G.R. NO.

167011 April 30, 2008

SPS. CARLOS S. ROMUALDEZ AND ERLINDA R.

ROMUALDEZ, petitioners, v. COMMISSION ON ELECTIONS AND DENNIS
GARAY, respondents.

Promulgated:

April 30, 2008

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

DISSENTING OPINION

CARPIO, J.:

Petitioners are charged under two Informations for violation of Section 10(g) and (j) 1 in
relation to Section 45(j) of Republic Act No. 8189.2 RA No. 8189 does not state that
violations of Section 10(g) and (j) are election offenses. However, Section 45(j) makes a
blanket declaration that "[V]iolation of any of the provisions of this Act" is an
election offense.

Petitioners now assail Section 45(j) as unconstitutional for vagueness as it does not
refer to any particular provision of RA No. 8189. Petitioners claim a violation of their
constitutional right under the due process clause.3Petitioners assert that a penal
statute must provide "fair notice" of what is a criminal act and what is a lawful act.
Petitioners claim that Section 45(j), a penal law that carries the penalty of imprisonment
from one to six years,4violates their constitutional right to "fair notice" because it is
vague.

The due process clause, which guarantees that no person shall be deprived of life,
liberty or property without due process of law, requires that citizens are given sufficient
notice or warning of what is lawful and unlawful conduct under a penal statute. To
enforce this guarantee, courts have developed the void for vagueness doctrine. The
void for vagueness doctrine expresses the rule that for an act to constitute a crime, the
law must expressly and clearly declare such act a crime. A related doctrine is that penal
statutes are construed strictly against the state and liberally in favor of the accused.

Petitioners constitutional attack on Section 45(j) under the due process clause puts in
issue two other requirements for the validity of a penal statute. First, a penal statute
must prescribe an ascertainable standard of guilt to guide courts in
adjudication.5 Second, a penal statute must confine law enforcers within well-defined
boundaries to avoid arbitrary or discriminatory enforcement of the law.6

Petitioners challenge the constitutionality of Section 45(j) "as applied" to them in a live
case under which they face prosecution. This is the traditional "as applied" approach in
challenging the constitutionality of any statute. In an "as applied" challenge, the
petitioner who claims a violation of his constitutional right can raise any constitutional
ground - whether absence of due process, lack of fair notice, lack of ascertainable
standards, overbreadth, or vagueness.

The "as applied" approach embodies the rule that one can challenge the
constitutionality of a statute only if he asserts a violation of his own rights. The rule
prohibits one from challenging the constitutionality of the statute based solely on the
violation of the rights of third persons not before the court. This rule is also known as the
prohibition against third-party standing.

The U.S. Supreme Court has created a notable exception to the prohibition against
third-party standing. Under the exception, a petitioner may mount a "facial" challenge to
the constitutionality of a statute even if he claims no violation of his own rights under the
assailed statute. To mount a "facial" challenge, a petitioner has only to show violation
under the assailed statute of the rights of third parties not before the court. This
exception allowing "facial" challenges, however, applies only to statutes
involving free speech. The ground allowed for a "facial" challenge is overbreadth or
vagueness of the statute. Thus, the U.S. Supreme Court declared:

x x x the Court has altered its traditional rules of standing to permit - in the First
Amendment area - attacks on overly broad statutes with no requirement that
the person making the attack demonstrate that his own conduct could not be
regulated by a statute drawn with the requisite narrow specificity. x x x Litigants,
therefore, are permitted to challenge a statute not because their own rights of
free expression are violated, but because of a judicial prediction or assumption
that the statute's very existence may cause others not before the court to refrain
from constitutionally protected speech or expression.7 (Emphasis supplied)

The rationale for this exception allowing a "facial" challenge is to counter the "chilling
effect" on protected speech that comes from statutes violating free speech. A person
who does not know whether his speech constitutes a crime under an overbroad or
vague law may simply refuse to speak to avoid being charged of a crime. The
overbroad or vague law chills him into silence.

Prof. Erwin Chemerinsky, a distinguished American textbook writer on Constitutional

Law, explains clearly the exception of overbreadth to the rule prohibiting third-party
standing in this manner:

The third exception to the prohibition against third-party standing is termed the
"overbreadth doctrine." A person generally can argue that a statute is
unconstitutional as it is applied to him or her; the individual cannot argue that a
statute is unconstitutional as it is applied to third parties not before the court. For
example, a defendant in a criminal trial can challenge the constitutionality of the
law that is the basis for the prosecution solely on the claim that the statute
unconstitutionally abridges his or her constitutional rights. The overbreadth
 doctrine is an exception to the prohibition against third-party standing. It permits
a person to challenge a statute on the ground that it violates the First
Amendment (free speech) rights of third parties not before the court, even though
the law is constitutional as applied to that defendant. In other words, the
overbreadth doctrine provides that: "Given a case or controversy, a litigant whose
own activities are unprotected may nevertheless challenge a statute by showing
that it substantially abridges the First Amendment rights of other parties not
before the court."8

The overbreadth doctrine is closely related to the vagueness doctrine. 9 Both doctrines
are often simultaneously invoked to mount "facial" challenges to statutes violating free
speech.10

The doctrines of overbreadth and vagueness, as devices to mount "facial"

challenges to penal or non-penal statutes violating free speech, are not applicable
to the present petition for two reasons. First, petitioners here assert a violation of their
own constitutional rights, not the rights of third-parties. Second, the challenged statute -
Section 45(j) of RA No. 8189, does not involve free speech. Thus, any invocation of the
doctrines of overbreadth and vagueness to mount a "facial" challenge in the present
case is grossly misplaced.

Justice Vicente Mendozas separate opinion in Estrada v. Sandiganbayan,11 a case

involving both "facial" and "as applied" challenges to specific provisions of the Anti-
Plunder Law, correctly distinguished between the inapplicability of the "facial"
challenge and the applicability of the "as applied" challenge in that case. Justice
Mendoza succinctly stated, "As conduct not speech is its object, the challenged
provision must be examined only "as applied" to the defendant, herein petitioner, and
should not be declared unconstitutional for overbreadth or vagueness [under a "facial"
challenge]." Justice Mendoza further explained in his separate opinion denying the
motion for reconsideration:

x x x Accordingly, as the enforcement of the Anti-Plunder Law is not alleged to

produce a chilling effect on freedom of speech or religion or some "fundamental
rights" to be presently discussed, only such provisions can be challenged by
petitioner as are sought to be applied to him. Petitioner cannot challenge
the entire statute on its face. A contrary rule would permit litigation to turn on
abstract hypothetical applications of a statute and disregard the wise limits
placed on the judicial power by the Constitution. x x x (Emphasis supplied)12

In Romualdez v. Sandiganbayan,13 petitioner Romualdez challenged the

constitutionality of Section 5 of the Anti-Graft and Corrupt Practices Act for which
petitioner Romualdez was being prosecuted. The case clearly involved an "as applied"
challenge to the constitutionality of a statute. Thus, petitioner Romualdez could raise
any constitutional ground, including overbreadth and vagueness, to strike down Section
5. Indeed, the Court in Romualdez stated that "the challenged provision must be
examined only "as applied" to the defendant." After discussing the void for
vagueness doctrine, the Court ruled that "the challenged provision is not vague," thus
acknowledging that the constitutionality of a penal statute can be tested by the
vagueness doctrine.

Unfortunately, the Court in Romualdez also stated: "It is best to stress at the outset that
the overbreadth and the vagueness doctrines have special application only to free-
speech cases. They are not appropriate for testing the validity of penal statutes." The
Court concluded: "In sum, the Court holds that the challenged provision is not vague,
and that in any event, the overbreadth and void for vagueness doctrines are not
applicable to this case."

However, we must view these statements of the Court on the inapplicability of the
overbreadth and vagueness doctrines to penal statutes as appropriate only insofar as
these doctrines are used to mount "facial" challenges to penal statutes not involving
free speech. These statements of the Court are also obiter
dicta since Romualdez involved an "as applied" challenge and not a "facial" challenge to
the constitutionality of a statute.

The present petition indisputably involves an "as applied" challenge to the

constitutionality of Section 45(j) of RA No. 8189. As an "as applied" challenge,
petitioners may raise any constitutional ground to strike down Section 45(j). In this
"as applied" challenge, petitioners may invoke the overbreadth and vagueness
doctrines to test the constitutionality of Section 45(j).

The threshold issue on the constitutionality of Section 45(j) now turns on three
tests: First, does Section 45(j) give "fair notice" or warning to ordinary citizens as to
what is criminal conduct and what is lawful conduct? Put differently, is Section 45(j) so
vague that ordinary citizens must necessarily guess as to its meaning and differ as to its
application?14 Second, is Section 45(j) so vague that it prescribes no ascertainable
standard of guilt to guide courts in judging those charged of its violation?15 Third, is
Section 45(j) so vague that law enforcers - the police and prosecutors - can arbitrarily or
selectively enforce it?16

If Section 45(j) meets all the three tests, it complies with the due process clause and is
therefore constitutional. If it fails any one of the three tests, then it is unconstitutional
and the two Informations against petitioners based on Section 45(j) should be quashed.

RA No. 8189 contains 52 sections and some 235 sentences, 149 paragraphs, and
7,831 words. Section 45(j) of RA No. 8189 makes "violation of any of the provisions"
of RA No. 8189 a criminal offense, in addition to violations expressly specified in
Section 45(a) to (i).17

Section 45(j) of RA No. 8189 provides:

SEC. 45. Election Offenses. The following shall be considered election

offenses under this Act:
 (a) x x x

xxx

(j) Violation of any of the provisions of this Act.

(Emphasis supplied)

Thus, the violation of any of the following provisions of RA No. 8189, not covered under
Section 45(a) to (i), is a crime:

1. Section 10, requiring that the voters "application shall contain the following
data," listing 11 data (a to k) to be written by the applicant. The 11th data required
is "such information or data as may be required by the Commission." If the
applicant fails to write the data required by the Commission, he commits a crime.

Here, petitioners are charged with violating Section 10(g) and ((j) for their alleged
failure to state in their application form the periods of their residence in the
Philippines, as well as for allegedly falsely stating that they are not registered
voters in any other precinct.

2. Section 10, requiring that the "application for registration shall contain three (3)
specimen signatures of the applicant, clear and legible rolled prints of his left and
right thumbprints, with four identification size copies of his latest photograph x x
x." If the applicant writes only two specimen signatures or his thumbprints are not
clear and legible, he commits a crime.

3. Section 11(e), stating that insane or incompetent persons "shall be disqualified

from registering." If an insane or incompetent person registers as a voter, he
commits a crime.

4. Section 18, requiring that a challenge to an applicant for registration "shall be

under oath." If the challenger fails to put his challenge under oath, he commits a
crime.

5. Section 27, requiring that the Election Registration Board "shall deactivate the
registration and remove the registration records" of "any person who did not vote
in the two (2) successive preceding regular elections." Members of the Election
Registration Board commit a crime if they fail to do so.

6. Section 29, requiring that the Election Registration Board "shall cancel the
registration records of those who died as certified by the Local Civil Registrar." If
the members of the Election Registration Board fail to do so, they commit a
crime.
 7. Section 40, requiring that the Commission on Elections "shall reconstitute all
registration records which have been lost or destroyed." If the members of the
Commission on Elections fail to do so, they commit a crime.

By no means is the foregoing enumeration exhaustive. There are many more provisions
of RA No. 8189 that may be violated by a voter, Election Officer, or other officials of the
Commission on Elections without committing the "Election Offenses" specified in
Section 45(a) to (i) of RA No. 8189. However, the ordinary citizen has no way of
knowing which provisions of RA No. 8189 are covered by Section 45(j) even if he has
before him a copy of RA No. 8189.

Even Judges and Justices will differ as to which provisions of RA No. 8189 fall under
Section 45(j). The prosecution office of the Comelec has not specified which provisions
of RA No. 8189 fall under Section 45(j). There is no legal textbook writer who has
attempted to enumerate the provisions of RA No. 8189 that fall under Section 45(j).
Members of the Commission on Elections will certainly dispute that failure by the
Commission to reconstitute lost or destroyed registration records constitutes a crime on
their part.

Under RA No. 8189, law enforcement officers have wide latitude to choose which
provisions of the law to consider a crime since there is no specific enumeration of
provisions falling under Section 45(j). Prosecutors can choose to prosecute only those
who violate certain provisions of RA No. 8189. Judges trying violators of the law have
no ascertainable standard to determine the guilt of a person accused of violating
Section 45(j). There is no certainty which provisions of RA No. 8189 fall under Section
45(j).

Section 45(j) makes a blanket, unconditional declaration that "violation of any of the
provisions" of RA No. 8189 constitutes a crime. In contrast, Section 45(b)18 states that to
constitute a crime the failure to give notice or to submit a report must be "without
cause." Under Section 45(j), whether the violation or omission is with or without cause,
the act constitutes a crime while under Section 45(b) a violation or omission for cause is
not a crime.

Certainly, the lawmaker did not intend that trivial and harmless violations, or omissions
for cause, should constitute a crime under Section 45(j). Unfortunately, there is no way
of knowing with certainty what these trivial and harmless violations or omissions are.
Everyone will have to guess as to what provisions fall under Section 45(j), and their
guesses will most likely differ from each other.

The last paragraph of Section 419 of RA No. 8189 prohibits a change of the precinct
assignment of a voter without the voters written consent. This paragraph expressly
declares, "Any violation thereof shall constitute an election offense which shall be
punished in accordance with law." The prohibition against such change of precinct
assignment is not one of the specific acts penalized under Section 45(a) to (i). Since
such change of precinct assignment is expressly declared an election offense in Section
4 itself, such act is clearly a crime and merits the penalty prescribed in Section 46.

However, the provision in the last paragraph of Section 4 declaring a violation of such
paragraph an election offense is not found in any other provision of RA No. 8189. The
ordinary citizen will not know if the lawmaker also intended other provisions of RA No.
8189 to carry the same penal sanction, even in the absence of an express declaration
that violation of such provisions is an election offense. This adds to the uncertainty of
the ordinary citizen as to what constitutes criminal conduct and what constitutes lawful
conduct under RA No. 8189.

A provision in an elaborate and detailed law that contains a catch-all provision making it
a crime to violate any provision of such law does not give "fair notice" to the ordinary
citizen on what constitutes prohibited conduct or permitted conduct under such law.
Section 45(j) does not draw reasonably clear lines between lawful and unlawful conduct
such that the ordinary citizen has no way of finding out what conduct is a prohibited
act.20 The ordinary citizen will have to guess which provisions of RA No. 8189, other
than those mentioned in Section 45(a) to (i), carry a penal sanction.

If Section 45(j) had enumerated the specific provisions within its coverage, then
reasonable clear lines would guide the ordinary citizen as to what acts are prohibited.
Section 45(j) does not specify those provisions and thus fails to draw reasonable clear
lines. If Section 45(j) is strictly applied, the ordinary citizen may simply decline to
exercise his right of suffrage to avoid unintentionally committing a crime. Section 45(j) is
a trap even to the most educated citizen.

There is no basis in the claim that since petitioners are being prosecuted under Section
45(j) in relation to Section 10 (g) and (j), there is no vagueness in the law under which
petitioners are charged. Precisely, Section 45(j) does not specify Section 10(g) and (j)
as some the provisions of RA No. 8189 that may be violated. Only the Information filed
by the prosecutor mentions Section 10(g) and (j) as some of the provisions that may be
violated under Section 45(j). The Information, however, is not part of RA No. 8189, and
the prosecutor has no legislative power to amend Section 45(j) to cure its vagueness.

A penal law void for vagueness is not made valid by a specification in the Information
correcting the vagueness in the law. No court of law has adopted a doctrine that the
prosecutor has the power to correct a vagueness in a penal law. Whether a law is void
for vagueness under an "as applied" challenge must be tested under the
provisions of the law as found in the statute books, and not as interpreted by the
prosecutor in the Information.

There is also no basis in the claim that any discussion on the possible provisions of RA
No. 8189 that may fall within the coverage of Section 45(j) constitutes a "facial"
challenge on such provisions of RA No. 8189. This is gross error. What is void for
vagueness is the provision "violation of any of the provisions of this Act," and
not any of the unnamed provisions that may be violated. No other provision in RA
No. 8189 is being challenged as unconstitutional, only Section 45(j). The provisions
possibly falling within the coverage of Section 45(j) must be discussed to illustrate that
the ordinary citizen has no way of knowing with certitude what provisions of RA No.
8189 fall within the coverage of Section 45(j). The discussion shows that the ordinary
citizen has no fair notice that these are the provisions falling within the coverage of
Section 45(j). What is being challenged is the constitutionality of Section 45(j), which is
so vague that it could cover any of the provisions discussed above.

In People v. Gatchalian,21 the Court declared constitutional a provision penalizing "any

person who wilfully violates any of the provisions" of the Minimum Wage Law. There,
the Court stated:

x x x A study of the origin of our Minimum Wage Law (Republic Act 602) may be
of help in arriving at an enlightened and proper interpretation of the provisions
under consideration. Our research shows that this Act was patterned after the U.
S. Fair Labor Standards Act of 1938, as amended, and so a comparative study of
the pertinent provisions of both would be enlightening.

The pertinent provisions of the U. S. Fair Labor Standards Act of 1938, as

amended, follow:

"MINIMUM WAGES

SEC. 6. (a) Every employer shall pay to each of his employees who is
engaged in commerce or in the production of goods for commerce wages
at the following rates

"(1) not less than 75 cents an hour;"

xxx xxx xxx

"PROHIBITED ACTS

SEC. 15. (a) After the expiration of one hundred and twenty, days from the
date of enactment of this Act, it shall be unlawful for any person

"(1) to transport, offer for transportation, ship, deliver, or sell in commerce,

or to ship, deliver; or sell with knowledge that shipment or delivery or sale
thereof in commerce is intended, any goods in the production of which any
employee was employed in violation of section 6 or section 7, or in
violation of any regulation or order of the Administrator issued under
section 14; xxx

"(2) to violate any of the provisions of section 6 or section 7, or any of the

provisions of any regulation or order of the Administrator issued under
section 14;
"(3) to discharge or in any other manner discriminate against any
employee because such employee has filed any complaint or instituted or
cause to be instituted any proceeding under or related to this Act, or has
testified or is about to testify in any such proceeding, or has served or is
about to serve on an industry committee;

"(4) to violate any of the provisions of section 11 (c) or any regulation or

order made or continued in effect under the provisions of section 11 (d), or
to make any statement, report, or record filed or kept pursuant. to the
provisions of such section or of any regulation or order thereunder,
knowing such statement, report, or record to be false in a material respect.

xxx xxx xxx

"PENALTIES

SEC. 16. (a) Any person who willfully violates any of the provisions
of section 15 shall upon conviction thereof be subject to a line of not
more than P10,000, or to imprisonment for not more than six months, or
both. No person shall be imprisoned under this subsection except for an
offense committed after the conviction of such person for a prior offense
under this subsection.

"(b) Any employer who violates the provisions of section 6 or 7 of this Act
shall be liable to the employee or employees affected in the amount of
their unpaid minimum wages, or their unpaid overtime compensation, as
the case may be, and in additional equal amount as liquidated damages.
Action to recover such liability may be maintained in any court of
competent jurisdiction by any one or more employees for and in behalf of
himself or themselves and other employees similarly situated. No
employee shall be a party plaintiff to any such action unless he gives his
consent in writing to become such a party and such consent is filed in the
court in which such action is brought. The court in such action shall, in
addition to any judgment awarded to the plaintiff or plaintiffs, allow a
reasonable attorney's fee to be paid by the defendant costs of the action."

The pertinent provisions of Republic Act 602 read:

SEC. 3. Minimum wage. (a) Every employer shall pay to each of his
employees who is employed by an enterprise other than in agriculture
wages at the rate of not less than

xxx xxx xxx

"(2) Three pesos a day on the effective date of this Act and for one year
after the effective date, and thereafter P4 a day, for employees of
 establishments located outside of Manila or its environs: Provided, That
this Act shall not apply to any retail or service enterprise that regularly
employs not more than five employees."

"SEC. 15. Penalties and recovery of wage due under this Act. (a) Any
person who willfully violates any of the provisions of this Act shall
upon conviction thereof be subject to a fine of not more than two thousand
pesos, or, upon second conviction, to imprisonment of not more than one
year, or to both fine and imprisonment, in the discretion of the court.

xxx xxx xxx

"(e) Any employer who underpays an employee in violation of this Act

shall be liable to the employee effected in the amount of the unpaid wages
with legal interest. Action to recover such liability may be maintained in
any competent court by anyone or more employees on behalf of himself or
themselves. The court in such action shall, in addition to any judgment
awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee
which shall not exceed ten per cent of the amount awarded to the
plaintiffs, unless the amount awarded is less than one hundred pesos, in
which event the fee may be ten pesos, but not in excess of that amount.
Payment of the amount found due to the plaintiffs shall be made directly to
the plaintiffs, in the presence of a representative of the Secretary or of the
Court. In the event payment is witnessed by the court or its representative,
the Secretary shall be notified within ten days of payment that the
payment has been made."

xxx

It should also be noted that while Section 16 of the Fair Labor Standards Act
which provides for the penalties to be imposed for any willful violation of the
provisions of the Act; specifically states that those penalties refer to acts declared
unlawful under Section 15 of the same Act, our law does not contain such
specification. It merely provides in Section 15 (a) that "Any person who willfully
violates any of the provisions of this Act shall upon conviction" be subject to the
penalty therein prescribed. This distinction is very revealing. It clearly indicates
that while the Fair Labor Standards Act intends to subject to criminal
action only acts that are declared unlawful, our law by legislative fiat
intends to punish not only those expressly declared unlawful but even
those not so declared but are clearly enjoined to be observed to carry out
the fundamental purpose of the law. One such provision is undoubtedly that
which refers to the payment of the minimum wage embodied in Section 3. This is
the only rational interpretation that can be drawn from the attitude of our
Congress in framing our law in a manner different from that appearing in the
mother law.22 (Boldfacing and underscoring supplied)
This Court must revisit Gatchalians holding that makes a crime "not only those (acts)
expressly declared unlawful but even those not so declared but are clearly enjoined to
be observed to carry out the fundamental purpose of the law." Unlike the U.S. Fair
Labor Standards Act after which our Republic Act No. 602 was patterned, RA 602 does
not specify the provisions of the law the violation of which is declared unlawful. This
Court must categorically rule that only acts expressly declared unlawful or prohibited by
law, and penalized as such, are crimes. Acts not expressly declared unlawful or
prohibited can never give rise to criminal liability. Any ambiguity in the law whether an
act constitutes a crime is resolved in favor of the accused.

To punish as crimes acts not expressly declared unlawful or prohibited by law violates
the Bill of Rights. First, the Constitution provides that "[N]o person shall be held to
answer for a criminal offense without due process of law." 23 Due process requires that
the law expressly declares unlawful, and punishes as such, the act for which the
accused is held criminally liable. The void for vagueness doctrine is aimed precisely
to enforce this fundamental constitutional right. Second, the Constitution provides
that "[I]n all criminal prosecutions, the accused shall x x x enjoy the right x x x to be
informed of the nature and cause of the accusation against him." 24This right of the
accused requires that the Information states the particular act the accused committed in
violation of a specific provision of a law defining such act a crime.

A blanket and unconditional declaration that any violation of an elaborate and detailed
law is a crime is too imprecise and indefinite, and fails to define with certitude and
clarity what acts the law punishes as crimes. Such a shotgun approach to criminalizing
human conduct is exactly what the void for vagueness doctrine outlaws, thus:

That the terms of a penal statute creating a new offense must be sufficiently
explicit to inform those who are subject to it what conduct on their part will render
them liable to its penalties is a well-recognized requirement, consonant alike with
the ordinary notions of fair play and the settled rules of law; and a statute which
either forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ as to its
application violates the first essential of due process of law.

xxx

The dividing line between what is lawful and unlawful conduct cannot be left to
conjecture. The citizen cannot be held to answer charges based upon penal
statutes whose mandates are so uncertain that they will reasonably admit of
different constructions. A criminal statute cannot rest upon an uncertain
foundation. The crime, and the elements constituting it, must be so clearly
expressed that the ordinary person can intelligently choose, in advance, what
course it is lawful for him to pursue. x x x25

Section 45(j) is a penal statute. Penal statutes are construed strictly against the state
and liberally in favor of the accused. The purpose is not to allow a guilty person to
escape punishment through a technicality but to provide a precise definition of the
prohibited act.26 To constitute a crime, an act must come clearly within the spirit and
letter of the penal statute.27 Otherwise, the act is outside the coverage of the penal
statute. An act is not a crime unless clearly made so by express provision of law.
This Court has declared:

Criminal statutes are to be construed strictly. No person should be brought within

their terms who is not clearly within them, nor should any act be pronounced
criminal which is not made clearly so by the statute.28 (Emphasis supplied)

Section 45(j) does not specify what provisions of RA No. 8189, if violated, carry a penal
sanction. Section 45(j) merely states that "violation of any of the provisions" of RA No.
8189 is a crime. In addition to the provisions covered by Section 45(a) to (i), there are
many other provisions of RA No. 8189 that are susceptible of violation. Section 45(j),
however, does not specify which of these other provisions carry a penal sanction if
violated. Thus, Section 45(j) fails to satisfy the requirement that for an act to be a crime
it must clearly be made a crime by express provision of law.

The penal provisions of the Omnibus Election Code29 (Code) are instructive. Section
261 of the Code enumerates what are the specific prohibited acts which constitute
election offenses. Section 26230 penalizes "Other election offenses" by specifying
the specific sections of the Code the violation of which also constitutes election
offenses. There is no room for guesswork as to what provisions the violation of which
constitutes crimes. There is "fair notice" to all citizens of what acts are prohibited, and
what acts are permitted, under the Code. Law enforcers have no discretion to choose
what provisions are prohibited as criminal acts. Judges know with certainty what
provisions of the Code carry penal sanctions.

This is not the case with Section 45(j) of RA No. 8189. Indisputably, Section 45(j) is so
vague that it fails to give "fair notice" to ordinary citizens as to what conduct is a crime
and what conduct is lawful under Section 45(j). Section 45(j) is also so vague that it fails
to define the prohibited acts in a precise and clear manner, allowing law enforcers to
enforce it arbitrarily while leaving courts no standard by which to adjudge the guilt of a
person accused of violating it. This substantial vagueness in Section 45(j) violates the
due process clause.

I therefore vote to declare Section 45(j) of RA No. 8189 UNCONSTITUTIONAL, and

to GRANT the petition.

ANTONIO T. CARPIO
Associate Justice

Footnotes
1
Section 10(g) and (j) of RA No. 8189 provides:

SEC. 10. Registration of Voters. x x x

The application shall contain the following data:

a) x x x

xxx

g) Periods of residence in the Philippines and in the place of registration;

xxx

j) A statement that the applicant is not a registered voter of any precinct;

2 The Voters Registration Act of 1996.

3
Section 1, Article III of the Constitution provides:

No person shall be deprived of life, liberty, or property without due process of

law, nor shall any person be denied the equal protection of the laws.

4 Section 46 of RA No. 8189 provides:

Section 46. Penalties. Any person found guilty of any election offense under
this Act shall be punished with imprisonment of not less than one (1) year but not
more than six (6) years and shall not be subject to probation. In addition, the
guilty party shall be sentenced to suffer disqualification to hold public office and
deprivation of the right of suffrage. If he is a foreigner, he shall be deported after
the prison term has been served. Any political party found guilty shall be
sentenced to pay a fine not less than one hundred thousand pesos (P100,000)
but not more than five hundred thousand pesos (P500,000).

5
People v. Nazario, No. L-44143, 31 August 1988, 165 SCRA186.

6
Id.

7
Broadrick v. Oklahoma, 413 U.S. 601 (1973). This case involved a non-penal
statute that prohibited state employees from engaging in partisan political
activities. The statute was declared neither substantially overbroad nor
impermissibly vague, thus valid.

8 Erwin Chemerinsky, CONSTITUTIONAL LAW, p. 86, 2nd Edition (2002).

9
John E. Nowak and Ronal D. Rotunda write, "Closely related to the overbreadth
doctrine is the void for vagueness doctrine. The problem of vagueness in statutes
regulating speech activities is based on the same rationale as the overbreadth
doctrine and the Supreme Court often speaks of them together."
CONSTITUTIONAL LAW, p. 1070, 6th Edition (2000).

10
See note 1, p. 917.

11 421 Phil. 290 (2001).

12
Resolution dated 29 January 2002.

13 479 Phil. 265 (2004).

14
Connally v. General Constr. Co., 269 U.S. 385 (1926), cited in Ermita-Malate
Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, No. L-
24693, 31 July 1967, 20 SCRA 849.

15 Grayned v. City of Rockford, 408 U.S. 104 (1972).

16
Id.

17 Section 45(a) to (i) provides:

Section 45. Election Offenses. The following shall be considered election

offenses under this Act:

a) to deliver, hand over, entrust or give, directly or indirectly, his voter's

identification card to another in consideration of money or other benefit or
promise; or take or accept such voter's identification card directly or indirectly, by
giving or causing the giving of money or other benefit or making or causing the
making of a promise therefor;

b) to fail, without cause, to post or give any of the notices or to make any of the
reports reacquire under this Act;

c) to issue or cause the issuance of a voter's identification number or to cancel or

cause the cancellation thereof in violation of the provisions of this Act; or to
refuse the issuance of registered voters their voter's identification card;

d) to accept an appointment, to assume office and to actually serve as a member

of the Election Registration Board although ineligible thereto; to appoint such
ineligible person knowing him to be ineligible;
e) to interfere with, impede, abscond for purposes of gain or to prevent the
installation or use of computes and devices and the processing, storage,
generation and transmission of registration data or information;

f) to gain, cause access to, use, alter, destroy, or disclose any computer data,
program, system software, network, or any computer-related devices, facilities,
hardware or equipment, whether classified or declassified;

g) failure to provide certified voters and deactivated voters list to candidates and
heads or representatives of political parties upon written request as provided in
Section 30 hereof;

h) failure to include the approved application form for registration of a qualified

voter in the book of voters of a particular precinct or the omission of the name of
a duly registered voter in the certified list of voters of the precinct where he is
duly registered resulting in his failure to cast his vote during an election,
plebiscite, referendum, initiative and/or recall. The presence of the form or name
in the book of voters or certified list of voters in precincts other than where he is
duly registered shall not be an excuse hereof;

i) The posting of a list of voters outside or at the door of a precinct on the day of
an election, plebiscite, referendum, initiative and/or recall and which list is
different in contents from the certified list of voters being used by the Board of
Election Inspectors; and

x x x.

18
Section 45(b) provides:

Section 45. Election Offenses. The following shall be considered election

offenses under this Act:

a) x x x

b) to fail, without cause, to post or give any of the notices or to make any of the
reports reacquired under this Act;

x x x. (Emphasis supplied)

19
This paragraph provides:

The precinct assignment of a voter in the permanent list of voters shall not be
changed or altered or transferred to another precinct without the express written
consent of the voter: Provided, however, That the voter shall not unreasonably
withhold such consent: Any violation thereof shall constitute an election offense
which shall be punished in accordance with law. (Emphasis supplied)