sangguniang Bayan of Morong, Bataan", and which indicated, among others, the scheduled referendum Day (July 27, 1996, Saturday). On June 27, 1996, the Comelec promulgated the assailed

Resolution No. 2848 providing for "the rules and guidelines to govern the conduct of the referendum proposing to annul or repeal Kapasyahan Blg. 10, Serye 1993 of the Sangguniang Bayan of Morong, Bataan". On July 10, 1996, petitioner instituted the present petition for certiorari and prohibition contesting the validity of Resolution No. 2848 and alleging, inter alia, that public respondent "is intent on proceeding with a local initiative that proposes an amendment of a national law. x x x" The Issues The petition[6] presents the following "argument": "Respondent Commission on Elections committed grave abuse of discretion amounting to lack of jurisdiction in scheduling a local initiative which seeks the amendment of a national law." In his Comment, private respondent Garcia claims that (1) petitioner has failed to show the existence of an actual case or controversy; (2) x x x petitioner seeks to overturn a decision/judgment which has long become final and executory; (3) x x x public respondent has not abused its discretion and has in fact acted within its jurisdiction; (and) (4) x x x the concurrence of local government units is required for the establishment of the Subic Special Economic Zone." Private respondent Calimbas, now the incumbent Mayor of Morong, in his Reply (should be Comment) joined petitioner's cause because "(a)fter several meetings with petitioner's Chairman and staff and after consultation with legal counsel, respondent Calimbas discovered that the demands in the petition for a local initiative/referendum were not legally feasible."[7] The Solicitor General, as counsel for public respondent, identified two issues, as follows: "1. Whether or not the Comelec can be enjoined from scheduling/conducting the local intiative proposing to annul Pambayang Kapasyahan Blg. 10, Serye 1993 of the Sangguniang Bayan of Morong, Bataan. 2. Whether or not the Comelec committed grave abuse of discretion in denying the request of petitioner SBMA to stop the local initiative."

On July 23, 1996, the Court heard oral argument by the parties, after which, it issued the following resolution: "The Court Resolved to (1) GRANT the Motion to Admit the Attached Comment filed by counsel for private respondent Enrique T. Garcia, dated July 22, 1996 and (2) NOTE the: (a) Reply (should be comment) to the petition for certiorari and prohibition with prayer for temporary restraining order and/or writ of preliminary injunctiom, filed by counsel for respondent Catalino Calimbas, dated July 22, 1996; (b) Separate Comments on the petition, filed by: (b-1) the Solicitor General for respondent Commission on Elections dated July 19, 1996 and (b-2) counsel for private respondent Enrique T. Garcia, dated July 22, 1996 and (c) Manifestation filed by counsel for petitioner dated July 22, 1996. At the hearing of this case this morning, Atty. Rodolfo O. Reyes appeared and argued for petitioner Subic Bay Metropolitan Authority (SBMA) while Atty. Sixto Brillantes for private respondent Enrique T. Garcia, and Atty. Oscar L. Karaan for respondent Catalino Calimbas. Solicitor General Raul Goco, Assistant Solicitor General Cecilio O. Estoesta and Solicitor Zenaida Hernandez-Perez appeared for respondent Commission on Elections with Solicitor General Goco arguing. Before the Court adjourned, the Court directed the counsel for both parties to INFORM this Court by Friday, July 26, 1996, whether or not Commission on Elections would push through with the initiative/referendum this Saturday, July 27, 1996. Thereafter, the case shall be considered SUBMITTED for resolution. At 2:50 p.m. July 23, 1996, the Court received by facsimile transmission an Order dated also on July 23, 1996 from the respondent Commission on Elections En Banc inter alia 'to hold in abeyance the scheduled referendum (initiative) on July 27, 1996 pending resolution of G.R. No. 125416.' In view of this Order, the petitioner's application for a temporary restraining order and/or writ of preliminary injunction has become moot and academic and will thus not be passed upon by this Court at this time. Puno, J., no part due to relationship. Bellosillo, J., is on leave." After careful study of and judicious deliberation on the submissions and arguments of the parties, the Court believes that the issues may be restated as follows: (1) Whether this petition "seeks to overturn a decision/judgment which has long become final and executory"; namely G.R. No. 111230, Enrique Garcia, et al. vs. Commission on Elections, et al.;

(2) Whether the respondent Comelec committed grave abuse of discretion in promulgating and implementing its Resolution No. 2848 which "govern(s) the conduct of the referendum proposing to annul or repealPambayang Kapasyahan Blg. 10, Serye 1993 of the Sangguniang Bayan of Morong, Bataan;" and (3) Whether the questioned local initiative covers a subject within the powers of the people of Morong to enact; i.e., whether such initiative "seeks the amendment of a national law." First Issue: Bar by Final Judgment Respondent Garcia contends that this Court had already ruled with finality in Enrique T. Garcia, et al. vs. Commission on Elections, et. al.[8] on "the very issue raised in (the) petition: whether or not there can be an initiative by the people of Morong, Bataan on the subject proposition -- the very same proposition, it bears emphasizing, the submission of which to the people of Morong, Bataan is now sought to be enjoined by petitioner x x x". We disagree. The only issue resolved in the earlier Garcia case is whether a municipal resolution as contra-distinguished from an ordinance may be the proper subject of an initiative and/or referendum. We quote from our said Decision:[9] "In light of this legal backdrop, the essential issue to be resolved in the case at bench is whether Pambayang Kapasyahan Blg. 10, serye 1993 of the Sangguniang Bayan of Morong, Bataan is the proper subject of an initiative. Respondents take the negative stance as they contend that under the Local Government Code of 1991 only an ordinance can be the subject of initiative. They rely on Section 120, Chapter 2, Title XI, Book I of the Local Government Code of 1991 which provides: 'Local Initiative Defined. -- Local initiative is the legal process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance.' We reject respondent's narrow and literal reading of the above provision for it will collide with the Constitution and will subvert the intent of the lawmakers in enacting the provisions of the Local Government of 1991 on initiative and referendum. The Constitution clearly includes not only ordinances but resolutions as appropriate subjects of a local initiative. Section 32 of Article VI provides in luminous language: 'The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by

the Congress, or local legislative body x x x'. An act includes a resolution. Black defines an acts 'an expression of will or purpose . . . it may denote something done . . . as a legislature, including not merely physical acts, but also decrees, edicts, laws, judgement, resolves, awards and determination x x x.' It is basic that a law should be construed in harmony with and not in violation of the Constitution. In line with this postulates, we held in In Re Guarina that if there is doubt or uncertainly as to the meaning of the legislative, if the words or provisions are obscure, or if the enactment is fairly susceptible of two or more construction, that interpretations will be adopted which will avoid the effect of unconstitutionality, even though it may be necessary, for this purpose, to disregard the more usual or apparent import of the language used.' " Moreover, we reviewed our rollo in said G.R. No. 111230 and we found that the sole issue presented by the pleadings was the question of "whether or not a Sangguniang Bayan Resolution can be the subject of a valid initiative or referendum".[10] In the present case, petitioner is not contesting the propriety of municipal resolution as the form by which these two new constitutional prerogatives of the people may validly exercised. What is at issue here is whether Pambayang Kapasyahan Blg. 10, Serye 1993, as worded, is sufficient in form and substance for submission to the people for their approval; in fine, whether the Comelec acted properly and juridically in promulgating and implementing Resolution No. 2848. Second Issue: Sufficiency of Comelec Resolution No. 2848 The main issue in this case may be re-started thus: Did respondent Comelec commit grave abuse of discretion in promulgating and implementing Resolution No. 2848? We answer the question in the affirmative. To begin with, the process started by private respondents was an INITIATIVE but respondent Comelec made preparations for a REFERENDUM only. In fact, in the body of the Resolution[11]as reproduced in the footnote below the word "referendum" is repeated at least 27 times, but "initiative" is not mentioned at all. The Comelec labeled the exercise as a "Referendum"; the counting of votes was entrusted to a "Referendum Committee"; the documents were called "referendum returns"; the canvassers, "Referendum Board of Canvassers" and the ballots themselves bore the description "referendum". To repeat, not once was the word

"initiative" used in said body of Resolution No. 2848. And yet, this exercise is unquestionably an INITIATIVE. There are statutory and conceptual demarcations between a referendum and an initiative. In enacting the "Initiative and Referendum Act,[12] Congress differentiated one term from the other, thus: (a) "Initiative" is the power of the people to propose amendments to the Constitution or to propose and enact legislations through an election called for the purpose. There are three (3) systems of initiative, namely:
a.1. Initiative on the Constitution which refers to a petition proposing amendments to the Constitution; a.2. Initiative on statutes which refers to a petition proposing to enact a national legislation; and a.3. Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution or ordinance.

(b) "Indirect initiative" is exercise of initiative by the people through a proposition sent to Congress or the local legislative body for action. (c) "Referendum" is the power of the electorate to approve or reject a legislation through an election called for the purpose. It may be of two classes, namely:
c.1. Referendum on statutes which refers to a petition to approve or reject an act or law, or part thereof, passed by Congress; and c.2. Referendum on local law which refers to a petition to approve or reject a law, resolution or ordinance enacted by regional assemblies and local legislative bodies.

Along these statutory definitions, Justice Isagani A. Cruz[13] defines initiative as the "power of the people to propose bills and laws, and to enact or reject them at the polls independent of the legislative assembly." On the other hand, he explains that referendum "is the right reserved to the people to adopt or reject any act or measure which has been passed by a legislative body and which in most cases would without action on the part of electors become a law." The foregoing definitions, which are based on Black's[14] and other leading American authorities, are echoed in the Local Government Code (RA 7160) substantially as follows: "SEC. 120. Local Initiative Defined. -- Local Initiative is the legal process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance.

"SEC. 126. Local Referendum Defined. -- Local referendum is the legal process whereby the registered voters of the local government units may approve, amend or reject any ordinance enacted by the sanggunian. The local referendum shall be held under the control and direction of the Comelec within sixty (60) days in case of provinces and cities, forty-five (45) days in case of municipalities and thirty (30) days in case of barangays. The Comelec shall certify and proclaim the results of the said referendum." Prescinding from these definitions, we gather that initiative is resorted to (or initiated) by the people directly either because the law-making body fails or refuses to enact the law, ordinance, resolution or act that they desire or because they want to amend or modify one already existing. Under Sec. 13 of R.A. 6735, the local legislative body is given the opportunity to enact the proposal. If its refuses/neglects to do so within thirty (30) days from its presentation, the proponents through their duly-authorized and registered representatives may invoke their power of initiative, giving notice thereof to the local legislative body concerned. Should the proponents be able to collect the number of signed conformities within the period granted by said statute, the Commission on Elections "shall then set a date for the initiative (not referendum) at which the proposition shall be submitted to the registered voters in the local government unit concerned x x x". On the other hand, in a local referendum, the law-making body submits to the registered voters of its territorial jurisdiction, for approval or rejection, any ordinance or resolution which is duly enacted or approved by such law-making authority. Said referendum shall be conducted also under the control and direction of the Commission on Elections.[15] In other words, while initiative is entirely the work of the electorate, referendum is begun and consented to by the law-making body. Initiative is a process of law-making by the people themselves without the participation and against the wishes of their elected representatives, while referendum consists merely of the electorate approving or rejecting what has been drawn up or enacted by a legislative body. Hence, the process and the voting in an initiative are understandably more complex than in a referendum where expectedly the voters will simply write either "Yes" or "No" in the ballot. [Note: While the above quoted laws variously refer to initiative and referendum as "powers" or "legal processes", these can also be "rights", as Justice Cruz terms them, or "concepts", or "the proposal" itself (in the case of initiative) being referred to in this Decision.]

From the above differentiation, it follows that there is need for the Comelec to supervise an initiative more closely, its authority thereon extending not only to the counting and canvassing of votes but also to seeing to it that the matter or act submitted to the people is in the proper form and language so it may be easily understood and voted upon by the electorate. This is especially true where the proposed legislation is lengthy and complicated, and should thus be broken down into several autonomous parts, each such part to be voted upon separately. Care must also be exercised that "(n)o petition embracing more than one subject shall be submitted to the electorate,"[16] although "two or more propositions may be submitted in an initiative".[17] It should be noted that under Sec. 13 (c) of RA 6735, the "Secretary of Local Government or his designated representative shall extend assistance in the formulation of the proposition." In initiative and referendum, the Comelec exercises administration and supervision of the process itself, akin to its powers over the conduct of elections. These law-making powers belong to the people, hence the respondent Commission cannot control or change the substance or the content of legislation. In the exercise of its authority, it may (in fact it should have done so already) issue relevant and adequate guidelines and rules for the orderly exercise of these "people-power" features of our Constitution. Third Issue: Withdrawal of Adherence and Imposition of Conditionalities -- Ultra Vires? Petitioner maintains that the proposition sought to be submitted in the plebiscite, namely, Pambayang Kapasyahan Blg. 10, Serye 1993, is ultra vires or beyond the powers of the Sangguniang Bayan to enact,[18] stressing that under Sec. 124 (b) of RA 7160 (the Local Government Code), "local initiative shall cover only such subjects or matters as are within the legal powers of the sanggunians to enact." Elsewise stated, a local initiative may enact only such ordinances or resolutions as the municipal council itself could, if it decided to so enact.[19] After the Sangguniang Bayan of Morong and the other municipalities concerned (Olongapo, Subic and Hermosa) gave their resolutions of concurrence, and by reason of which the SSEZ had been created, whose metes and bounds had already been delineated by Proclamation No. 532 issued on February 1, 1995 in accordance with Section 12 of R.A. No. 7227, the power to withdraw such concurrence and/or to substitute therefor a conditional concurrence is no longer within the authority and competence of the Municipal Council of Morong to

legislate. Furthermore, petitioner adds, the specific conditionalities included in the questioned municipal resolution are beyond the powers of the Council to impose. Hence, such withdrawal can no longer be enacted or conditionalities imposed by initiative. In other words, petitioner insists, the creation of SSEZ is now a fait accompli for the benefit of the entire nation. Thus, Morong cannot unilaterally withdraw its concurrence or impose new conditions for such concurrence as this would effectively render nugatory the creation by (national) law of the SSEZ and would deprive the entire nation of the benefits to be derived therefrom. Once created, SSEZ has ceased to be a local concern. It has become a national project. On the other hand, private respondent Garcia counters that such argument is premature and conjectural because at this point, the resolution is just a proposal. If the people should reject it during the referendum, then there is nothing to declare as illegal. Deliberating on this issue, the Court agrees with private respondent Garcia that indeed, the municipal resolution is still in the proposal stage. It is not yet an approved law. Should the people reject it, then there would be nothing to contest and to adjudicate. It is only when the people have voted for it and it has become an approved ordinance or resolution that rights and obligations can be enforced or implemented thereunder. At this point, it is merely a proposal and the writ of prohibition cannot issue upon a mere conjecture or possibility. Constitutionally speaking, courts may decide only actual controversies, not hypothetical questions or cases.[20] We also note that the Initiative and Referendum Act itself provides [21] that "(n)othing in this Act shall prevent or preclude the proper courts from declaring null and void any propositionapproved pursuant to this Act x x x." So too, the Supreme Court is basically a review court.[22] It passes upon errors of law (and sometimes of fact, as in the case of mandatory appeals of capital offenses) of lower courts as well as determines whether there had been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any "branch or instrumentality" of government. In the present case, it is quite clear that the Court has authority to review Comelec Resolution No. 2848 to determine the commission of grave abuse of discretion. However, it does not have the same authority in regard to the proposed initiative since it has not been promulgated or approved, or passed upon by any "branch or instrumentality" or lower court, for that matter. The Commission on Elections itself has made no reviewable pronouncements about the issues brought by the pleadings. The Comelec simply included verbatim the proposal in its questioned Resolution No. 2848. Hence, there is really no decision or action

made by a branch, instrumentality or court which this Court could take cognizance of and acquire jurisdiction over, in the exercise of its review powers. Having said that, we are in no wise suggesting that the Comelec itself has no power to pass upon proposed resolutions in an initiative. Quite the contrary, we are ruling that these matters are in fact within the initiatory jurisdiction of the Commission -- to which then the herein basic questions ought to have been addressed, and by which the same should have been decided in the first instance. In other words, while regular courts may take jurisdiction over "approved propositions" per said Sec. 18 of R.A. 6735, the Comelec in the exercise of its quasi-judicial and administrative powers may adjudicate and pass upon such proposals insofar as their form and language are concerned, as discussed earlier; and it may be added, even as to content, where the proposals or parts thereof are patently and clearly outside the "capacity of the local legislative body to enact."[23] Accordingly, the question of whether the subject of this initiative is within the capacity of the Municipal Council of Morong to enact may be ruled upon by the Comelec upon remand and after hearing the parties thereon. While on the subject of capacity of the local lawmaking body, it would be fruitful for the parties and the Comelec to plead and adjudicate, respectively, the question of whether Grande Island and the "virgin forests" mentioned in the proposed initiative belong to the national government and thus cannot be segregated from the Zone and "returned to Bataan" by the simple expedient of passing a municipal resolution. We note that Sec. 13 (e) of R.A. 7227 speaks of the full subscription and payment of the P20 billion authorized capital stock of the Subic Authority by the Republic, with, aside from cash and other assets, the "... lands, embraced, covered and defined in Section 12 hereof, ..." which includes said island and forests. The ownership of said lands is a question of fact that may be taken up in the proper forum -- the Commission on Elections. Another question which the parties may wish to submit to the Comelec upon remand of the initiative is whether the proposal, assuming it is within the capacity of the Municipal Council to enact, may be divided into several parts for purposes of voting. Item "I" is a proposal to recall, nullify and render without effect (bawiin, nulipikahin at pawalangbisa) Municipal Resolution No. 10, Series of 1993. On the other hand, Item "II" proposes to change or replace (palitan) said resolution with another municipal resolution of concurrence provided certain conditions enumerated thereunder would be granted, obeyed and implemented (ipagkakaloob, ipatutupad at isasagawa) for the benefit and interest of Morong and Bataan. A voter may favor Item I -i.e., he may want atotal dismemberment of Morong from the Authority -- but

may not agree with any of the conditions set forth in Item II. Should the proposal then be divided and be voted upon separately and independently? All told, we shall not pass upon the third issue of ultra vires on the ground of prematurity. Epilogue In sum, we hold that (i) our decision in the earlier Garcia case is not a bar to the present controversy as the issue raised and decided therein is different from the questions involved here; (ii) the respondent Commission should be given an opportunity to review and correct its errors in promulgating its Resolution No. 2848 and in preparing -- if necessary -- for the plebiscite; and (iii) that the said Commission has administrative and initiatory quasi-judicial jurisdiction to pass upon the question of whether the proposal is sufficient in form and language and whether such proposal or part or parts thereof are clearly and patently outside the powers of the municipal council of Morong to enact, and therefore violative of law. In deciding this case, the Court realizes that initiative and referendum, as concepts and processes, are new in our country. We are remanding the matter to the Comelec so that proper corrective measures, as above discussed, may be undertaken, with a view to helping fulfill our people's aspirations for the actualization of effective direct sovereignty. Indeed we recognize that "(p)rovisions for initiative and referendum are liberally construed to effectuate their purposes, to facilitate and not to hamper the exercise by the voters of the rights granted thereby."[24] In his authoritative treatise on the Constitution, Fr. Joaquin G. Bernas, S.J. treasures these "instruments which can be used should the legislature show itself indifferent to the needs of the people."[25]Impelled by a sense of urgency, Congress enacted Republic Act No. 6735 to give life and form to the constitutional mandate. Congress also interphased initiative and referendum into the workings of local governments by including a chapter on this subject in the local Government Code of 1991.[26] And the Commission on Elections can do no less by seasonably and judiciously promulgating guidelines and rules, for both national and local use, in implementation of these laws. For its part, this Court early on expressly recognized the revolutionary import of reserving people power in the process of law-making.[27] Like elections, initiative and referendum are powerful and valuable modes of expressing popular sovereignty. And this Court as a matter of policy and doctrine will exert every effort to nurture, protect and promote their legitimate

exercise. For it is but sound public policy to enable the electorate to express their free and untrammeled will, not only in the election of their anointed lawmakers and executives, but also in the formulation of the very rules and laws by which our society shall be governed and managed. WHEREFORE the petition is GRANTED. Resolution No. 2848 is ANNULLED and SET ASIDE. The initiative on Pambayang Kapasyahan Blg. 10, Serye 1993 is REMANDED to the Commission on Elections for further proceedings consistent with the foregoing discussion. No costs. IT IS SO ORDERED. Narvasa, C.J., Padilla, Regalado, Davide, Jr., Bellosillo, Melo, Vitug, Kapunan, Francisco, and Hermosisima, Jr., JJ., concur. Romero, and Mendoza, JJ., on official leave. Puno, J., no part due to relationship.
Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 113107 July 20, 1994 WILMAR P. LUCERO, petitioner, vs. COMMISSION ON ELECTIONS and JOSE L. ONG, JR., respondents.

G.R. No. 113509 July 20, 1994 JOSE L. ONG, JR., petitioner, vs. COMMISSION ON ELECTIONS and WILMAR P. LUCERO, respondents. Cesar A. Sevilla & Associates for Wilmar Lucero. Napolean G. Rama and Remollo Melocoton & Associates for Jose L. Ong, Jr.

DAVIDE, JR., J.: After the issues had been joined in these consolidated cases, the Court resolved to give due course to the petitions therein and to decide the cases on the merits. It can no longer allow the parties to

delay these cases. Their legal skirmishes, which have unduly magnified uncomplicated issues, have effectively deprived the people of the Second Legislative District of Northern Samar of representation in the House of Representatives for more than two years now. These cases are sequels to G. R. No. 105717, entitled "Jose L. Ong, Jr. vs. Commission on Elections and Wilmar P. Lucero," which we finally resolved on 22 April 1993. 1 The petitioners were two of the five candidates 2 for the Second Legislative District of Northern Samar in the synchronized national and local elections held on 11 May 1992. The canvass of the Provincial Board of Canvassers (PBC) of Northern Samar credited Jose L. Ong, Jr. with 24,272 votes and Wilmar P. Lucero with 24,068 votes, or a lead by Ong of 204 votes. However, this tally did not include the results of Precinct No. 7 of the municipality of Silvino Lobos, where the submitted election returns had not been canvassed because they were illegible; of Precinct No. 13 of Silvino Lobos, where the ballot boxes were snatched and no election was held; and of Precinct No. 16, also of Silvino Lobos, where all copies of the election returns were missing. On 22 May 1992, Lucero asked the Commission on Elections (COMELEC), in SPA No. 92-282, to: 1. Forthwith order Respondent Provincial Board of Canvassers for Northern Samar to suspend the proclamation of Private Respondent Jose L. Ong, Jr.; 2. Direct Respondent Provincial Board of Canvassers for Northern Samar to correct the Certificate of Canvass (CEF 20) for Las Navas and, accordingly, to correct the total votes so far counted by it for Petitioner from 24,068 to 24,088, thus reducing the margin it found in favor of Private Respondent Jose L. Ong, Jr. from 204 to 184 votes only; 3. Order a special election in Precinct 13, Barangay Gusaran, Silvino Lobos, pursuant to Section 6 of the Omnibus Election Code; 4. Order a recount of the votes for Representative of the Second District of Northern Samar in Precinct 16, Barangay Tubgon, and Precinct 7, Barangay Camayaan, both of Silvino Lobos, pursuant to Section 234 of the Omnibus Election Code;
5. Order a recount of the votes for Representative in the 52 precincts herein above enumerated in order to correct "manifest errors" pursuant to Section 15 of Republic Act 7166 and for this purpose order the impounding and safekeeping of the ballot boxes of all said precincts in order to preserve the integrity of the ballots and other election paraphernalia contained therein. 3

On 2 June 1992, the COMELEC, acting on Lucero's urgent manifestation, directed the PBC to desist from reconvening until further orders. On 8 June 1992, Ong moved to lift the suspension of the proceedings by the PBC, which Lucero opposed on 10 June 1992 on the ground that the canvass could not be completed even if the PBC were to reconvene because no election was held in Precinct No. 13 (Barangay Gusaran) of Silvino Lobos and there was no canvassing of the votes in Precinct No. 7 (Barangay Camayaan) and Precinct No. 16 (Barangay Tubgon) both of Silvino Lobos. On 13 June 1993, the COMELEC en banc promulgated a resolution, the dispositive portion of which reads:

Accordingly, the Commission hereby orders the Provincial Election Supervisor of Northern Samar to bring to the Commission within three (3) days from receipt hereof the ballot boxes from Precinct 7 and 16 of Silvino Lobos, to be escorted by representatives from the petitioner and the respondents as well as other parties who have an interest to protect, and to notify said parties hereof. The Municipal Treasurer of said town is directed to turn over custody of said ballot boxes to the Provincial Election Supervisor, and the keys thereof shall likewise be turned over by the appropriate officials in custody thereof to the PES, who shall in turn give one key for each ballot box to the duly authorized representatives of the petitioner and the respondent. The Commission likewise orders the Election Registrar of Silvino Lobos, Northern Samar, and the Chairman and members of the Boards of Election Inspectors of Precincts 7 and 16 of said municipality to appear before the Commission within three (3) days from receipt hereof. Below the signatures of the Chairman and the six Commissioners, however, Chairman Christian S. Monsod and Commissioners Haydee B. Yorac, Dario C. Rama and Regalado E. Maambong directed as follows:
We vote in favor of this resolution except that portion which denied the correction of the Certificate of Canvass for Las Navas. Correction of the Certificate of Canvass for Las Navas is in order in view of the testimony of the election registrar of Las Navas to the effect that Wilmar Lucero garnered 2,537 votes for Las Navas and not 2,517. Petition for correction was duly filed by Lucero with the Provincial Board of Canvassers of Northern Samar on May 19, 1992. The Provincial Board of Canvassers of Northern Samar is therefore directed to retabulate the total number of votes for Las Navas for Lucero and enter the same in the Provincial Certificate of Canvass. 4

On 15 June 1992, Lucero filed an urgent motion to constitute a Special Board of Election Inspectors (SBEI) to count the votes of Precincts Nos. 7 and 16 of Silvino Lobos. 5 On 20 June 1992, Ong, in a special civil action for certiorari filed with this Court and subsequently docketed as G. R. No. 105717, questioned the order for the recount of ballots in Precincts No. 7 and 16. Despite the pendency of this petition, the COMELEC ordered the recount of the ballots in Precinct No. 16 by a SBEI which recorded 43 votes for Lucero and 2 votes for Ong. 6 On 25 June 1992, this Court issued in G. R. No. 105717 a temporary restraining order against the implementation by the COMELEC of its Order of 2 June 1992 and its Resolution of 13 June 1992. On 23 December 1992, this Court promulgated its decision in G. R. No. 105717, 7 the dispositive portion of which reads: WHEREFORE, the petition for certiorari is GRANTED and a writ of preliminary injunction is hereby ISSUED directing the COMELEC to CEASE and DESIST from implementing its order of June 2, 1992, and its resolution dated June 13, 1992, and the same are hereby declared NULLIFIED. Consequently, the election returns based on the recounted ballots from Precinct 16 are hereby DISCARDED and in lieu thereof, authentic returns from said precinct should instead be

made a basis for the canvassing. The Provincial Board of Canvassers of Northern Samar is hereby directed to PROCEED WITH DISPATCH in the canvassing of ballots until completed and to PROCLAIM the duly elected winner of the congressional seat for the Second District of Northern Samar.
This decision is immediately executory. 8

Acting on the motions for reconsideration and clarification respectively filed by the COMELEC and Lucero, this Court, on 22 April 1993, modified 9 its aforesaid disposition in G. R. No. 105717 as follows; IN VIEW OF ALL THE FOREGOING, the dispositive portion of the December 23, 1992 Decision is hereby MODIFIED to read as follows; "WHEREFORE, THE PETITION IS GRANTED. THE JUNE 2, 1992 ORDER OF RESPONDENT COMMISSION ON ELECTIONS IN SPA NO. 92-282 IS HEREBY ANNULLED AND SET ASIDE. ITS JUNE 13, 1992 RESOLUTION THEREIN IS LIKEWISE ANNULLED AND SET ASIDE INSOFAR AS IT AFFECTS PRECINCT NO. 7 OF SILVINO LOBOS, THE RECOUNT OF VOTES IN THE 52 OTHER PRECINCTS AND THE CORRECTION OF THE CERTIFICATE OF CANVASS OF LAS NAVAS, BUT IS AFFIRMED WITH RESPECT TO THE ISSUE OF HOLDING A SPECIAL ELECTION IN PRECINCT NO. 13 AND THE RECOUNT OF THE BALLOTS IN PRECINCT NO. 16. THE RESPONDENT COMMISSION ON ELECTIONS IS HEREBY DIRECTED TO ASSIGN SPA NO. 92-282 TO ANY OF ITS DIVISIONS PURSUANT TO ITS RULE ON RAFFLE OF CASES FOR IT TO RESOLVE THE PRE-PROCLAMATION ISSUES THEREIN, TAKING INTO ACCOUNT THE ABOVE PRONOUNCEMENTS AND THE EXCEPTIONS PROVIDED FOR IN SECTION 15 OF R. A. NO. 7166. WHENEVER WARRANTED BY THE CIRCUMSTANCES, THE COMMISSION MAY (A) CALL A SPECIAL ELECTION IN PRECINCT NO. 13 OF SILVINO LOBOS, NORTHERN SAMAR, AND (B) RECONVENE THE SPECIAL MUNICIPAL BOARD OF CANVASSERS AND THE SPECIAL PROVINCIAL BOARD OF CANVASSERS IT HAD EARLIER CONSTITUTED OR CREATE NEW ONES.
ALL THE FOREGOING SHOULD BE DONE WITH PURPOSEFUL DISPATCH TO THE END THAT THE WINNING CANDIDATE FOR CONGRESSMAN REPRESENTING THE SECOND CONGRESSIONAL DISTRICT OF NORTHERN SAMAR MAY BE PROCLAIMED AS SOON AS POSSIBLE." 10

As to the certificate of canvass of the municipality of Las Navas, this Court explicitly stated;

The correction of the certificate of canvass of Las Navas is likewise in order. Even though a pre-proclamation issue is involved, the correction of the manifest error is allowed under Section 15 of R. A. No. 7166. 11

Conformably with the aforesaid modified judgment in G. R. No. 105717, SPA No. 92-282 was raffled to the First Division of the COMELEC which conducted hearings thereon and received the arguments and evidence of both parties who then submitted their respective memoranda on 25 June 1994. However, during the consultations on the case by the Members of the First Division, the concurrence of at least two of them could not be obtained; accordingly, pursuant to the COMELEC Rules, the case was elevated for proper disposition to the COMELEC en banc to which the parties submitted their respective memoranda on 19 November 1993. 12 On 7 January 1994, the COMELEC en banc promulgated a resolution 13 whose dispositive portion reads as follows: 1. To direct the special Provincial Board of Canvassers for Northern Samar (a) to include in the municipal certificate of canvass of Silvino Lobos the forty-three (43) votes of petitioner Lucero and the two (2) votes of private respondent Ong as reflected in the election returns of Precinct No. 16 (Barangay Tubgon) prepared by the special Board of Election Inspectors constituted by the Commission to recount the votes (ballots) in said precinct, as canvassed by the special Municipal Board of Canvassers for Silvino Lobos; (b) to include in the municipal certificate of canvass of Silvino Lobos, the sixty-one (61) votes of private respondent Ong and 29, 30, or 31 votes of petitioner Lucero as reflected in the election returns (MBC Copy submitted as "Comelec Copy") of Precinct No. 7 (Barangay Camaya-an), as canvassed by the special Municipal Board of Canvassers for Silvino Lobos; (c) to retabulate the total number of votes of petitioner Lucero for the Municipality of Las Navas and to enter in the provincial certificate of canvass the correct total which is two thousand five hundred thirty-seven (2,537) as reflected in the Statement of Votes (C. E. Form 20-A) prepared and submitted by the Municipal Board of Canvassers for Las Navas; and (d) to submit to the Commission a computation of the votes of the contending parties including therein all the votes of petitioner Lucero (with alternative totals) and private respondent Ong, in Precinct Nos. 7 and 16 of Silvino Lobos and the total votes of petitioner Lucero in the Municipality of Las Navas as corrected. However, under no circumstances should the Board proclaim any winning candidate until instructed to do so by the Commission; 2. To issue an Order calling for a special election in the last remaining Precinct No. 13 (Barangay Gusaran) of the Municipality of Silvino Lobos if justified by the result of the canvass by the Provincial Board of Canvassers for Northern Samar, and to notify the parties of the schedule of election activities for that precinct; and 3. After including in the tabulation the results of the special election of Precinct No. 13, to decide the issue of the recount of the votes (ballots) of Precinct No. 7 of Silvino Lobos, pursuant to Section 236 of the Omnibus Election Code, to resolve the discrepancy of the votes of petitioner Lucero in the same return, if such discrepancy of votes of the candidates concerned would affect the over-all results of the election after the totality of the votes of the contending parties shall have been determined. Both Lucero and Ong have come to this Court by way of separate special civil actions for certiorari to challenge the Resolution.

In G. R. No. 113107, Lucero maintains that (1) the count of the ballots in Precinct No. 7 of Silvino Lobos must be unconditional because the election returns therefrom are invalid; and (2) his chances in the special election in Precinct No. 13 of Silvino Lobos would be spoiled if the returns for Precinct No. 7 were to be included beforehand in the canvass. In G. R. No. 113509, Ong questions (1) the authority of the COMELEC to order the correction of the alleged manifest error in the Municipal Certificate of Canvass of Las Navas despite the absence of any appeal; and (2) the authority of the COMELEC to call for a special election in Precinct No. 13 almost two years after the regular election. As we see it, the core issues in these consolidated cases are: (1) Whether there should first be a count of the ballots of Precinct No. 7 of Silvino Lobos before determining the necessity of holding a special election in Precinct No. 13 of Silvino Lobos: (2) Whether the COMELEC acted with grave abuse of discretion in ordering the correction of the alleged manifest error in the Municipal Certificate of Canvass of Las Navas; and (3) Whether the COMELEC acted with grave abuse of discretion in calling for a special election in Precinct No. 13 after almost two (2) years, or more specifically after one (1) year and ten (10) months, following the day of the synchronized elections. We shall take up these issues seriatim. I. The answer to the first issue is in the affirmative. We find the COMELEC's disposition regarding Precinct No. 7 to be unclear. In the first paragraph of the dispositive portion of the challenged resolution, it directs the Provincial Board of Canvassers "to include in the municipal certificate of canvas of Silvino Lobos the sixty-one (61) votes of private respondent Ong and 29, 30, or 31 votes of petitioner Lucero as reflected in the election returns (MBC copy submitted as "COMELEC Copy") of Precinct No. 7 (Barangay Camaya-an), as canvassed by the special Municipal Board of Canvassers for Silvino Lobos," and "to submit to the Commission a computation of the votes of the contending parties including therein all the votes of petitioner Lucero (with alternative totals) and private respondent Ong, in Precinct Nos. 7 and 16 of Silvino Lobos. . . ." On the other hand, in the fourth paragraph of the said dispositive portion, it orders the Provincial Board of Canvassers, after "including in the tabulation the results of the special election of Precinct No. 13," to "decide the issue of the recount of the votes (ballots) of Precinct No. 7 of Silvino Lobos, pursuant to Section 236 of the Omnibus Election Code [and] to resolve the discrepancy of the votes of petitioner Lucero in the same return, if such discrepancy of votes of the candidate concerned would affect the over-all results of the election after the totality of the votes of the contending parties shall have been determined." Obviously, instead of ordering an outright recount of the ballots of Precinct No. 7, the COMELEC would first give full faith and credit to the questioned election returns thereof, which it describes as

the "Comelec Copy," and, accordingly, direct the PBC to include in the municipal certificate of canvass of Silvino Lobos the 61 votes for Ong and the uncertain votes for Lucero 29, 30, or 31. The recount would only be made if after a special election in Precinct No. 13 shall have been held, it shall be determined that such a recount would be necessary. We fail to grasp the logic of the proposition. First, it is clear to us that the COMELEC, which has in its possession the so-called "Comelec Copy" of the questioned election returns of Precinct No. 7 and heard the witnesses who testified thereon, doubts the authenticity of the so-called "Comelec Copy" of the election returns of Precinct No. 7;14 hence, it authorizes the PBC to decide the issue of a recount "pursuant to Section 236 of the Omnibus Election Code." Since it doubts such authenticity, it could not, without arbitrariness and abuse of discretion, order the inclusion of the "votes" of Ong and Lucero found in the doubtful "Comelec Copy" of the election returns in the municipal certificate of canvass. Second, it is an uncontroverted fact that an election was held in Precinct No. 7. None was held in Precinct No. 13 for reasons the parties fully knew. Pursuant to Section 6 of the Omnibus Election Code (B.P. Blg. 881), a special election may be held in Precinct No. 13 only if the failure of the election therein "would affect the result of the election." This "result of the election" means the net result of the election in the rest of the precincts in a given constituency, such that if the margin of a leading candidate over that of his closest rival in the latter precincts is less than the total number of votes in the precinct where there was failure of election, then such failure would certainly affect "the result of the election"; hence, a special election must be held. Consequently, the holding of a special election in Precinct No. 13 can only be determined after the votes in Precinct No. 7 shall have been included in the canvass by the Provincial Board of Canvassers. We may further state that the so-called "Comelec Copy" of the election returns of Precinct No. 7 can by no means be validly included in the municipal canvass. The summary of the evidence in the "preparation" of the election returns of Precinct No. 7, both in the challenged Resolution and in the separate Concurring and Dissenting Opinion of Commissioners Gorospe and Claravall, leaves no room for doubt that there was actually no counting of the votes in Precinct No. 7. Quoted in the challenged Resolution is a portion of the testimony of Sabina T. Jarito, Precinct Chairman of Precinct No. 7, which clearly shows that on questions by COMELEC Chairman Christian S. Monsod and Commissioner Vicente B. de Lima, the witness candidly admitted that the election returns were prepared at the "munisipyo" or municipal building and not at the polling place of Precinct No. 7 in barangay Camaya-an. 15 This "munisipyo" is located at the poblacion of Silvino Lobos. Under the law, the board of election inspectors shall prepare the election returns simultaneously with the counting of votes in the polling place. 16There is no evidence whatsoever that the COMELEC had, for valid reasons, authorized the transfer of venue of the counting of the votes of Precinct No. 7 from the polling place in barangay Camaya-an to the municipal building and that the counting did in fact take place at the latter. Although in the Concurring and Dissenting Opinion of Commissioners Gorospe and Claravall there is a reference to Exhibit "E," the Joint Affidavit of Sabina Jarito and Mevilyn Surio wherein they declare that after the voting the Board of Election Inspectors unanimously approved to transfer the counting of votes to the Municipal Building in the Poblacion of Silvino Lobos, which was allegedly concurred in by all the watchers of political parties and the candidates present, the alleged "counting" at the municipal building was denied by no less than the Municipal Election Officer of Silvino Lobos, Antonio Tepace, and the Municipal Treasurer thereof, Mr. Gabriel Basarte, in their affidavits marked as Exhibit "F" and Exhibit "G," respectively. 17 Since there was no counting of the votes of Precinct No. 7, no valid election returns could be made and any copy of election returns purporting to come therefrom is a fabrication. A recount thereof, which presupposes a prior count, would obviously be unwarranted. Only a count then of the votes of Precinct No. 13 would heretofore be in order. Sections 234, 235, and 236 of the Omnibus Election Code are thus still inapplicable. And, in the light of what we stated

before in relation to the holding of a special election, such a count of the votes of Precinct No. 7 must, perforce, precede the special election in Precinct No. 13. II. Ong's first grievance in G. R. No. 113509 is without merit. The order of the COMELEC for the correction of the manifest error in the municipal certificate of canvass of Las Navas was made pursuant to the declaration made by this Court in G. R. No. 105717 (Ong vs. COMELEC) 18 that: The correction of the certificate of canvass of Las Navas is likewise in order. Even though a pre-proclamation issue is involved, the correction of the manifest error is allowed under Sec. 15 of R. A. No. 7166. Since no motion for reconsideration was filed in that case, the decision therein became final and entry of judgment was made on 4 August 1993. Consequently, Ong cannot now re-litigate the issue of the correction of the certificate of canvass of Las Navas. III On the authority of the COMELEC to order the holding of a special election, Section 6 of the Omnibus Election Code provides: Sec. 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and if in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect. The first paragraph of Section 4 of R. A. No. 7166 likewise provides: Sec. 4. Postponement, Failure of Election and Special Elections. The postponement, declaration of failure of election and the calling of special elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code shall be decided by the Commission sitting en banc by a majority votes of its members. The causes for the declaration of a failure of election may occur before or after the casting of votes or on the day of the election. There are, therefore, two requisites for the holding of special elections under Section 6 of the Omnibus Election Code, viz., (1) that there is a failure of election, and (2) that such failure would affect the results of the election. The parties admit that the failure of the election in Precinct No. 13 was due to ballot-box snatching and do not dispute the finding of the COMELEC as to the necessity

and inevitability of the holding of a special election in said precinct, even if the result of Precinct No. 7 should be based on the questionable "Comelec Copy" of its election returns. The COMELEC held: Based on the adjudged correction of the votes in favor of petitioner Lucero in the Municipality of Las Navas, the results of the recount of votes (ballots) of Precinct No. 16 (Silvino Lobos), and the votes reflected in the available copy of the election returns for Precinct No. 7 (Silvino Lobos), it is safe to predict that when the special Provincial Board of Canvassers will reconvene to sum up the votes of the contending parties, the original lead of private respondent Ong of two hundred four (204) votes against petitioner Lucero 24,272 as against 24,068 will be reduced to either 175 or 173 depending on whether Lucero will be credited a low of 29 or a high of 31 votes as reflected in the election returns of Precinct No. 7. Without preempting the exact figures which only the special Provincial Board of Canvassers can correctly determine, undoubtedly it is inevitable that a special election will have to be held in Precinct No. 13 (Barangay Gusaran) of the Municipality of Silvino Lobos. ...
Given the established lead of private respondent Ong over petitioner Lucero, We answer in the affirmative. According to Comelec records, the number of registered voters in Precinct No. 13 istwo hundred thirteen (213). Since the lead of respondent Ong is less than the number of registered voters, the votes in that precinct could affect the existing result because of the possibility that petitioner Lucero might get a majority over Ong in that precinct and that majority might be more than the present lead of Ong. 19

On the basis of the additional votes credited so far to the parties, 20 the following computation is in order: to Ong's 24,272 votes will be added 2 more from Precinct No. 16, to make a total of 24,274, while to Lucero's 24,068 votes will be added 20 more from Las Navas and 43 from Precinct No. 16, for a total of 24,131. Ong's earlier lead will thus be reduced to 143, which is admittedly less than the 213 registered voters in Precinct No. 13. 21 The two requirements then for a special election under Section 6 of the Omnibus Election Code have indeed been met. In fixing the date of the special election, the COMELEC should see to it that: (1) it should be not later than thirty days after the cessation of the cause of the postponement or suspension of the election or the failure to elect, and (2) it should be reasonably close to the date of the election not held, suspended, or which resulted in failure to elect. The first involves questions of fact. The second must be determined in the light of the peculiar circumstances of a case. In the instant case, the delay was not attributable to the poor voters of Precinct No. 13 or to the rest of the electorate of the Second Legislative District of Northern Samar. The delay was, as stated in the opening paragraph of this ponencia, primarily caused by the legal skirmishes or maneuvers of the petitioners which muddled simple issues. The Court takes judicial notice of the fact that G. R. No. 113509 is the third case Ong has brought to this Court. 22 Considering then that the petitioners themselves must share the blame for the delay, and taking into account the fact that since the term of the office of the contested position is only three years, the holding of a special election in Precinct No. 13 within the

next few months may still be considered "reasonably close to the date of the election not held." Ong's postulation should then be rejected. In the course of the deliberations on these cases, the Court considered the possible application, by analogy, of Section 10, Article VII of the 1987 Constitution providing that no special election in the event of a vacancy in the Offices of the President and Vice President "shall be called if the vacancy occurs within eighteen months before the date of the next presidential election," and of the second paragraph of Section 4 of R. A. No. 7166 which provides: In case a permanent vacancy shall occur in the Senate or House of Representatives at least one (1) year before the expiration of the term, the Commission shall call and hold a special election to fill the vacancy not earlier than sixty (60) days nor longer than ninety (90) days after the occurrence of the vacancy. However, in case of such vacancy in the Senate, the special election shall be held simultaneously with the next succeeding regular election. A view was expressed that we should not hold the special election because the underlying philosophy for the prohibition to hold the special election if the vacancy occurred within a certain period before the next presidential election or the next regular election, as the case may be, is obviously the avoidance of the expense to be incurred in the holding of a special election when a regular election is, after all, less than a year away. The Court ultimately resolved that the aforesaid constitutional and statutory proscriptions are inapplicable to special elections which may be called under Section 6 of the Omnibus Election Code. First, the special election in the former is to fill permanent vacancies in the Office of the President, Vice President, and Members of Congress occurring after the election, while the special election under the latter is due to or by reason of a failure of election. Second, a special election under Section 6 would entail minimal costs because it is limited to only the precincts involved and to the candidates who, by the result of the election in a particular constituency, would be affected by the failure of election. On the other hand, the special election for the Offices of the President, Vice President, and Senators would be nation-wide, and that of a Representative, district-wide. Third, Section 6, when specifically applied to the instant case, presupposes that no candidate had been proclaimed and therefore the people of the Second Legislative District of Northern Samar would be unrepresented in the House of Representatives until the special election shall ultimately determine the winning candidate, such that if none is held, they would have no representation until the end of the term. under the aforesaid constitutional and statutory provisions, the elected officials have already served their constituencies for more than one-half of their terms of office. Fourth, if the law had found it fit to provide a specific and determinate time-frame for the holding of a special election under Section 6, then it could have easily done so in Section 4 of R. A. No. 7166. Another serious obstacle to Ong's proposition is that, considering the COMELEC's disposition of Precinct No. 7 in the challenged Resolution, he would then be declared and proclaimed the duly elected Representative of the Second Legislative District of Northern Samar despite the fact that as earlier observed, there was no counting of the votes of Precinct No. 7, and the results of the district elections for Representative would be affected by the failure of the election in Precinct No. 13. To accept the proposition is to allow a proclamation based on an incomplete canvass where the final result would have been affected by the uncanvassed result of Precinct No. 7 and by the failure of the election in Precinct No. 13 and to impose upon the people of the Second Legislative District of Northern Samar a Representative whose mandate is, at the very least, uncertain, and at the most, inexistent.

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered: I. DISMISSING, for lack of merit, the petition in G. R. No. 113509; and II. In G. R. No. 113107, DIRECTING the respondent Commission on Elections to: (1) Reconvene, in its main office of Manila, within five (5) days from notice hereof, the Special Board of Canvassers of the municipality of Silvino Lobos, Northern Samar, which shall then, as a special Board of Election Inspectors of Precinct No. 7 of said municipality, within forty-eight (48) hours from its reconvening, count the ballots of said Precinct No. 7, and deliver to the special Provincial Board of Canvassers of the said Province a copy of the election returns; (2) Reconvene, in its main office in Manila, within the same period as aforestated, the special Provincial Board of Canvassers of Northern Samar which shall then, within seventy-two (72) hours from its reconvening: (a) Include in the Municipal Certificate of Canvass of Silvino Lobos (1) the total number of votes for petitioner Wilmar P. Lucero and for petitioner Jose L. Ong, Jr., respectively, in Precinct No. 7 of Silvino Lobos as recorded in the election returns submitted by the aforementioned special Municipal Board of Canvassers, and (2) the forty-three (43) votes for petitioner Wilmar P. Lucero and the two (2) votes for petitioner Jose L. Ong, Jr. as reflected in the election returns of Precinct No. 16 (Barangay Tubgon) prepared, after a recount of the ballots, by the special Board of Canvassers; and after such inclusions to enter the new totals of the votes for the petitioners in the Certificate of Provincial Canvass; (b) Retabulate the total number of votes for Wilmar P. Lucero for the Municipality of Las Navas, Northern Samar, which shall be two thousand and five hundred thirty-seven (2,537) as reflected in the Statement of Votes (C.E. Form 20-A) prepared and submitted by the Municipal Board of Canvassers of Las Navas, and to enter the same in the Certificate of Provincial Canvass; (c) After the accomplishment of all the foregoing, to sum up anew in the Certificate of Provincial Canvass the canvassed municipal certificates of canvass of all the municipalities of the Second Legislative District of Northern Samar and if the same would establish that the difference in votes between petitioner Wilmar P. Lucero and petitioner Jose L. Ong, Jr. is less than two hundred and thirteen (213), hence the failure of the election in Precinct No. 13 would unavoidably and inevitably affect then the result of the election, to report to the Commission on Elections such fact and to furnish the latter with a certified photocopy of the Certificate of Provincial Canvass; (3) Within three (3) days after receipt of the aforesaid report from the special Provincial Board of Canvassers, to CALL a special election in Precinct No. 13 of Silvino Lobos, which shall be held not later than thirty (30) days from such call; a copy of the election returns of said special election shall forthwith be transmitted to

the Special Provincial Board of Canvassers of Northern Samar, which shall then enter the results thereof in its canvass and make a final summation of the results in the Certificate of Provincial Canvass, and thereafter, pursuant to the Omnibus Election Code, pertinent election laws and rules and resolutions of the Commission, proclaim the winning candidate for Representative of the Second Legislative District of Northern Samar. If for any reason whatsoever it would not be possible to immediately reconvene the Special Municipal Board of Canvassers of Silvino Lobos and the Special Provincial Board of Canvassers of Northern Samar, the COMELEC may create new ones. No pronouncements as to costs. SO ORDERED. Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Regalado, Romero, Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur. Bellosillo, J., is on leave.

Paras vs. COMELEC (G.R. No. 123169. November 4, 1996)

16APR
DANILO vs. COMMISSION ON ELECTIONS, respondent. Ponente: FRANCISCO FACTS: Petitioner was the incumbent Punong Barangay who won during the last regular barangay election. A petition for his recall as Punong Barangay was filed by the registered voters of the barangay. At least 29.30% of the registered voters signed the petition, well above the 25% requirement provided by law. Acting on the petition for recall, public respondent Commission on Elections (COMELEC) resolved to approve the petition and set recall election date. To prevent the holding of recall election, petitioner filed before the Regional Trial Court a petition for injunction which was later dismissed. Petitioner filed petition for certiorari with urgent prayer for injunction, insisting that the recall election is barred by the Sangguniang Kabataan (SK) election under Sec. 74(b) of Local Government Code (LGC) which states that no recall shall take place within one (1) year from the date of the officials assumption to office or one (1) year immediately preceding a regular local election. ISSUE: Whether or not the prohibition on Sec.74(b) of the LGC may refer to SK elections, where the recall election is for Barangay post. HELD: E. PARAS, petitioner,

NO. But petition was dismissed for having become moot and academic. RATIO: Recall election is potentially disruptive of the normal working of the local government unit necessitating additional expenses, hence the prohibition against the conduct of recall election one year immediately preceding the regular local election. The proscription is due to the proximity of the next regular election for the office of the local elective official concerned. The electorate could choose the officials replacement in the said election who certainly has a longer tenure in office than a successor elected through a recall election. It would, therefore, be more in keeping with the intent of the recall provision of the Code to construe regular local election as one referring to an election where the office held by the local elective official sought to be recalled will be contested and be filled by the electorate. By the time of judgment, recall was no longer possible because of the limitation stated under the same Section 74(b) now referred to as Barangay Elections. CONCURRING OPINION: DAVIDE: A regular election, whether national or local, can only refer to an election participated in by those who possess the right of suffrage, are not otherwise disqualified by law, and who are registered voters. One of the requirements for the exercise of suffrage under Section 1, Article V of the Constitution is that the person must be at least 18 years of age, and one requisite before he can vote is that he be a registered voter pursuant to the rules on registration prescribed in the Omnibus Election Code (Section 113-118). Under the law, the SK includes the youth with ages ranging from 15 to 21 (Sec. 424, Local Government Code of 1991). Accordingly, they include many who are not qualified to vote in a regular election, viz., those from ages 15 to less than 18. In no manner then may SK elections be considered a regular election (whether national or local).

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 123169 November 4, 1996 DANILO E. PARAS, petitioner, vs. COMMISSION ON ELECTIONS, respondent. RESOLUTION

FRANCISCO, J.: Petitioner Danilo E. Paras is the incumbent Punong Barangay of Pula, Cabanatuan City who won during the last regular barangay election in 1994. A petition for his recall as Punong Barangay was filed by the registered voters of the barangay. Acting on the petition for recall, public respondent Commission on Elections (COMELEC) resolved to approve the petition, scheduled the petition signing on October 14, 1995, and set the recall election on November 13, 1995. 1 At least 29.30% of the registered voters signed the petition, well above the 25% requirement provided by law. The COMELEC, however, deferred the recall election in view of petitioner's opposition. On December 6, 1995, the COMELEC set anew the recall election, this time on December 16, 1995. To prevent the holding of the recall election, petitioner filed before the Regional Trial Court of Cabanatuan City a petition for injunction, docketed as SP Civil Action No. 2254-AF, with the trial court issuing a temporary restraining order. After conducting a summary hearing, the trial court lifted the restraining order, dismissed the petition and required petitioner and his counsel to explain why they should not be cited for contempt for misrepresenting that the barangay recall election was without COMELEC approval. 2 In a resolution dated January 5, 1996, the COMELEC, for the third time, re-scheduled the recall election an January 13, 1996; hence, the instant petition for certiorari with urgent prayer for injunction. On January 12, 1996, the Court issued a temporary restraining order and required the Office of the Solicitor General, in behalf of public respondent, to comment on the petition. In view of the Office of the Solicitor General's manifestation maintaining an opinion adverse to that of the COMELEC, the latter through its law department filed the required comment. Petitioner thereafter filed a reply. 3 Petitioner's argument is simple and to the point. Citing Section 74 (b) of Republic Act No. 7160, otherwise known as the Local Government Code, which states that "no recall shall take place within one (1) year from the date of the official's assumption to office or one (1) year immediately preceding a regular local election", petitioner insists that the scheduled January 13, 1996 recall election is now barred as the Sangguniang Kabataan (SK) election was set by Republic Act No. 7808 on the first Monday of May 1996, and every three years thereafter. In support thereof, petitioner cites Associated Labor Union v. Letrondo-Montejo, 237 SCRA 621, where the Court considered the SK election as a regular local election. Petitioner maintains that as the SK election is a regular local election, hence no recall election can be had for barely four months separate the SK election from the recall election. We do not agree. The subject provision of the Local Government Code provides: Sec. 74. Limitations on Recall. (a) Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence. (b) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1) year immediately preceding a regular local election. [Emphasis added] It is a rule in statutory construction that every part of the statute must be interpreted with reference to the context,i.e., that every part of the statute must be considered together with the other parts, and kept subservient to the general intent of the whole enactment. 4 The evident intent of Section 74 is to subject an elective local official to recall election once during his term of office. Paragraph (b)

construed together with paragraph (a) merely designates the period when such elective local official may be subject of a recall election, that is, during the second year of his term of office. Thus, subscribing to petitioner's interpretation of the phrase regular local election to include the SK election will unduly circumscribe the novel provision of the Local Government Code on recall, a mode of removal of public officers by initiation of the people before the end of his term. And if the SK election which is set by R.A No. 7808 to be held every three years from May 1996 were to be deemed within the purview of the phrase "regular local election", as erroneously insisted by petitioner, then no recall election can be conducted rendering inutile the recall provision of the Local Government Code. In the interpretation of a statute, the Court should start with the assumption that the legislature intended to enact an effective law, and the legislature is not presumed to have done a vain thing in the enactment of a statute. 5 An interpretation should, if possible, 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, inoperative or nugatory. 6 It is likewise a basic precept in statutory construction that a statute should be interpreted in harmony with the Constitution. 7 Thus, the interpretation of Section 74 of the Local Government Code, specifically paragraph (b) thereof, should not be in conflict with the Constitutional mandate of Section 3 of Article X of the Constitution to "enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanism of recall, initiative, and referendum . . . ." Moreover, petitioner's too literal interpretation of the law leads to absurdity which we cannot countenance. Thus, in a case, the Court made the following admonition:
We admonish against a too-literal reading of the law as this is apt to constrict rather than fulfill its purpose and defeat the intention of its authors. That intention is usually found not in "the letter that killeth but in the spirit that vivifieth". . . 8

The spirit, rather than the letter of a law determines its construction; hence, a statute, as in this case, must be read according to its spirit and intent. Finally, recall election is potentially disruptive of the normal working of the local government unit necessitating additional expenses, hence the prohibition against the conduct of recall election one year immediately preceding the regular local election. The proscription is due to the proximity of the next regular election for the office of the local elective official concerned. The electorate could choose the official's replacement in the said election who certainly has a longer tenure in office than a successor elected through a recall election. It would, therefore, be more in keeping with the intent of the recall provision of the Code to construe regular local election as one referring to an election where the office held by the local elective official sought to be recalled will be contested and be filled by the electorate. Nevertheless, recall at this time is no longer possible because of the limitation stated under Section 74 (b) of the Code considering that the next regular election involving the barangay office concerned is barely seven (7) months away, the same having been scheduled on May 1997. 9 ACCORDINGLY, the petition is hereby dismissed for having become moot and academic. The temporary restraining order issued by the Court on January 12, 1996, enjoining the recall election should be as it is hereby made permanent. SO ORDERED.

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

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 113107 July 20, 1994 WILMAR P. LUCERO, petitioner, vs. COMMISSION ON ELECTIONS and JOSE L. ONG, JR., respondents.

G.R. No. 113509 July 20, 1994 JOSE L. ONG, JR., petitioner, vs. COMMISSION ON ELECTIONS and WILMAR P. LUCERO, respondents. Cesar A. Sevilla & Associates for Wilmar Lucero. Napolean G. Rama and Remollo Melocoton & Associates for Jose L. Ong, Jr.

DAVIDE, JR., J.: After the issues had been joined in these consolidated cases, the Court resolved to give due course to the petitions therein and to decide the cases on the merits. It can no longer allow the parties to delay these cases. Their legal skirmishes, which have unduly magnified uncomplicated issues, have effectively deprived the people of the Second Legislative District of Northern Samar of representation in the House of Representatives for more than two years now. These cases are sequels to G. R. No. 105717, entitled "Jose L. Ong, Jr. vs. Commission on Elections and Wilmar P. Lucero," which we finally resolved on 22 April 1993. 1 The petitioners were two of the five candidates 2 for the Second Legislative District of Northern Samar in the synchronized national and local elections held on 11 May 1992.

The canvass of the Provincial Board of Canvassers (PBC) of Northern Samar credited Jose L. Ong, Jr. with 24,272 votes and Wilmar P. Lucero with 24,068 votes, or a lead by Ong of 204 votes. However, this tally did not include the results of Precinct No. 7 of the municipality of Silvino Lobos, where the submitted election returns had not been canvassed because they were illegible; of Precinct No. 13 of Silvino Lobos, where the ballot boxes were snatched and no election was held; and of Precinct No. 16, also of Silvino Lobos, where all copies of the election returns were missing. On 22 May 1992, Lucero asked the Commission on Elections (COMELEC), in SPA No. 92-282, to: 1. Forthwith order Respondent Provincial Board of Canvassers for Northern Samar to suspend the proclamation of Private Respondent Jose L. Ong, Jr.; 2. Direct Respondent Provincial Board of Canvassers for Northern Samar to correct the Certificate of Canvass (CEF 20) for Las Navas and, accordingly, to correct the total votes so far counted by it for Petitioner from 24,068 to 24,088, thus reducing the margin it found in favor of Private Respondent Jose L. Ong, Jr. from 204 to 184 votes only; 3. Order a special election in Precinct 13, Barangay Gusaran, Silvino Lobos, pursuant to Section 6 of the Omnibus Election Code; 4. Order a recount of the votes for Representative of the Second District of Northern Samar in Precinct 16, Barangay Tubgon, and Precinct 7, Barangay Camayaan, both of Silvino Lobos, pursuant to Section 234 of the Omnibus Election Code;
5. Order a recount of the votes for Representative in the 52 precincts herein above enumerated in order to correct "manifest errors" pursuant to Section 15 of Republic Act 7166 and for this purpose order the impounding and safekeeping of the ballot boxes of all said precincts in order to preserve the integrity of the ballots and other election paraphernalia contained therein. 3

On 2 June 1992, the COMELEC, acting on Lucero's urgent manifestation, directed the PBC to desist from reconvening until further orders. On 8 June 1992, Ong moved to lift the suspension of the proceedings by the PBC, which Lucero opposed on 10 June 1992 on the ground that the canvass could not be completed even if the PBC were to reconvene because no election was held in Precinct No. 13 (Barangay Gusaran) of Silvino Lobos and there was no canvassing of the votes in Precinct No. 7 (Barangay Camayaan) and Precinct No. 16 (Barangay Tubgon) both of Silvino Lobos. On 13 June 1993, the COMELEC en banc promulgated a resolution, the dispositive portion of which reads: Accordingly, the Commission hereby orders the Provincial Election Supervisor of Northern Samar to bring to the Commission within three (3) days from receipt hereof the ballot boxes from Precinct 7 and 16 of Silvino Lobos, to be escorted by representatives from the petitioner and the respondents as well as other parties who have an interest to protect, and to notify said parties hereof. The Municipal Treasurer of said town is directed to turn over custody of said ballot boxes to the Provincial Election Supervisor, and the keys thereof shall likewise be turned over by the appropriate officials in custody thereof to the PES, who shall in turn give one key for each ballot

box to the duly authorized representatives of the petitioner and the respondent. The Commission likewise orders the Election Registrar of Silvino Lobos, Northern Samar, and the Chairman and members of the Boards of Election Inspectors of Precincts 7 and 16 of said municipality to appear before the Commission within three (3) days from receipt hereof. Below the signatures of the Chairman and the six Commissioners, however, Chairman Christian S. Monsod and Commissioners Haydee B. Yorac, Dario C. Rama and Regalado E. Maambong directed as follows:
We vote in favor of this resolution except that portion which denied the correction of the Certificate of Canvass for Las Navas. Correction of the Certificate of Canvass for Las Navas is in order in view of the testimony of the election registrar of Las Navas to the effect that Wilmar Lucero garnered 2,537 votes for Las Navas and not 2,517. Petition for correction was duly filed by Lucero with the Provincial Board of Canvassers of Northern Samar on May 19, 1992. The Provincial Board of Canvassers of Northern Samar is therefore directed to retabulate the total number of votes for Las Navas for Lucero and enter the same in the Provincial Certificate of Canvass. 4

On 15 June 1992, Lucero filed an urgent motion to constitute a Special Board of Election Inspectors (SBEI) to count the votes of Precincts Nos. 7 and 16 of Silvino Lobos. 5 On 20 June 1992, Ong, in a special civil action for certiorari filed with this Court and subsequently docketed as G. R. No. 105717, questioned the order for the recount of ballots in Precincts No. 7 and 16. Despite the pendency of this petition, the COMELEC ordered the recount of the ballots in Precinct No. 16 by a SBEI which recorded 43 votes for Lucero and 2 votes for Ong. 6 On 25 June 1992, this Court issued in G. R. No. 105717 a temporary restraining order against the implementation by the COMELEC of its Order of 2 June 1992 and its Resolution of 13 June 1992. On 23 December 1992, this Court promulgated its decision in G. R. No. 105717, 7 the dispositive portion of which reads: WHEREFORE, the petition for certiorari is GRANTED and a writ of preliminary injunction is hereby ISSUED directing the COMELEC to CEASE and DESIST from implementing its order of June 2, 1992, and its resolution dated June 13, 1992, and the same are hereby declared NULLIFIED. Consequently, the election returns based on the recounted ballots from Precinct 16 are hereby DISCARDED and in lieu thereof, authentic returns from said precinct should instead be made a basis for the canvassing. The Provincial Board of Canvassers of Northern Samar is hereby directed to PROCEED WITH DISPATCH in the canvassing of ballots until completed and to PROCLAIM the duly elected winner of the congressional seat for the Second District of Northern Samar.
This decision is immediately executory. 8

Acting on the motions for reconsideration and clarification respectively filed by the COMELEC and Lucero, this Court, on 22 April 1993, modified 9 its aforesaid disposition in G. R. No. 105717 as follows; IN VIEW OF ALL THE FOREGOING, the dispositive portion of the December 23, 1992 Decision is hereby MODIFIED to read as follows; "WHEREFORE, THE PETITION IS GRANTED. THE JUNE 2, 1992 ORDER OF RESPONDENT COMMISSION ON ELECTIONS IN SPA NO. 92-282 IS HEREBY ANNULLED AND SET ASIDE. ITS JUNE 13, 1992 RESOLUTION THEREIN IS LIKEWISE ANNULLED AND SET ASIDE INSOFAR AS IT AFFECTS PRECINCT NO. 7 OF SILVINO LOBOS, THE RECOUNT OF VOTES IN THE 52 OTHER PRECINCTS AND THE CORRECTION OF THE CERTIFICATE OF CANVASS OF LAS NAVAS, BUT IS AFFIRMED WITH RESPECT TO THE ISSUE OF HOLDING A SPECIAL ELECTION IN PRECINCT NO. 13 AND THE RECOUNT OF THE BALLOTS IN PRECINCT NO. 16. THE RESPONDENT COMMISSION ON ELECTIONS IS HEREBY DIRECTED TO ASSIGN SPA NO. 92-282 TO ANY OF ITS DIVISIONS PURSUANT TO ITS RULE ON RAFFLE OF CASES FOR IT TO RESOLVE THE PRE-PROCLAMATION ISSUES THEREIN, TAKING INTO ACCOUNT THE ABOVE PRONOUNCEMENTS AND THE EXCEPTIONS PROVIDED FOR IN SECTION 15 OF R. A. NO. 7166. WHENEVER WARRANTED BY THE CIRCUMSTANCES, THE COMMISSION MAY (A) CALL A SPECIAL ELECTION IN PRECINCT NO. 13 OF SILVINO LOBOS, NORTHERN SAMAR, AND (B) RECONVENE THE SPECIAL MUNICIPAL BOARD OF CANVASSERS AND THE SPECIAL PROVINCIAL BOARD OF CANVASSERS IT HAD EARLIER CONSTITUTED OR CREATE NEW ONES.
ALL THE FOREGOING SHOULD BE DONE WITH PURPOSEFUL DISPATCH TO THE END THAT THE WINNING CANDIDATE FOR CONGRESSMAN REPRESENTING THE SECOND CONGRESSIONAL DISTRICT OF NORTHERN SAMAR MAY BE PROCLAIMED AS SOON AS POSSIBLE." 10

As to the certificate of canvass of the municipality of Las Navas, this Court explicitly stated;
The correction of the certificate of canvass of Las Navas is likewise in order. Even though a pre-proclamation issue is involved, the correction of the manifest error is allowed under Section 15 of R. A. No. 7166. 11

Conformably with the aforesaid modified judgment in G. R. No. 105717, SPA No. 92-282 was raffled to the First Division of the COMELEC which conducted hearings thereon and received the arguments and evidence of both parties who then submitted their respective memoranda on 25 June 1994. However, during the consultations on the case by the Members of the First Division, the concurrence of at least two of them could not be obtained; accordingly, pursuant to the COMELEC

Rules, the case was elevated for proper disposition to the COMELEC en banc to which the parties submitted their respective memoranda on 19 November 1993. 12 On 7 January 1994, the COMELEC en banc promulgated a resolution 13 whose dispositive portion reads as follows: 1. To direct the special Provincial Board of Canvassers for Northern Samar (a) to include in the municipal certificate of canvass of Silvino Lobos the forty-three (43) votes of petitioner Lucero and the two (2) votes of private respondent Ong as reflected in the election returns of Precinct No. 16 (Barangay Tubgon) prepared by the special Board of Election Inspectors constituted by the Commission to recount the votes (ballots) in said precinct, as canvassed by the special Municipal Board of Canvassers for Silvino Lobos; (b) to include in the municipal certificate of canvass of Silvino Lobos, the sixty-one (61) votes of private respondent Ong and 29, 30, or 31 votes of petitioner Lucero as reflected in the election returns (MBC Copy submitted as "Comelec Copy") of Precinct No. 7 (Barangay Camaya-an), as canvassed by the special Municipal Board of Canvassers for Silvino Lobos; (c) to retabulate the total number of votes of petitioner Lucero for the Municipality of Las Navas and to enter in the provincial certificate of canvass the correct total which is two thousand five hundred thirty-seven (2,537) as reflected in the Statement of Votes (C. E. Form 20-A) prepared and submitted by the Municipal Board of Canvassers for Las Navas; and (d) to submit to the Commission a computation of the votes of the contending parties including therein all the votes of petitioner Lucero (with alternative totals) and private respondent Ong, in Precinct Nos. 7 and 16 of Silvino Lobos and the total votes of petitioner Lucero in the Municipality of Las Navas as corrected. However, under no circumstances should the Board proclaim any winning candidate until instructed to do so by the Commission; 2. To issue an Order calling for a special election in the last remaining Precinct No. 13 (Barangay Gusaran) of the Municipality of Silvino Lobos if justified by the result of the canvass by the Provincial Board of Canvassers for Northern Samar, and to notify the parties of the schedule of election activities for that precinct; and 3. After including in the tabulation the results of the special election of Precinct No. 13, to decide the issue of the recount of the votes (ballots) of Precinct No. 7 of Silvino Lobos, pursuant to Section 236 of the Omnibus Election Code, to resolve the discrepancy of the votes of petitioner Lucero in the same return, if such discrepancy of votes of the candidates concerned would affect the over-all results of the election after the totality of the votes of the contending parties shall have been determined. Both Lucero and Ong have come to this Court by way of separate special civil actions for certiorari to challenge the Resolution. In G. R. No. 113107, Lucero maintains that (1) the count of the ballots in Precinct No. 7 of Silvino Lobos must be unconditional because the election returns therefrom are invalid; and (2) his chances in the special election in Precinct No. 13 of Silvino Lobos would be spoiled if the returns for Precinct No. 7 were to be included beforehand in the canvass. In G. R. No. 113509, Ong questions (1) the authority of the COMELEC to order the correction of the alleged manifest error in the Municipal Certificate of Canvass of Las Navas despite the absence of any appeal; and (2) the authority of the COMELEC to call for a special election in Precinct No. 13 almost two years after the regular election.

As we see it, the core issues in these consolidated cases are: (1) Whether there should first be a count of the ballots of Precinct No. 7 of Silvino Lobos before determining the necessity of holding a special election in Precinct No. 13 of Silvino Lobos: (2) Whether the COMELEC acted with grave abuse of discretion in ordering the correction of the alleged manifest error in the Municipal Certificate of Canvass of Las Navas; and (3) Whether the COMELEC acted with grave abuse of discretion in calling for a special election in Precinct No. 13 after almost two (2) years, or more specifically after one (1) year and ten (10) months, following the day of the synchronized elections. We shall take up these issues seriatim. I. The answer to the first issue is in the affirmative. We find the COMELEC's disposition regarding Precinct No. 7 to be unclear. In the first paragraph of the dispositive portion of the challenged resolution, it directs the Provincial Board of Canvassers "to include in the municipal certificate of canvas of Silvino Lobos the sixty-one (61) votes of private respondent Ong and 29, 30, or 31 votes of petitioner Lucero as reflected in the election returns (MBC copy submitted as "COMELEC Copy") of Precinct No. 7 (Barangay Camaya-an), as canvassed by the special Municipal Board of Canvassers for Silvino Lobos," and "to submit to the Commission a computation of the votes of the contending parties including therein all the votes of petitioner Lucero (with alternative totals) and private respondent Ong, in Precinct Nos. 7 and 16 of Silvino Lobos. . . ." On the other hand, in the fourth paragraph of the said dispositive portion, it orders the Provincial Board of Canvassers, after "including in the tabulation the results of the special election of Precinct No. 13," to "decide the issue of the recount of the votes (ballots) of Precinct No. 7 of Silvino Lobos, pursuant to Section 236 of the Omnibus Election Code [and] to resolve the discrepancy of the votes of petitioner Lucero in the same return, if such discrepancy of votes of the candidate concerned would affect the over-all results of the election after the totality of the votes of the contending parties shall have been determined." Obviously, instead of ordering an outright recount of the ballots of Precinct No. 7, the COMELEC would first give full faith and credit to the questioned election returns thereof, which it describes as the "Comelec Copy," and, accordingly, direct the PBC to include in the municipal certificate of canvass of Silvino Lobos the 61 votes for Ong and the uncertain votes for Lucero 29, 30, or 31. The recount would only be made if after a special election in Precinct No. 13 shall have been held, it shall be determined that such a recount would be necessary. We fail to grasp the logic of the proposition. First, it is clear to us that the COMELEC, which has in its possession the so-called "Comelec Copy" of the questioned election returns of Precinct No. 7 and heard the witnesses who testified thereon, doubts the authenticity of the so-called "Comelec Copy" of the election returns of Precinct No. 7;14 hence, it authorizes the PBC to decide the issue of a recount "pursuant to Section 236 of the Omnibus Election Code." Since it doubts such authenticity, it

could not, without arbitrariness and abuse of discretion, order the inclusion of the "votes" of Ong and Lucero found in the doubtful "Comelec Copy" of the election returns in the municipal certificate of canvass. Second, it is an uncontroverted fact that an election was held in Precinct No. 7. None was held in Precinct No. 13 for reasons the parties fully knew. Pursuant to Section 6 of the Omnibus Election Code (B.P. Blg. 881), a special election may be held in Precinct No. 13 only if the failure of the election therein "would affect the result of the election." This "result of the election" means the net result of the election in the rest of the precincts in a given constituency, such that if the margin of a leading candidate over that of his closest rival in the latter precincts is less than the total number of votes in the precinct where there was failure of election, then such failure would certainly affect "the result of the election"; hence, a special election must be held. Consequently, the holding of a special election in Precinct No. 13 can only be determined after the votes in Precinct No. 7 shall have been included in the canvass by the Provincial Board of Canvassers. We may further state that the so-called "Comelec Copy" of the election returns of Precinct No. 7 can by no means be validly included in the municipal canvass. The summary of the evidence in the "preparation" of the election returns of Precinct No. 7, both in the challenged Resolution and in the separate Concurring and Dissenting Opinion of Commissioners Gorospe and Claravall, leaves no room for doubt that there was actually no counting of the votes in Precinct No. 7. Quoted in the challenged Resolution is a portion of the testimony of Sabina T. Jarito, Precinct Chairman of Precinct No. 7, which clearly shows that on questions by COMELEC Chairman Christian S. Monsod and Commissioner Vicente B. de Lima, the witness candidly admitted that the election returns were prepared at the "munisipyo" or municipal building and not at the polling place of Precinct No. 7 in barangay Camaya-an. 15 This "munisipyo" is located at the poblacion of Silvino Lobos. Under the law, the board of election inspectors shall prepare the election returns simultaneously with the counting of votes in the polling place. 16There is no evidence whatsoever that the COMELEC had, for valid reasons, authorized the transfer of venue of the counting of the votes of Precinct No. 7 from the polling place in barangay Camaya-an to the municipal building and that the counting did in fact take place at the latter. Although in the Concurring and Dissenting Opinion of Commissioners Gorospe and Claravall there is a reference to Exhibit "E," the Joint Affidavit of Sabina Jarito and Mevilyn Surio wherein they declare that after the voting the Board of Election Inspectors unanimously approved to transfer the counting of votes to the Municipal Building in the Poblacion of Silvino Lobos, which was allegedly concurred in by all the watchers of political parties and the candidates present, the alleged "counting" at the municipal building was denied by no less than the Municipal Election Officer of Silvino Lobos, Antonio Tepace, and the Municipal Treasurer thereof, Mr. Gabriel Basarte, in their affidavits marked as Exhibit "F" and Exhibit "G," respectively. 17 Since there was no counting of the votes of Precinct No. 7, no valid election returns could be made and any copy of election returns purporting to come therefrom is a fabrication. A recount thereof, which presupposes a prior count, would obviously be unwarranted. Only a count then of the votes of Precinct No. 13 would heretofore be in order. Sections 234, 235, and 236 of the Omnibus Election Code are thus still inapplicable. And, in the light of what we stated before in relation to the holding of a special election, such a count of the votes of Precinct No. 7 must, perforce, precede the special election in Precinct No. 13. II. Ong's first grievance in G. R. No. 113509 is without merit.

The order of the COMELEC for the correction of the manifest error in the municipal certificate of canvass of Las Navas was made pursuant to the declaration made by this Court in G. R. No. 105717 (Ong vs. COMELEC) 18 that: The correction of the certificate of canvass of Las Navas is likewise in order. Even though a pre-proclamation issue is involved, the correction of the manifest error is allowed under Sec. 15 of R. A. No. 7166. Since no motion for reconsideration was filed in that case, the decision therein became final and entry of judgment was made on 4 August 1993. Consequently, Ong cannot now re-litigate the issue of the correction of the certificate of canvass of Las Navas. III On the authority of the COMELEC to order the holding of a special election, Section 6 of the Omnibus Election Code provides: Sec. 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and if in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect. The first paragraph of Section 4 of R. A. No. 7166 likewise provides: Sec. 4. Postponement, Failure of Election and Special Elections. The postponement, declaration of failure of election and the calling of special elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code shall be decided by the Commission sitting en banc by a majority votes of its members. The causes for the declaration of a failure of election may occur before or after the casting of votes or on the day of the election. There are, therefore, two requisites for the holding of special elections under Section 6 of the Omnibus Election Code, viz., (1) that there is a failure of election, and (2) that such failure would affect the results of the election. The parties admit that the failure of the election in Precinct No. 13 was due to ballot-box snatching and do not dispute the finding of the COMELEC as to the necessity and inevitability of the holding of a special election in said precinct, even if the result of Precinct No. 7 should be based on the questionable "Comelec Copy" of its election returns. The COMELEC held: Based on the adjudged correction of the votes in favor of petitioner Lucero in the Municipality of Las Navas, the results of the recount of votes (ballots) of Precinct No. 16 (Silvino Lobos), and the votes reflected in the available copy of the election returns for Precinct No. 7 (Silvino Lobos), it is safe to predict that when the special Provincial

Board of Canvassers will reconvene to sum up the votes of the contending parties, the original lead of private respondent Ong of two hundred four (204) votes against petitioner Lucero 24,272 as against 24,068 will be reduced to either 175 or 173 depending on whether Lucero will be credited a low of 29 or a high of 31 votes as reflected in the election returns of Precinct No. 7. Without preempting the exact figures which only the special Provincial Board of Canvassers can correctly determine, undoubtedly it is inevitable that a special election will have to be held in Precinct No. 13 (Barangay Gusaran) of the Municipality of Silvino Lobos. ...
Given the established lead of private respondent Ong over petitioner Lucero, We answer in the affirmative. According to Comelec records, the number of registered voters in Precinct No. 13 istwo hundred thirteen (213). Since the lead of respondent Ong is less than the number of registered voters, the votes in that precinct could affect the existing result because of the possibility that petitioner Lucero might get a majority over Ong in that precinct and that majority might be more than the present lead of Ong. 19

On the basis of the additional votes credited so far to the parties, 20 the following computation is in order: to Ong's 24,272 votes will be added 2 more from Precinct No. 16, to make a total of 24,274, while to Lucero's 24,068 votes will be added 20 more from Las Navas and 43 from Precinct No. 16, for a total of 24,131. Ong's earlier lead will thus be reduced to 143, which is admittedly less than the 213 registered voters in Precinct No. 13. 21 The two requirements then for a special election under Section 6 of the Omnibus Election Code have indeed been met. In fixing the date of the special election, the COMELEC should see to it that: (1) it should be not later than thirty days after the cessation of the cause of the postponement or suspension of the election or the failure to elect, and (2) it should be reasonably close to the date of the election not held, suspended, or which resulted in failure to elect. The first involves questions of fact. The second must be determined in the light of the peculiar circumstances of a case. In the instant case, the delay was not attributable to the poor voters of Precinct No. 13 or to the rest of the electorate of the Second Legislative District of Northern Samar. The delay was, as stated in the opening paragraph of this ponencia, primarily caused by the legal skirmishes or maneuvers of the petitioners which muddled simple issues. The Court takes judicial notice of the fact that G. R. No. 113509 is the third case Ong has brought to this Court. 22 Considering then that the petitioners themselves must share the blame for the delay, and taking into account the fact that since the term of the office of the contested position is only three years, the holding of a special election in Precinct No. 13 within the next few months may still be considered "reasonably close to the date of the election not held." Ong's postulation should then be rejected. In the course of the deliberations on these cases, the Court considered the possible application, by analogy, of Section 10, Article VII of the 1987 Constitution providing that no special election in the event of a vacancy in the Offices of the President and Vice President "shall be called if the vacancy occurs within eighteen months before the date of the next presidential election," and of the second paragraph of Section 4 of R. A. No. 7166 which provides:

In case a permanent vacancy shall occur in the Senate or House of Representatives at least one (1) year before the expiration of the term, the Commission shall call and hold a special election to fill the vacancy not earlier than sixty (60) days nor longer than ninety (90) days after the occurrence of the vacancy. However, in case of such vacancy in the Senate, the special election shall be held simultaneously with the next succeeding regular election. A view was expressed that we should not hold the special election because the underlying philosophy for the prohibition to hold the special election if the vacancy occurred within a certain period before the next presidential election or the next regular election, as the case may be, is obviously the avoidance of the expense to be incurred in the holding of a special election when a regular election is, after all, less than a year away. The Court ultimately resolved that the aforesaid constitutional and statutory proscriptions are inapplicable to special elections which may be called under Section 6 of the Omnibus Election Code. First, the special election in the former is to fill permanent vacancies in the Office of the President, Vice President, and Members of Congress occurring after the election, while the special election under the latter is due to or by reason of a failure of election. Second, a special election under Section 6 would entail minimal costs because it is limited to only the precincts involved and to the candidates who, by the result of the election in a particular constituency, would be affected by the failure of election. On the other hand, the special election for the Offices of the President, Vice President, and Senators would be nation-wide, and that of a Representative, district-wide. Third, Section 6, when specifically applied to the instant case, presupposes that no candidate had been proclaimed and therefore the people of the Second Legislative District of Northern Samar would be unrepresented in the House of Representatives until the special election shall ultimately determine the winning candidate, such that if none is held, they would have no representation until the end of the term. under the aforesaid constitutional and statutory provisions, the elected officials have already served their constituencies for more than one-half of their terms of office. Fourth, if the law had found it fit to provide a specific and determinate time-frame for the holding of a special election under Section 6, then it could have easily done so in Section 4 of R. A. No. 7166. Another serious obstacle to Ong's proposition is that, considering the COMELEC's disposition of Precinct No. 7 in the challenged Resolution, he would then be declared and proclaimed the duly elected Representative of the Second Legislative District of Northern Samar despite the fact that as earlier observed, there was no counting of the votes of Precinct No. 7, and the results of the district elections for Representative would be affected by the failure of the election in Precinct No. 13. To accept the proposition is to allow a proclamation based on an incomplete canvass where the final result would have been affected by the uncanvassed result of Precinct No. 7 and by the failure of the election in Precinct No. 13 and to impose upon the people of the Second Legislative District of Northern Samar a Representative whose mandate is, at the very least, uncertain, and at the most, inexistent. IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered: I. DISMISSING, for lack of merit, the petition in G. R. No. 113509; and II. In G. R. No. 113107, DIRECTING the respondent Commission on Elections to: (1) Reconvene, in its main office of Manila, within five (5) days from notice hereof, the Special Board of Canvassers of the municipality of Silvino Lobos, Northern Samar, which shall then, as a special Board of Election Inspectors of Precinct No. 7

of said municipality, within forty-eight (48) hours from its reconvening, count the ballots of said Precinct No. 7, and deliver to the special Provincial Board of Canvassers of the said Province a copy of the election returns; (2) Reconvene, in its main office in Manila, within the same period as aforestated, the special Provincial Board of Canvassers of Northern Samar which shall then, within seventy-two (72) hours from its reconvening: (a) Include in the Municipal Certificate of Canvass of Silvino Lobos (1) the total number of votes for petitioner Wilmar P. Lucero and for petitioner Jose L. Ong, Jr., respectively, in Precinct No. 7 of Silvino Lobos as recorded in the election returns submitted by the aforementioned special Municipal Board of Canvassers, and (2) the forty-three (43) votes for petitioner Wilmar P. Lucero and the two (2) votes for petitioner Jose L. Ong, Jr. as reflected in the election returns of Precinct No. 16 (Barangay Tubgon) prepared, after a recount of the ballots, by the special Board of Canvassers; and after such inclusions to enter the new totals of the votes for the petitioners in the Certificate of Provincial Canvass; (b) Retabulate the total number of votes for Wilmar P. Lucero for the Municipality of Las Navas, Northern Samar, which shall be two thousand and five hundred thirty-seven (2,537) as reflected in the Statement of Votes (C.E. Form 20-A) prepared and submitted by the Municipal Board of Canvassers of Las Navas, and to enter the same in the Certificate of Provincial Canvass; (c) After the accomplishment of all the foregoing, to sum up anew in the Certificate of Provincial Canvass the canvassed municipal certificates of canvass of all the municipalities of the Second Legislative District of Northern Samar and if the same would establish that the difference in votes between petitioner Wilmar P. Lucero and petitioner Jose L. Ong, Jr. is less than two hundred and thirteen (213), hence the failure of the election in Precinct No. 13 would unavoidably and inevitably affect then the result of the election, to report to the Commission on Elections such fact and to furnish the latter with a certified photocopy of the Certificate of Provincial Canvass; (3) Within three (3) days after receipt of the aforesaid report from the special Provincial Board of Canvassers, to CALL a special election in Precinct No. 13 of Silvino Lobos, which shall be held not later than thirty (30) days from such call; a copy of the election returns of said special election shall forthwith be transmitted to the Special Provincial Board of Canvassers of Northern Samar, which shall then enter the results thereof in its canvass and make a final summation of the results in the Certificate of Provincial Canvass, and thereafter, pursuant to the Omnibus Election Code, pertinent election laws and rules and resolutions of the Commission, proclaim the winning candidate for Representative of the Second Legislative District of Northern Samar.

If for any reason whatsoever it would not be possible to immediately reconvene the Special Municipal Board of Canvassers of Silvino Lobos and the Special Provincial Board of Canvassers of Northern Samar, the COMELEC may create new ones. No pronouncements as to costs. SO ORDERED.

EN BANC

[G.R. No. 161265. February 24, 2004]

LABAN NG DEMOKRATIKONG PILIPINO, represented by its Chairman EDGARDO J. ANGARA VS. THE COMMISION ON ELECTIONS and AGAPITO A. AQUINO DECISION
TINGA, J.:

The Bible tells the story of how two women came to King Solomon to decide who among them is the babys true mother. King Solomon, in his legendary wisdom, awarded the baby to the woman who gave up her claim after he threatened to split the baby into two. It is fortunate that the two women did not ask the Commission on Elections (COMELEC) to decide the babys fate; otherwise, it would have cut the baby in half. For that is what the COMELEC exactly did in this case. On December 8, 2003, the General Counsel of the Laban ng Demokratikong Pilipino (LDP), a registered political party, informed the COMELEC by way of Manifestation that only the Party Chairman, Senator Edgardo J. Angara, or his authorized representative may endorse the certificate of candidacy of the partys official candidates. The same Manifestation stated that Sen. Angara had placed the LDP Secretary General, Representative Agapito A. Aquino, on indefinite forced leave. In the meantime, Ambassador Enrique A. Zaldivar was designated Acting Secretary General. The Manifestation concluded with this prayer:

A.

The Honorable Commission recognizes [sic] only those Certificates of Candidacy to which are attached Certificates of Nomination executed by LDP Party Chairman Edgardo J. Angara or by such other officers of the LDP whom he may authorize in writing, and whose written authorizations shall be deposited with the Honorable Commission by the LDP General Counsel.

B.

The Honorable Commission declares [sic] as a nullity, denies [sic] due course or cancels [sic] all Certificates of Candidacy not endorsed by LDP Party Chairman Angara or by such other LDP officials as may be authorized by him. The Honorable Commission takes [sic] note of the designation of Ambassador Enrique Ike A. Zaldivar as Acting Secretary General of the LDP, and for the Honorable Commission to honor and recognize the official acts, to the exclusion of everyone, of Ambassador Zaldivar for and in behalf of the LDP as Secretary General.
[1]

C.

On December 16, 2003, Rep. Aquino filed his Comment, contending that the Party Chairman does not have the authority to impose disciplinary sanctions on the Secretary General. As theManifestation filed by the LDP General Counsel has no basis, Rep. Aquino asked the COMELEC to disregard the same. On December 17, 2003, the parties agreed to file a joint manifestation pending which the proceedings were deemed suspended. On December 22, 2003, however, only the LDP General Counsel filed an Urgent Manifestation reiterating the contents of the December 8, 2003 Manifestation. The COMELEC also received a Letter from Rep. Aquino stating that the parties were unable to arrive at a joint manifestation. The next day, the LDP General Counsel filed a Second Urgent Manifestation disputing newspaper accounts that Rep. Aquino had suspended Sen. Angara as Party Chairman. On December 26, 2003, the COMELEC issued an Order requiring the parties to file a verified petition. It turned out that, two days before, Sen. Angara had submitted a verified Petition, in essence, reiterating the contents of its previous Manifestations. Attached to the Petition was a Resolution[2] adopted by the LDP National Executive Council, stating:

WHEREAS, on September 25, 2003, the National Executive Council of the Laban ng Demokratikong Pilipino (LDP) convened and unanimously passed a resolution granting full authority to Party Chairman Edgardo J. Angara to enter, negotiate and conclude a coalition agreement with other like-minded opposition parties, aggrupations and interest groups with the sole purpose of uniting the political opposition and fielding a unity ticket for the May 10, 2004 elections; WHEREAS, on December 3, 2003, the LDP, together with the Puwersa ng Masang Pilipino (PMP) and the Partido Demokratiko ng Pilipinas - LABAN (PDP-LABAN) forged a coalition to form the Koalisyon ng Nagkakaisang Pilipino (KNP); WHEREAS, the Executive Committee of the KNP subsequently adopted its resolution entitled: Resolution Choosing Mr. Fernando Poe, Jr. as the Standard Bearer of the

Koalisyon ng Nagkakaisang Pilipino (KNP) for President of the Republic of the Philippines in the May 10, 2004 National Elections; .... WHEREAS, the process of unification of the political opposition and the actions taken in connection therewith by Chairman Angara and by other governing bodies of the LDP required the taking of immediate and forceful action by them to preserve and protect the integrity, credibility, unity and solidarity of the LDP, and ensure the attainment of unification of the political opposition; WHEREAS, such immediate and forceful action include those that have to do with pre-emptive efforts to diffuse the chaos, confusion and disunity projected by the pronouncements and acts of some officers and members to the general membership of the LDP and the electorate, such as the one taken by the Regional Committee for Region VI (Western Visayas) on December 6, 2003; the enforcement of order in the LDP through the voice of a central leadership in command in an otherwise extraordinary and emergency situation, such as the one taken by Party Chairman Angara on December 6, 2003; the filing of the Manifestation with the COMELEC on the matter of the authorized signatories for the nominations and, the adoption of resolutions by the regional committees affirming their trust and confidence in Chairman Angara, and authorizing him to choose the presidential standard bearer for the May 10, 2004 elections; NOW THEREFORE, BE IT RESOLVED, AS IT IS HEREBY RESOLVED, By the National Executive Council, to ratify and confirm the Covenant of National Unity, the Declaration of Unity entered into by Party Chairman Edgardo J. Angara, and all acts and decisions taken by him to enforce and implement the same; RESOLVED, FURTHER, To ratify and confirm all other acts and decisions of Chairman Angara and other governing bodies to preserve the integrity, credibility, unity and solidarity of the LDP; and, RESOLVED, FINALLY, To reiterate the vote of confidence of the National Executive Council in, and support to, the continued efforts of Chairman Angara to unite the political opposition.
[3]

Rep. Aquino filed his Answer to the Petition on December 30, 2003. The COMELEC heard the parties on oral arguments on the same day, after which the case was submitted for resolution.

Pending resolution, a Certificate of Nomination of Sen. Panfilo Lacson as LDP candidate for President was filed with the COMELEC. The Certificate of Nomination was signed by Rep. Aquino as LDP Secretary General. On January 6, 2004, the COMELEC came to a decision. The Commission identified the sole issue as who among the [LDP] officers [are] authorized to authenticate before the Commission that the person filing the certificate of candidacy as party nominee for a certain position is the official candidate of the party chosen in accordance with its Constitution.[4] The COMELEC recognized that it has the authority to act on matters pertaining to the ascertainment of the identity of [a] political party and its legitimate officers. [5] In the same breath, however, it held that internal party matters and wranglings [sic] are purely for the party members to settle among themselves and any unsettled controversy should be brought to the proper forum with jurisdiction. The question of who was suspended by whom was thus left for such proper forum to resolve. [6] Noting that the intramurals in the LDP as an internal party matter seems to be irreconcilable for the present when the filing of Certificate of Candidacy and Certificate of Nomination are about to reach the deadline, the COMELEC disposed of the Petition in the following fashion:

WHEREFORE, premises considered, the petition is GRANTED with LEGAL EQUITY for both Petitioner and Oppositor. The candidates for President down to the last Sangguniang Bayan Kagawad nominated and endorsed by LDP Chairman Edgardo J. Angara are recognized by the Commission as official candidates of LDP Angara Wing. The candidates from President down to the last Sangguniang Bayan Kagawad as nominated and endorsed by LDP Secretary General Agapito Butz Aquino are recognized as official candidates of LDP Aquino Wing. Consequently, each faction or Wing is entitled to a representative to any election committee to which it may be entitled as created by the Commission for the May 10, 2004 elections. For the copies of the election returns, the Angara Wing will be entitled to the copies corresponding to odd number of precincts, that is, Precinct Nos. 1, 3, 5, etc., and for the Aquino Wing to the even number of precincts, that is Precinct Nos. 2, 4, 6, etc. This is on the assumption that the LDP or as a party within a registered Political Coalition becomes a recognized and denominated as a Dormant [sic] Minority Party under the Election Laws. The two LDP Wings are further entitled to and be accorded the rights and privileges with corresponding legal obligations under Election Laws.
[7]

Commissioners Luzviminda G. Tancangco, Ralph C. Lantion, Resurreccion Z. Borra and Florentino A. Tuason, Jr. concurred in the Resolution authored by Commissioner Rufino S.B. Javier. Chair Benjamin S. Abalos, Sr., joined by Commissioner Mehol K. Sadain, submitted dissenting opinions.

Sen. Angara thus filed the present petition for Certiorari[8] assailing COMELEC Resolution for having been issued with grave abuse of discretion. Thereafter, Rep. Aquino filed his Comment.

the

The Office of the Solicitor General submitted a Manifestation and Motion praying for the granting of the Petition. The COMELEC thus filed a separate Comment to the Petition. The COMELEC correctly stated that the ascertainment of the identity of [a] political party and its legitimate officers is a matter that is well within its authority. The source of this authority is no other than the fundamental law itself, which vests upon the COMELEC the power and function to enforce and administer all laws and regulations relative to the conduct of an election.[9] In the exercise of such power and in the discharge of such function, the Commission is endowed with ample wherewithal and considerable latitude in adopting means and methods that will ensure the accomplishment of the great objectives for which it was created to promote free, orderly and honest elections.[10] Thus, in Kalaw v. Commission on Elections which involved the leadership fight in the Liberal Party, [11] this Court held:

that the respondent [COMELEC] has jurisdiction to hear and decide SP Case No. 85-021 [involving a petition to prohibit Eva Estrada Kalaw from usurping or using the title or position of President of the Liberal Party] in view of its powers under Article IX-C, Section 2, of the Constitution to, among others, enforce and administer all laws relative to the conduct of elections, decide all questions affecting elections, register and regulate political parties, and insure orderly elections. These powers include the determination of the conflicting claims made in SP Case No. 85-021, which are likely to cause confusion among the electorate if not resolved. Additionally, the COMELEC is mandated by the Election Code to inter alia require candidates to specify their political party affiliation in their certificates of candidacy, allow political parties to appoint watchers, limit the expenditures of each political party, determine whether or not a political party shall retain its registration on the basis of its showing in the preceding elections, etc. These matters include the ascertainment of the identity of the political party and its legitimate officers responsible for its acts and the resolution of such controversies as the one now before it where one party appears to be divided into two wings under separate leaders each claiming to be the president of the entire party. [Emphasis supplied.]
Likewise in Palmares v. Commission on Elections,[12] to which the assailed Resolution made reference and which involved the Nacionalista Party,[13] this Court ruled

 that the COMELEC has jurisdiction over the issue of leadership in a political party. Under the Constitution, the COMELEC is empowered to register political parties [Sec. 2(5), Article IX-C.] Necessarily, the power to act on behalf of a party and the responsibility for the acts of such political party must be fixed in certain persons acting as its officers. In the exercise of the power to register political parties, the COMELEC must determine who these officers are. Consequently, if there is any controversy as to leadership, the COMELEC may, in a proper case brought before it, resolve the issue incidental to its power to register political parties.
This Court then proceeded to quote from Kalaw, supra. The two cited decisions find support in Sumulong v. Commission on Elections[14] and Sotto v. Commission on Elections,[15] where this Court, in resolving the issue as to who between the factions of a political party was entitled to nominate election inspectors, necessarily settled claims to the partys leadership. Both cases were decided without question on the COMELECs power to determine such claims. In conformity with jurisprudence, this Court did not identify the COMELEC s jurisdiction as an issue when this case was heard on oral argument. There is no inconsistency between the above cases on the one hand and this Courts more recent ruling in Sinaca v. Mula[16] on the other. In the latter case, this Court held:

A political party has the right to identify the people who constitute the association and to select a standard bearer who best represents the partys ideologies and preference. Political parties are generally free to conduct their internal affairs free from judicial supervision; this common-law principle of judicial restraint, rooted in the constitutionally protected right of free association, serves the public interest by allowing the political processes to operate without undue interference. Thus, the rule is that the determination of disputes as to party nominations rests with the party, in the absence of statutes giving the courts [sic] jurisdiction. Quintessentially, where there is no controlling statute or clear legal right involved, the court will not assume jurisdiction to determine factional controversies within a political party, but will leave the matter for determination by the proper tribunals of the party itself or by the electors at the polls. Similarly, in the absence of specific constitutional or legislative regulations defining how nominations are to be made, or prohibiting nominations from being made in certain ways, political parties may handle such affairs, including nominations, in such manner as party rules may establish. [Emphasis supplied.]
Sinaca, unlike previous cases, did not involve the question of party identity or leadership; hence, it was not necessary for the COMELEC to delve therein. None of the candidates involved in that case were claiming to be the political partys sole candidate.

In the case at bar, the Party Chairman, purporting to represent the LDP, contends that under the Party Constitution only he or his representative, to the exclusion of the Secretary General, has the authority to endorse and sign party nominations. The Secretary General vigorously disputes this claim and maintains his own authority. Clearly, the question of party identity or leadership has to be resolved if the COMELEC is to ascertain whether the candidates are legitimate party standard bearers or not. The repercussions of the question of party identity and leadership do not end at the validity of the endorsement of the certificates of candidacy of persons claiming to be the partys standard bearer. The law grants a registered political party certain rights and privileges,[17] which, naturally, redound to the benefit of its candidates. It is also for this significant dimension that Sinaca is not applicable in this case. As conceded in Sinaca itself, the Court will have to assume jurisdiction to determine factional controversies within a political party where a controlling statute or clear legal right is involved.[18] Verily, there is more than one law, as well as a number of clear legal rights, that are at stake in the case at bar. The law accords special treatment to political parties. The dominant majority party, the dominant minority party as determined by the COMELEC, for instance, is entitled to a copy of the election returns.[19] The six (6) accredited major political parties may nominate the principal watchers to be designated by the Commission. [20] The two principal watchers representing the ruling coalition and the dominant opposition coalition in a precinct shall, if available, affix their signatures and thumbmarks on the election returns for that precinct.[21] Three (3) of the six accredited major political parties are entitled to receive copies of the certificate of canvass. [22] Registered political parties whose candidates obtained at least ten percent (10%) of the total votes cast in the next preceding senatorial election shall each have a watcher and/or representative in the procurement and watermarking of papers to be used in the printing of election returns and official ballots and in the printing, numbering, storage, and distribution thereof.[23] Finally, a candidate and his political party are authorized to spend more per voter than a candidate without a political party.[24] It is, therefore, in the interest of every political party not to allow persons it had not chosen to hold themselves out as representatives of the party. Corollary to the right of a political party to identify the people who constitute the association and to select a standard bearer who best represents the partys ideologies and preference [25] is the right to exclude persons in its association and to not lend its name and prestige to those which it deems undeserving to represent its ideals. A certificate of candidacy makes known to the COMELEC that the person therein mentioned has been nominated by a duly authorized political group empowered to act and that it reflects accurately the sentiment of the nominating body.[26] A candidates political party affiliation is also printed followed by his or her name in the certified list of candidates.[27] A candidate misrepresenting himself or herself to be a partys candidate, therefore, not only misappropriates the partys name and prestige but foists a deception upon the electorate, who may unwittingly cast its ballot for him or her on the mistaken belief that he or she stands for the partys principles. To prevent this occurrence, the COMELEC has the power and the duty to step in and enforce the law not only to protect the party

but, more importantly, the electorate, in line with the Commissions broad constitutional mandate to ensure orderly elections. Having revisited and clarified the jurisdiction of COMELEC to rule upon questions of party identity and leadership as an incident to its enforcement powers, this Court cannot help but be baffled by the COMELECs ruling declining to inquire into which party officer has the authority to sign and endorse certificates of candidacy of the partys nominees. The only issue in this case, as defined by the COMELEC itself, is who as between the Party Chairman and the Secretary General has the authority to sign certificates of candidacy of the official candidates of the party. Indeed, the petitioners Manifestation and Petition before the COMELEC merely asked the Commission to recognize only those certificates of candidacy signed by petitioner Sen. Angara or his authorized representative, and no other. To resolve this simple issue, the COMELEC need only to turn to the Party Constitution. It need not go so far as to resolve the root of the conflict between the party officials. It need only resolve such questions as may be necessary in the exercise of its enforcement powers. The LDP has a set of national officers composed of, among others, the Party Chairman and the Secretary General.[28] The Party Chairman is the Chief Executive Officer of the Party, whose powers and functions include:

(1)

To represent the Party in all external affairs and concerns, sign documents for and on its behalf, and call the meetings and be the presiding officer of the National Congress and the National Executive Council.
[29]

The Secretary General, on the other hand, assists the Party Chairman in overseeing the day-to-day operations of the Party. Among his powers and functions is:

(1)

When empowered by the Party Chairman, to sign documents for and on behalf of the Party.
[30]

The Secretary Generals authority to sign documents, therefore, is only a delegated power, which originally pertains to the Party Chairman. Rep. Aquino claims that he was authorized to exercise to sign the party candidates certificates of candidacy in the previous elections. Indeed, the COMELEC found that:

In fact, during the May 14, 2001 elections, oppositor Agapito Butz Aquino, as LDP Secretary General, was authorized by the LDP to sign for the Certificates of Nomination of the LDP Senatorial Candidates, including the Certificate of Nomination for Senatorial Candidate Edgardo J. Angara, a copy of said Certificate of Nomination and a copy of the Certificate for Senator Edgardo J. Angara are attached as Annexes A and B, respectively. This action by Secretary General Aquino is in

accordance with the Constitution and By-laws of LDP, not questioned by the LDP signed by its Secretary General. This revocation has not been revoked or recalled by the National Congress of the LDP which is the one authorized to nominate candidates for President and Vice-President, respectively.
[31]

Assuming that Rep. Aquino previously had such authority, this Court cannot share the COMELECs finding that the same has not been revoked or recalled. No revocation of such authority can be more explicit than the totality of Sen. Angaras Manifestations and Petition before the COMELEC, through which he informed the Commission that Rep. Aquinos had been placed on indefinite forced leave and that Ambassador Zaldivar has been designated Acting Secretary General, who shall henceforth exercise all the powers and functions of the Secretary General under the Constitution and By-Laws of the LDP.[32] As the prerogative to empower Rep. Aquino to sign documents devolves upon Sen. Angara, so he may choose, at his discretion, to withhold or revoke such power. Both respondents Rep. Aquino and COMELEC also cited Section 6 of COMELEC Resolution No. 6453[33] as basis for the Party Secretary Generals authority to sign certificates of candidacy. Said Section 6 states:

SEC. 6. Certificate of nomination of official candidates by political party. The certificate of nomination of registered political parties or coalitions of political parties of their official candidates shall be filed not later than the last day for filing of certificates of candidacy, which is January 2, 2004 duly signed and attested under oath by the party president, chairman, secretary-general or any other duly authorized officer and shall bear the acceptance of the nominee by affixing his signature in the space provided therein. [Emphasis and underscoring supplied.]
Clearly, however, the above provision presupposes that the party president, chairman or secretary-general has been duly authorized by the p arty to sign the certificate of candidacy. COMELEC Resolution No. 6453 cannot grant a party official greater authority than what the party itself grants, lest such Resolution amount to a violation of the partys freedom of association. Neither does the Party Secretary General have the power to nominate the official candidates of the LDP. That power resides in the governing bodies of the Party. [34] In particular, the National Congress, which is the highest policy-making and governing body of the Party, has the power

(6)

To nominate the official candidates of the Party for President, Vice President, and Senators, and, whenever the corresponding conventions fail to meet or to make the requisite nominations, to nominate the official candidates for municipal city, congressional district, provincial and regional elective offices.
[35]

Not only does Rep. Aquino insist on his power to sign Certificates of Candidacy on behalf of the LDP but he would also deny Sen. Angara that power on account of the latters preventive suspension. It seems, however, that respondent has abandoned this tack by the silence of his Memorandum on the matter. In any case, it appears that on November 28, 2003, Representative Rolex Suplico, LDP Region VI Regional Chairman, filed a complaint with Rep. Aquino against Party Chairman Sen. Angara for disloyalty to the Party, gross violation of the Party Constitution, and other divisive acts inimical to the interest of the party and its members. Rep. Aquino, as Secretary General, created a committee composed of three (3) members of the LDP National Executive Council to investigate the complaint and recommend appropriate action thereon. On December 12, 2003, the investigating committee issued a resolution placing Sen. Angara under preventive suspension effective immediately and directing him to refrain from performing acts in behalf of the party until the committee finishes its investigation and submits its final recommendations. The authority to create the investigating committee supposedly rests on Section 9 (4), Article VI of the LDP Constitution, which enumerates the powers and functions of the Secretary General:

(4)

With the concurrence of the Party Chairman, to enforce Party discipline. {Emphasis supplied.]

Evidently, just as Rep. Aquino has no power to sign and nominate candidates in behalf of the LDP, neither does he have the power to enforce Party discipline or, as an incident thereto, to create an investigating committee, without the Party Chairmans concurrence. Much less does the investigating committee so created have the power to place the Party Chairman under preventive suspension since its authority stems from a nullity. Simply put, the spring has no source. The lack of Rep. Aquinos authority to sign documents or to nominate candidates for the LDP would not result in the denial of due course to or the cancellation of the certificates of candidacy he may have signed on behalf of the LDP. [36] The exclusive ground for the denial of due course to or the cancellation of a certificate of candidacy for any elective office is that any material representation contained therein as required by law is false.[37] Since the signature of Rep. Aquino was affixed either prior to, or on the basis of, the challenged Resolution recognizing his authority to sign on behalf of the LDP, the same would not constitute material representation that is false. In such case, the candidates are simply deemed as not nominated by the LDP and are considered independent candidates pursuant to Section 7 of COMELEC Resolution No. 6453:

SEC. 7. Effect of filing certificate of nomination. A candidate who has not been nominated by a registered political party or its duly authorized representative, or whose nomination has not been submitted by a registered political party shall be considered as an independent candidate.

COMELEC Commissioner Sadain referred to the above provision in his Dissenting Opinion, and this Court finds refreshing wisdom so sorely wanting in the majority opinion in his suggestion that:

All other party members representing themselves to be candidates of the party shall not be deprived of their right to file their respective certificates of candidacy and run for office, if so qualified, but that they shall not be accorded the rights and privileges reserved by election laws for official nominees of registered political parties. Instead, they shall be treated as independent candidates.
[38]

From the foregoing, it is plain that the COMELEC misapplied equity in the present case. For all its conceded merits, equity is available only in the absence of law and not as its replacement.[39] Equity is described as justice without legality, which simply means that it cannot supplant, although it may, as often happens, supplement the law. [40] The COMELEC should have decided the case on the basis of the party constitution and election laws. It chose not to because of its irrational fear of treading, as respondent Aquino put it, on unchartered territories.[41] But, as shown above, these territories have long been charted by jurisprudence and, in any case, the COMELEC need not have sailed far from the shore to arrive at the correct conclusion. In truth, the COMELEC Resolution is indecision in the guise of equity. Worse, the COMELEC divided the LDP into wings, each of which may nominate candidates for every elective position. Both wings are also entitled to representatives in the election committees that the Commission may create. In the event that the LDP is accorded dominant minority party election status, election returns of odd-numbered precincts shall be furnished the Angara wing and those of even-numbered precincts, the Aquino wing. By creating the two wings, the COMELEC effectively diffused the LDPs strength and undeniably emasculated its chance of obtaining the Commissions nod as the dominant minority party. By allowing each wing to nominate different candidates, the COMELEC planted the seeds of confusion among the electorate, who are apt to be confounded by two candidates from a single political party. In Recabo, Jr. v. Commission on Elections,[42] this Court declared that the electoral process envisions one candidate from a political party for each position, and disunity and discord amongst members of a political party should not be allowed to create a mockery thereof. The admonition against mocking the electoral process not only applies to political parties but with greater force to the COMELEC. By according both wings representatives in the election committees, the COMELEC has eroded the significance of political parties and effectively divided the opposition. The COMELEC has lost sight of the unique political situation of the Philippines where, to paraphrase Justice Perfectos concurring opinion in Sotto, supra, the administration party has always been unnecessarily and dangerously too big and the opposition party too small to be an effective check on the administration. The purpose of according dominant status and representation to a minority party is precisely

to serve as an effective check on the majority. The COMELEC performed a disservice to the opposition and, ultimately, to the voting public, as its Resolution facilitated, rather than forestalled, the division of the minority party. By splitting copies of the election returns between the two factions, the COMELEC has fractured both wings. The practical purpose of furnishing a party with a copy of the election returns is to allow it to tally the results of the elections at the precinct level. Ultimately, it is a guard against fraud. Thus, resort to copies thereof may be had when the election returns are delayed, lost or destroyed,[43] or when they appear to be tampered or falsified.[44] A split party without a complete set of election returns cannot successfully help preserve the sanctity of the ballot. It bears reminding respondent Commission of this Courts pronouncement in Peralta v. Commission on Elections,[45] which, while made in the backdrop of a parliamentary form of government, holds equally true under the present government structure:

political parties constitute a basic element of the democratic institutional apparatus. Government derives its strength from the support, active or passive, of a coalition of elements of society. In modern times the political party has become the instrument for the organization of societies. This is predicated on the doctrine that government exists with the consent of the governed. Political parties perform an essential function in the management of succession to power, as well as in the process of obtaining popular consent to the course of public policy. They amass sufficient support to buttress the authority of governments; or, on the contrary, they attract or organize discontent and dissatisfaction sufficient to oust the government. In either case they perform the function of the articulation of the interests and aspirations of a substantial segment of the citizenry, usually in ways contended to be promotive of the national weal.
The assailed COMELEC Resolution does not advance, but subverts, this philosophy behind political parties. As if to rationalize its folly, the COMELEC invokes the constitutional policy towards a free and open party system.[46] This policy, however, envisions a system that shall evolve according to the free choice of the people,[47] not one molded and whittled by the COMELEC. When the Constitution speaks of a multi-party system, it does not contemplate the COMELEC splitting parties into two. For doing just that, this pretender to the throne of King Solomon acted whimsically and capriciously. Certiorari lies against it, indeed. WHEREFORE, the assailed COMELEC Resolution is ANNULLED and the Petition is GRANTED IN PART. Respondent Commission on Elections is directed to recognize as official candidates of the Laban ng Demokratikong Pilipino only those whose Certificates of Candidacy are signed by LDP Party Chairman Senator Edgardo J. Angara or his duly authorized representative/s. SO ORDERED.

Vitug, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur. Davide, Jr., C.J., in the result. Puno, J., on leave. Vitug, J., please see separate opinion. Sandoval-Gutierrez, J., please see dissenting opinion. Corona, J., joins the dissenting opinion of J. Gutierrez.

Laban v. COMELEC, G.R. No. 161265. February 24, 2004

Digested by Mr. Jared

Facts: Prior to the MAy 2004 elections, the LAban ng Demokratikong Pilipino (LDP)
has been divided because of a struggle of authority between Party Chair Edgardo Angara and Part Secretary General Agapito Aquino, both having endorsed two differentsets of candidates under the same party, LDP. The matter was brought to the COMELEC. The Commission in its resolution, has recognized the factions creating two sub-parties: LDP Angara Wing and LDP Aquino Wing.

Issue: Whether or not the COMELEC committed a grave abuse of discretion in

recognizing the two sets of nominations and endosements by the same party.

Held: The COMELEC erred in its resolution. Only those Certificates of Candidacy
(COC) signed by the LDP Party Chairman Angara or his duly authorized representative/s shall be recognized.