12. DIOCESE OF Petitioners posted two (2) tarpaulins 1.
ns 1. Whether or not COMELEC has a legal basis to regulate the posting
BACOLOD VS. within a private compound housing the
COMELEC San Sebastian Cathedral of Bacolod. Each
[G.R. No. 205728 tarpaulin was approximately six feet (6')
January 21, 2015] by ten feet (10') in size. They were posted
on the front walls of the cathedral within
public view. The first tarpaulin contains
the message "IBASURA RH Law".
The second tarpaulin is the subject of the
present case. This tarpaulin contains the
heading "Conscience Vote" and lists
candidates as either "(Anti-RH) Team
Buhay" with a check mark, or "(Pro-RH)
Team Patay" with an "X" mark. The
electoral candidates were classified
according to their vote on the adoption of
the RH Law. Those who voted for the
passing of the law were classified by
petitioners as comprising "Team Patay,"
while those who voted against it form
"Team Buhay”
Comelec issued a notice and a letter
ordering the immediate removal of the
tarpaulin; otherwise, it will be
constrained to file an election offense
against petitioners. Hence this petition
for certiorari and prohibition under Rule
65.
Petitioners contend that the assailed
notice and letter for the removal of the
tarpaulin violate their fundamental right
to freedom of expression.
of the tarpulins.
2. Whether or not the regulation violate petitioner’s freedom of speech
and expression.
3. Whether or not the tarpaulins qualify as election propaganda.
4. Whether or not the removal of the tarpaulin was a content-based
regulation.
5. Whether or not the regulation can pass the content-neutral test.
6. May private speech amount to election paraphernalia, and thus subject
to regulation?
7. Whether or not COMELEC violated the right of petitioners to the free
exercise of their religion.
1. No. COMELEC had no legal basis to regulate expressions made by
private citizens.
Respondents cite the Constitution, laws, and jurisprudence to support
their position that they had the power to regulate the posting of
campaign materials like the tarpaulin in this case. However, all of these
provisions pertain to candidates and political parties. Petitioners are not
candidates. Neither do they belong to any political party. COMELEC does
not have the authority to regulate the enjoyment of the preferred right
to freedom of expression exercised by a non-candidate in this case.
The tarpaulin was not paid for by any candidate or political party. There
was no allegation that petitioners coordinated with any of the persons
named in the tarpaulin regarding its posting. On the other hand,
petitioners posted the tarpaulin as part of their advocacy against the RH
Law.
-Section 79 of Batas Pambansa Blg. 881, otherwise known as the
Omnibus Election Code, defines an"election campaign" as follows:
....
(b) The term "election campaign" or "partisan political activity" refers to
an act designed to promote the election or defeat of a particular
candidate or candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees or other
1
On the other hand, respondents contend
that the tarpaulin is an election
propaganda subject to their regulation
pursuant to their mandate under Article
IX-C, Section 4 of the Constitution. Thus,
the assailed notice and letter ordering
itsremoval for being oversized are valid
and constitutional.
Respondents argue that the tarpaulin is
election propaganda, being petitioners’
way of endorsing candidates who voted
against the RH Law and rejecting those
who voted for it. As such, it is subject to
regulation by COMELEC under its
constitutional mandate.
On the other hand, petitioners argue that
the tarpaulin was their statement of
approval and appreciation of the named
public officials’ act of voting against the
RH Law, and their criticism toward those
who voted in its favor. It was "part of
their advocacy campaign against the RH
Law," which was not paid for by any
candidate or political party.
COMELEC contends that the order for
removal of the tarpaulin is a content-
neutral regulation. The order was made
simply because petitioners failed to
comply with the maximum size limitation
for lawful election propaganda.
On the other hand, petitioners argue that
the present size regulation is content-
groups of persons for the purpose of soliciting votes and/or undertaking
any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies, parades, or
other similar assemblies, for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or holding
interviews for or against the election of any candidate for public office;
(4) Publishing or distributing campaign literature or materials designed
to support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or
against a candidate.
The foregoing enumerated acts if performed for the purpose of
enhancing the chances of aspirants for nomination for candidacy to a
public office by a political party, aggroupment, or coalition of parties
shall not be considered as election campaign or partisan election
activity. Public expressions or opinions or discussions of probable issues
in a forthcoming election or on attributes of or criticisms against
probable candidates proposed to be nominated in a forthcoming
political party convention shall not be construed as part of any election
campaign or partisan political activity contemplated under this Article.
(Emphasis supplied)
True, there is no mention whether election campaign is limited only to
the candidates and political parties themselves. The focus of the
definition is that the act must be "designed to promote the election or
defeat of a particular candidate or candidates to a public office."
In this case, the tarpaulin contains speech on a matter of public concern,
that is, a statement of either appreciation or criticism on votes made in
the passing of the RH law. Thus, petitioners invoke their right to
freedom of expression.
2. Yes. The form of expression is just as important as the information
conveyed that it forms part of the expression. The present case is in
point.
It is easy to discern why size matters.
2
based as it applies only to political speech
and not to other forms of speech such as
commercial speech. "[A]ssuming
arguendo that the size restriction sought
to be applied . . . is a mere time, place, and
manner regulation, it’s still
unconstitutional for lack of a clear and
reasonable nexus with a constitutionally
sanctioned objective."
3. No. Election propaganda is defined under Section 1(4) of COMELEC
First, it enhances efficiency in communication. A larger tarpaulin allows
larger fonts which make it easier to view its messages from greater
distances. Furthermore, a larger tarpaulin makes it easier for
passengers inside moving vehicles to read its content. Compared with
the pedestrians, the passengers inside moving vehicles have lesser time
to view the content of a tarpaulin. The larger the fonts and images, the
greater the probability that it will catch their attention and, thus, the
greater the possibility that they will understand its message.
Second, the size of the tarpaulin may underscore the importance of the
message to the reader.
Third, larger spaces allow for more messages. Larger spaces, therefore,
may translate to more opportunities to amplify, explain, and argue
points which the speakers might want to communicate. Rather than
simply placing the names and images of political candidates and an
expression of support, larger spaces can allow for brief but memorable
presentations of the candidates’ platforms for governance.
Large tarpaulins, therefore, are not analogous to time and place. They
are fundamentally part of expression protected under Article III, Section
4 of the Constitution.
Resolution No. 9615 as follows: SECTION 1. Definitions . . .
....
4. The term "political advertisement" or "election propaganda"
refers to any matter broadcasted, published, printed, displayed or
exhibited, in any medium, which contain the name, image, logo, brand,
insignia, color motif, initials, and other symbol or graphic
representation that is capable of being associated with a candidate or
party, and is intended to draw the attention of the public or a segment
thereof to promote or oppose, directly or indirectly, the election of the
said candidate or candidates to a public office. In broadcast media,
political advertisements may take the form of spots, appearances on TV
shows and radio programs, live or taped announcements, teasers, and
3
 other forms of advertising messages or announcements used by
commercial advertisers. Political advertising includes matters, not
falling within the scope of personal opinion, that appear on any Internet
website, including, but not limited to, social networks, blogging sites,
and micro-blogging sites, in return for consideration, or otherwise
capable of pecuniary estimation.

It is clear that this paragraph suggests that personal opinions are not
included, while sponsored messages are covered.

While the tarpaulin may influence the success or failure of the named
candidates and political parties, this does not necessarily mean it is
election propaganda. The tarpaulin was not paid for or posted "in return
for consideration" by any candidate, political party, or party-list group.

Thus, the last paragraph of Section 1(1) of COMELEC Resolution No.

9615 states:
SECTION 1. Definitions - As used in this Resolution:
1. The term "election campaign" or "partisan political activity" refers to
an act designed to promote the election or defeat of a particular
candidate or candidates to a public office, and shall include any of the
following:
....
Personal opinions, views, and preferences for candidates, contained in
blogs shall not be considered acts of election campaigning or partisan
political activity unless expressed by government officials in the
Executive Department, the Legislative Department, the Judiciary, the
Constitutional Commissions, and members of the Civil Service.
In any event, this case does not refer to speech in cyberspace, and its
effects and parameters should be deemed narrowly tailored only in
relation to the facts and issues in this case. It also appears that such
wording in COMELEC Resolution No. 9615 does not similarly appear in
Republic Act No. 9006, the law it implements.

4. Yes.

4
 A content-based regulation, however, bears a heavy presumption of
invalidity and is measured against the clear and present danger rule.
The latter will pass constitutional muster only if justified by a
compelling reason, and the restrictions imposedare neither overbroad
nor vague.

Under this rule, "the evil consequences sought to be prevented must be

substantive, ‘extremely serious and the degree of imminence extremely
high.’" "Only when the challenged act has overcome the clear and
present danger rule will it pass constitutional muster, with the
government having the burden of overcoming the presumed
unconstitutionality."

Even with the clear and present danger test, respondents failed to justify
the regulation. There is no compelling and substantial state interest
endangered by the posting of the tarpaulin as to justify curtailment of
the right of freedom of expression. There is no reason for the state to
minimize the right of non-candidate petitioners to post the tarpaulin in
their private property. The size of the tarpaulin does not affect anyone
else’s constitutional rights.
Content-based restraint or censorship refers to restrictions "based on
the subject matter of the utterance or speech." In contrast, content-
neutral regulation includes controls merely on the incidents of the
speech such as time, place, or manner of the speech.

The regulation involved at bar is content-based. The tarpaulin content is

not easily divorced from the size of its medium.

5. No. Even if we apply the test for content-neutral regulation, the

questioned acts of COMELEC will not pass the three requirements for
evaluating such restraints on freedom of speech.

"When the speech restraints take the form of a content-neutral

regulation, only a substantial governmental interest is required for its
validity," and it is subject only to the intermediate approach.
This intermediate approach is based on the test that we have
5
prescribed in several cases. A content-neutral government regulation is
sufficiently justified:

[1] if it is within the constitutional power of the Government; [2] if

it furthers an important or substantial governmental interest;
[3] if the governmental interest is unrelated to the suppression of
free expression; and
[4] if the incident restriction on alleged [freedom of speech &
expression] is no greater than is essential to the furtherance of that
interest.

On the first requisite, it is not within the constitutional powers of the

COMELEC to regulate the tarpaulin. As discussed earlier, this is
protected speech by petitioners who are non-candidates. On the second
requirement, not only must the governmental interest be important or
substantial, it must also be compelling as to justify the restrictions
made.

Compelling governmental interest would include constitutionally

declared principles. We have held, for example, that "the welfare of
children and the State’s mandate to protect and care for them, as parens
patriae, constitute a substantial and compelling government interest in
regulating . . . utterances in TV broadcast."

Respondent invokes its constitutional mandate to ensure equal

opportunity for public information campaigns among candidates in
connection with the holding of a free, orderly, honest, peaceful, and
credible election.

This interest is "not as important as the right of [a private citizen] to

freely express his choice and exercise his right of free speech." In any
case, faced with both rights to freedom of speech and equality, a prudent
course would be to "try to resolve the tension in a way that protects the
right of participation."

The third requisite is likewise lacking. We look not only at the legislative
6
 intent or motive in imposing the restriction, but more so at the effects of
such restriction, if implemented. The restriction must not be narrowly
tailored to achieve the purpose. It must be demonstrable. It must allow
alternative avenues for the actor to make speech.

In this case, the size regulation is not unrelated to the suppression of

speech. Limiting the maximum sizeof the tarpaulin would render
ineffective petitioners’ message and violate their right to exercise
freedom of expression.

The COMELEC’s act of requiring the removal of the tarpaulin has the
effect of dissuading expressions with political consequences. These
should be encouraged, more so when exercised to make more
meaningful the equally important right to suffrage.

The restriction in the present case does not pass even the lower test of
intermediate scrutiny for content-neutral regulations.
The action of the COMELEC in this case is a strong deterrent to further
speech by the electorate. Given the stature of petitioners and their
message, there are indicators that this will cause a "chilling effect" on
robust discussion during elections.

The form of expression is just as important as the message itself.

6. Yes.

Regulation of speech in the context of electoral campaigns made by

persons who are not candidates or who do not speak as members of a
political party which are, taken as a whole, principally advocacies of a
social issue that the public must consider during elections is
unconstitutional. Such regulation is inconsistent with the guarantee of
according the fullest possible range of opinions coming from the
electorate including those that can catalyze candid, uninhibited, and
robust debate in the criteria for the choice of a candidate.

This does not mean that there cannot be a specie of speech by a private
7
citizen which will not amount to an election paraphernalia to be validly
regulated by law.

Regulation of election paraphernalia will still be constitutionally valid if

it reaches into speech of persons who are not candidates or who do not
speak as members of a political party if they are not candidates, only if
what is regulated is declarative speech that, taken as a whole, has
for its principal object the endorsement of a candidate only. The
regulation
(a) should be provided by law,
(b) reasonable,
(c) narrowly tailored to meet the objective of enhancing the
opportunity of all candidates to be heard and considering the
primacy of the guarantee of free expression, and
(d) demonstrably the least restrictive means to achieve that
object. The regulation must only be with respect to the time,
place, and manner of the rendition of the message. In no situation
may the speech be prohibited or censored on the basis of its
content. For this purpose, it will not matter whether the speech is
made with or on private property.

This is not the situation, however, in this case for two reasons. First, as
discussed, the principal message in the twin tarpaulins of petitioners
consists of a social advocacy.

Second, as pointed out in the concurring opinion of Justice Antonio

Carpio, the present law — Section 3.3 of Republic Act No. 9006 and
Section 6(c) of COMELEC Resolution No. 9615 — if applied to this case,
will not pass the test of reasonability. A fixed size for election posters or
tarpaulins without any relation to the distance from the intended
average audience will be arbitrary. At certain distances, posters
measuring 2 by 3 feet could no longer be read by the general public and,
hence, would render speech meaningless. It will amount to the
abridgement of speech with political consequences.

7. No.
8
At the outset, the Constitution mandates the separation of church
and state. This takes many forms. Article III, Section 5 of the
Constitution, for instance provides:

Section 5. No law shall be made respecting an establishment of

religion, or prohibiting the free exercise thereof. The free exercise
and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or political rights.
There are two aspects of this provision. The first is the non-
establishment clause. Second is the free exercise and enjoyment
of religious profession and worship.

The second aspect is at issue in this case.

Clearly, not all acts done by those who are priests, bishops, ustadz,
imams, or any other religious make such act immune from any
secular regulation. The religious also have a secular existence. They
exist within a society that is regulated by law.
The Bishop of Bacolod caused the posting of the tarpaulin. But not all
acts of a bishop amounts to religious expression. This
notwithstanding petitioners’ claim that "the views and position of
the petitioners, the Bishop and the Diocese of Bacolod, on the RH Bill
is inextricably connected to its Catholic dogma, faith, and moral
teachings

Under the Lemon Test, a regulation is constitutional when: (1) it has

a secular legislative purpose; (2) it neither advances nor inhibits
religion; and (3) it does not foster an excessive entanglement with
religion.

As aptly argued by COMELEC, however, the tarpaulin, on its face,

"does not convey any religious doctrine of the Catholic church." That
the position of the Catholic church appears to coincide with the
message of the tarpaulin regarding the RH Law does not, by itself,
bring the expression within the ambit of religious speech. On the
9
 contrary, the tarpaulin clearly refers to candidates classified under
"Team Patay" and "Team Buhay" according to their respective votes
on the RH Law.

The same may be said of petitioners’ reliance on papal encyclicals to

support their claim that the expression onthe tarpaulin is an
ecclesiastical matter. With all due respect to the Catholic faithful, the
church doctrines relied upon by petitioners are not binding upon
this court. The position of the Catholic religion in the Philippines as
regards the RH Law does not suffice to qualify the posting by one of
its members of a tarpaulin as religious speech solely on such basis.
The enumeration of candidates on the face of the tarpaulin precludes
any doubt as to its nature as speech with political consequences and
not religious speech.

The definition of an "ecclesiastical affair" in Austria v. National Labor

Relations Commission cited by petitioners finds no application in the
present case. The posting of the tarpaulin does not fall within the
category of matters that are beyond the jurisdiction of civil courts as
enumerated in the Austriacase such as "proceedings for
excommunication, ordinations of religious ministers, administration
of sacraments and other activities withattached religious
significance."

Notes:
1. Exhaustion of administrative remedies

Respondents allege that petitioners violated the principle of

exhaustion of administrative remedies. Respondents insist that
petitioners should have first brought the matter to the COMELEC En
Banc or any of its divisions.

The argument on exhaustion of administrative remedies is not

proper in this case.

Despite the alleged non-exhaustion of administrative remedies, it is

10

13. 1-UNITED Republic Act (R.A.) No. 9006, otherwise
TRANSPORT known as the "Fair Elections Act", was
KOALISYON passed. Section 9 thereof provides:
(1UTAK), v. COM
MISSION ON Sec. 9. Posting of Campaign Materials. - The
ELECTIONS COMELEC may authorize political parties and
party-list groups to erect common poster areas
for their candidates in not more than ten (10)
public places such as plazas, markets, barangay
centers and the like, wherein candidates can post,
display or exhibit election propaganda: Provided
clear that the controversy is already ripe for adjudication. Ripeness
is the "prerequisite that something had by then been accomplished
or performed by either branch [or in this case, organ of government]
before a court may come into the picture."
Petitioners’ exercise of their right to speech, given the message and
their medium, had understandable relevance especially during the
elections. COMELEC’s letter threatening the filing of the election
offense against petitioners is already an actionable infringement of
this right. The impending threat of criminal litigation is enough to
curtail petitioners’ speech.
In the context of this case, exhaustion of their administrative
remedies as COMELEC suggested in their pleadings prolongs the
violation of their freedom of speech.
2. Benevolent neutrality:
With religion looked upon with benevolence and not hostility,
benevolent neutrality allows accommodation of religion under
certain circumstances. Accommodations are government policies
that take religion specifically intoaccount not to promote the
government’s favored form of religion, but to allow individuals
and groups to exercise their religion without hindrance. Their
purpose or effect therefore is to remove a burden on, or facilitate
the exercise of, a person’s or institution’s religion
Whether Section 7(g) items (5) and (6), in relation to Section 7(f), of
Resolution No. 9615, which prohibits the posting of any election campaign
or propaganda material, inter alia, in PUVs and public transport terminals
are valid regulations.
No.
Section 4, Article IX-C of the Constitution only grants COMELEC supervisory
and regulatory powers over the enjoyment or utilization "of all franchises
or permits for the operation," inter alia, of transportation and other public
utilities. The COMELEC's constitutionally delegated powers of supervision
11
that the size of the poster areas shall not exceed
twelve (12) by sixteen (16) feet or its equivalent.
Independent candidates with no political parties
may likewise be authorized to erect common
poster areas in not more than ten (10) public
places, the size of which shall not exceed four (4)
by six (6) feet or its equivalent.
Candidates may post any lawful propaganda
material in private places with the consent of the
owner thereof, and in public places or property
which shall be allocated equitably and impartially
among the candidates.
Under the implementing rules
[Resolution 9615] promulgated by
COMELEC Section 7 thereof prohibits
private owners of PUVs and transport
terminals from post any election
campaign materials on their vehicles and
transport terminals.
SEC. 7. Prohibited Forms of Election
Propaganda. - During the campaign period,
it is unlawful:
xxxx
(f) To post, display or exhibit any election
campaign or propaganda material outside of
authorized common poster areas, in public
places, or in private properties without the
consent of the owner thereof.
(g) Public places referred to in the previous
subsection (f) include any of the following:
xxxx
5. Public utility vehicles such as buses,
and regulation do not extend to the ownership per se of PUVs and transport
terminals, but only to the franchise or permit to operate the same.
Section 7(g) items (5) and (6) of Resolution No. 9615 are not within the
constitutionally delegated power of the COMELEC to supervise or regulate
the franchise or permit to operate of transportation utilities. The posting of
election campaign material on vehicles used for public transport or on
transport terminals is not only a form of political expression, but also an act
of ownership - it has nothing to do with the franchise or permit to operate
the PUV or transport terminal. [shortened ruling]
[Prior restraint; invalid contend neutral regulation; captive-audience
doctrine; equal protection clause]
1. Section 7(g) items (5) and (6), in relation to Section 7(f), of
Resolution No. 9615 are prior restraints on speech.
Free speech may be identified with the liberty to discuss publicly and
truthfully any matter of public concern without prior restraint or
censorship and subsequent punishment.9 Prior restraint refers to
official governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination. Freedom
from prior restraint is largely freedom from government censorship of
publications, whatever the form of censorship, and regardless of
whether it is wielded by the executive, legislative or judicial branch of
the government.10 Any system of prior restraints of expression comes to
this Court bearing a heavy presumption against its validity.
The prohibition constitutes a clear prior restraint on the right to free
expression of the owners of PUVs and transport terminals. As a result of
the prohibition, owners of PUVs and transport terminals are forcefully
and effectively inhibited from expressing their preferences under the
pain of indictment for an election offense and the revocation of their
franchise or permit to operate.
2. The assailed prohibition on posting election campaign materials is
12
jeepneys, trains, taxi cabs, ferries, pedicabs
and tricycles, whether motorized or not;
6. Within the premises of public transport
terminals, such as bus terminals, airports,
seaports, docks, piers, train stations, and the
like.
The violation of items [5 and 6] under
subsection (g) shall be a cause for the
revocation of the public utility franchise and
will make the owner and/or operator of the
transportation service and/or terminal liable
for an election offense under Section 9 of
Republic Act No. 9006 as implemented by
Section 18 (n) of these Rules.
Petitioner posits that the ownership of
the PUVs per se, as well as the transport
terminals, remains private and, hence,
the owners thereof could not be
prohibited by the COMELEC from
expressing their political opinion lest
their property rights be unduly intruded
upon.
On the other hand, the COMELEC posits
that privately-owned PUVs and transport
terminals are public spaces that are
subject to its regulation. It explains that
under the Constitution, the COMELEC has
the power to enforce and administer all
laws and regulations relative to the
conduct of an election, including the
power to regulate the enjoyment or
utilization of all franchises and permits
for the operation of transportation
an invalid content-neutral regulation repugnant to the free speech
clause.
A content-neutral regulation, i.e., which is merely concerned with the
incidents of the speech, or one that merely controls the time, place or
manner, and under well-defined standards,16 is constitutionally
permissible, even if it restricts the right to free speech, provided that the
following requisites concur: first, the government regulation is
within the constitutional power of the Government; second, it
furthers an important or substantial governmental interest; third, the
governmental interest is unrelated to the suppression of free
expression; and fourth, the incidental restriction on freedom of
expression is no greater than is essential to the furtherance of that
interest.
It is conceded that Resolution No. 9615, including the herein assailed
provisions, furthers an important and substantial governmental
interest, i.e., ensuring equal opportunity, time and space among
candidates aimed at the holding of free, orderly, honest, peaceful, and
credible elections. It is further conceded that the governmental interest
in imposing the said prohibition is unrelated to the suppression of free
expression. However, Section 7(g) items (5) and (6), in relation to
Section 7(f), of Resolution No. 9615, are not within the
constitutionally delegated power of the COMELEC under Section 4,
Article IX-C of the Constitution. Also, there is absolutely no
necessity to restrict the right to free speech of the owners of PUVs
and transport terminals.
a. The COMELEC may only regulate the franchise or permit to
operate and not the ownership per se of PUVs and transport
terminals.
Section 4, Article IX-C of the Constitution only grants COMELEC
supervisory and regulatory powers over the enjoyment or utilization
"of all franchises or permits for the operation," inter alia, of
transportation and other public utilities. The COMELEC's
13
utilities.
The COMELEC further claims that
Resolution No. 9615 is a valid content-
neutral regulation and, thus, does not
impinge on the constitutional right to
freedom of speech. It avers that the
assailed regulation is within the
constitutional power of the COMELEC
pursuant to Section 4, Article IX-C of the
Constitution. The COMELEC alleges that
the regulation simply aims to ensure
equal campaign opportunity, time, and
space for all candidates - an important
and substantial governmental interest,
which is totally unrelated to the
suppression of free expression; that any
restriction on free speech is merely
incidental and is no greater than is
essential to the furtherance of the said
governmental interest.
COMELEC further insists that the
restriction on the posting of campaign
materials is justified by the captive –
audience doctrine.
constitutionally delegated powers of supervision and regulation do
not extend to the ownership per se of PUVs and transport terminals,
but only to the franchise or permit to operate the same.
In law, there is a clear distinction between the "operation" of a
public utility and the ownership of the facilities and equipment
used to serve the public.
xxxx
The right to operate a public utility may exist independently
and separately from the ownership of the facilities thereof. One
can own said facilities without operating them as a public
utility, or conversely, one may operate a public utility without
owning the facilities used to serve the public. The devotion of
property to serve the public may be done by the owner or by the
person in control thereof who may not necessarily be the owner
thereof.
The franchise or permit to operate transportation utilities is a
privilege granted to certain persons to engage in the business of
transporting people or goods; it does not refer to the ownership of
the vehicle per se. Ownership is a relation in private law by virtue of
which a thing pertaining to one person is completely subjected to his
will in everything not prohibited by public law or the concurrence
with the rights of another.23 Thus, the owner of a thing has the right
to enjoy and dispose of a thing, without other limitations than those
established by law.24
One such limitation established by law, as regards PUVs, is the
franchise or permit to operate. However, a franchise or permit to
operate a PUV is a limitation only on certain aspects of the
ownership of the vehicle pertinent to the franchise or permit
granted, but not on the totality of the rights of the owner over the
vehicle. Otherwise stated, a restriction on the franchise or permit to
operate transportation utilities is necessarily a limitation on
ownership, but a limitation on the rights of ownership over the PUV
14
is not necessarily a regulation on the franchise or permit to operate
the same.

A franchise or permit to operate transportation utilities pertains to

considerations affecting the operation of the PUV as such, e.g., safety
of the passengers, routes or zones of operation, maintenance of the
vehicle, of reasonable fares, rates, and other charges, or, in certain
cases, nationality.25 Thus, a government issuance, which purports to
regulate a franchise or permit to operate PUVs, must pertain to the
considerations affecting its operation as such. Otherwise, it becomes
a regulation or supervision not on the franchise or permit to operate,
but on the very ownership of the vehicle used for public transport.

The expression of ideas or opinion of an owner of a PUV, through the

posting of election campaign materials on the vehicle, does not affect
considerations pertinent to the operation of the PUV. Surely, posting
a decal expressing support for a certain candidate in an election will
not in any manner affect the operation of the PUV as such.
Regulating the expression of ideas or opinion in a PUV, through the
posting of an election campaign material thereon, is not a regulation
of the franchise or permit to operate, but a regulation on the very
ownership of the vehicle.

In the same manner, the COMELEC does not have the constitutional
power to regulate public transport terminals owned by private
persons. The ownership of transport terminals, even if made
available for use by the public commuters, likewise remains private.
Although owners of public transport terminals may be required by
local governments to obtain permits in order to operate, the permit
only pertains to circumstances affecting the operation of the
transport terminal as such. The regulation of such permit to operate
should similarly be limited to circumstances affecting the operation
of the transport terminal. A regulation of public transport terminals
based on extraneous circumstances, such as prohibiting the posting
of election campaign materials thereon, amounts to regulating the
15
 ownership of the transport terminal and not merely the permit to
operate the same.

b. The restriction on free speech of owners of PUVs and

transport terminals is not necessary to further the stated
governmental interest.

Section 7(g) items (5) and (6) of Resolution No. 9615 likewise failed
to satisfy the fourth requisite of a valid content-neutral regulation,
i.e., the incidental restriction on freedom of expression is no greater
than is essential to the furtherance of that interest. There is
absolutely no necessity to restrict the right of the owners of PUVs
and transport terminals to free speech to further the governmental
interest. While ensuring equality of time, space, and opportunity to
candidates is an important and substantial governmental interest
and is essential to the conduct of an orderly election, this lofty aim
may be achieved sans any intrusion on the fundamental right of
expression.

3. Section 7(g) items (5) and (6) of Resolution No. 9615 are not
justified under the captive-audience doctrine.

The captive-audience doctrine states that when a listener cannot, as a

practical matter, escape from intrusive speech, the speech can be
restricted.30 The "captive-audience" doctrine recognizes that a listener
has a right not to be exposed to an unwanted message in circumstances
in which the communication cannot be avoided.31

A regulation based on the captive-audience doctrine is in the guise of

censorship, which undertakes selectively to shield the public from some
kinds of speech on the ground that they are more offensive than others.
Such selective restrictions have been upheld only when the speaker
intrudes on the privacy of the home or the degree of captivity makes it
either impossible or impractical for the unwilling viewer or auditor to
avoid exposure.

16
 A government regulation based on the captive-audience doctrine may
not be justified if the supposed "captive audience" may avoid exposure
to the otherwise intrusive speech. The prohibition under Section 7(g)
items (5) and (6) of Resolution No. 9615 is not justified under the
captive-audience doctrine; the commuters are not forced or compelled
to read the election campaign materials posted on PUVs and transport
terminals. Nor are they incapable of declining to receive the messages
contained in the posted election campaign materials since they may
simply avert their eyes if they find the same unbearably intrusive.

4. Prohibiting owners of PUVs and transport terminals from posting

election campaign materials violates the equal protection clause.

In order that there can be valid classification so that a discriminatory

governmental act may pass the constitutional norm of equal protection,
it is necessary that the four requisites of valid classification be complied
with, namely: (1) it must be based upon substantial distinctions; (2) it
must be germane to the purposes of the law; (3) it must not be limited
to existing conditions only; and (4) it must apply equally to all members
of the class.46

It is conceded that the classification under Section 7(g) items (5) and (6)
of Resolution No. 9615 is not limited to existing conditions and applies
equally to the members of the purported class. However, the
classification remains constitutionally impermissible since it is not
based on substantial distinction and is not germane to the purpose of
the law.

A distinction exists between PUVs and transport terminals and private

vehicles and other properties in that the former, to be considered as
such, needs to secure from the government either a franchise or a
permit to operate. Nevertheless, as pointed out earlier, the prohibition
imposed under Section 7(g) items (5) and (6) of Resolution No. 9615
regulates the ownership per se of the PUV and transport terminals; the
prohibition does not in any manner affect the franchise or permit to
operate of the PUV and transport terminals.
17
As regards ownership, there is no substantial distinction between
owners of PUVs and transport terminals and owners of private vehicles
and other properties. As already explained, the ownership of PUVs and
transport terminals, though made available for use by the public,
remains private. If owners of private vehicles and other properties are
allowed to express their political ideas and opinion by posting election
campaign materials on their properties, there is no cogent reason to
deny the same preferred right to owners of PUVs and transport
terminals. In terms of ownership, the distinction between owners of
PUVs and transport terminals and owners of private vehicles and
properties is merely superficial. Superficial differences do not make for
a valid classification.47

The fact that PUVs and transport terminals are made available for use
by the public is likewise not substantial justification to set them apart
from private vehicles and other properties. Admittedly, any election
campaign material that would be posted on PUVs and transport
terminals would be seen by many people. However, election campaign
materials posted on private vehicles and other places frequented by the
public, e.g., commercial establishments, would also be seen by many
people. Thus, there is no reason to single out owners of PUVs and
transport terminals in the prohibition against posting of election
campaign materials.

Further, classifying owners of PUVs and transport terminals apart from

owners of private vehicles and other properties bears no relation to the
stated purpose of Section 7(g) items (5) and (6) of Resolution No.
9615, i.e., to provide equal time, space and opportunity to candidates in
elections. To stress, PUVs and transport terminals are private
properties. Indeed, the nexus between the restriction on the freedom of
expression of owners of PUVs and transport terminals and the
government's interest in ensuring equal time, space, and opportunity for
candidates in elections was not established by the COMELEC.

18
14. ATONG These cases constitute 54 Petitions
PAGLAUM VS. for Certiorari and Petitions
COMELEC for Certiorari and Prohibition filed by 52
[G.R. No. 203766, party-list groups and organizations
April 2, 2013] assailing the Resolutions issued by the
Commission on Elections (COMELEC)
disqualifying them from participating in
the 13 May 2013 party-list elections,
either by denial of their petitions for
registration under the party-list system,
or cancellation of their registration and
accreditation as party-list organizations.
Petitioner Atong Paglaum, Inc. is one of
those whose registration was either
denied or cancelled, on the contention
among others, that they do not represent
the marginalized and unrepresented.
The COMELEC excluded from
participating in the 13 May 2013 party-
list elections those that did not satisfy
these two criteria: (1) all national,
regional, and sectoral groups or
organizations must represent the
"marginalized and underrepresented"
sectors, and (2) all nominees must belong
to the "marginalized and
underrepresented" sector they represent.
The COMELEC applied the guidelines
1. WON COMELEC committed grave abuse of discretion in disqualifying
petitioners from participating in the coming 2013 elections.
2. WON political parties can participate in the partylist system.
1. No. However, since the Court adopts in this Decision new
parameters in the qualification of national, regional, and sectoral
parties under the party-list system, thereby abandoning the rulings in
the decisions applied by the COMELEC in disqualifying petitioners, we
remand to the COMELEC all the present petitions for the COMELEC to
determine who are qualified to register under the party-list system
Section 5. (1) The House of Representative shall be composed of not more
that two hundred and fifty members, unless otherwise fixed by law, who
shall be elected from legislative districts apportioned among the provinces,
cities, and the Metropolitan Manila area in accordance with the number of
their respective inhabitants, and on the basis of a uniform and progressive
ratio, and those who, as provided by law, shall be elected through a
party-list system of registered national, regional, and sectoral parties
or organizations. (Emphasis supplied)
Section 5(1), Article VI of the Constitution is crystal-clear that there shall
be "a party-list system of registered national, regional, and sectoral
parties or organizations." The commas after the words "national," and
"regional," separate national and regional parties from sectoral parties. Had
the framers of the 1987 Constitution intended national and regional parties
to be at the same time sectoral, they would have stated "national and
regional sectoral parties." They did not, precisely because it was never their
intention to make the party-list system exclusively sectoral. Thus, the party-
list system is composed of three different groups: (1) national parties or
organizations; (2) regional parties or organizations; and (3) sectoral parties
or organizations. National and regional parties or organizations
are different from sectoral parties or organizations. National and regional
19
adopted in the Ang Bagong Bayani case,
and the modifications under the Banat
case:
In Ang Bagong Bayani, the relevant
guidelines are:
First, the political party, sector,
organization or coalition must represent
the marginalized and underrepresented
groups identified in Section 5 of RA 7941
Second, while even major political parties
are expressly allowed by RA 7941 and
the Constitution to participate in the
party-list system, they must comply with
the declared statutory policy of enabling
"Filipino citizens belonging to
marginalized and underrepresented
sectors x x x to be elected to the House of
Representatives.
XXXX
Seventh, not only the candidate party or
organization must represent
marginalized and underrepresented
sectors; so also must its nominees.
On the other hand, the Banat Case,
stretched the ruling of the Ang Bagong
Bayani by excluding major political
parties from participating in party-list
elections.
(*The Supreme Court in this case only
modified the guidelines of the Ang
Bagong Bayani case)
parties or organizations need not be organized along sectoral lines and
need not represent any particular sector.
Moreover, Section 5(2), Article VI of the 1987 Constitution mandates that,
during the first three consecutive terms of Congress after the ratification of
the 1987 Constitution, "one-half of the seats allocated to party-list
representatives shall be filled, as provided by law, by selection or election
from the labor, peasant, urban poor, indigenous cultural communities,
women, youth, and such other sectors as may be provided by law, except
the religious sector." This provision clearly shows again that the party-list
system is not exclusively for sectoral parties for two obvious reasons.
First, the other one-half of the seats allocated to party-list representatives
would naturally be open to non-sectoral party-list representatives, clearly
negating the idea that the party-list system is exclusively for sectoral
parties representing the "marginalized and underrepresented." Second, the
reservation of one-half of the party-list seats to sectoral parties applies only
for the first "three consecutive terms after the ratification of this
Constitution," clearly making the party-list system fully open after the end
of the first three congressional terms. This means that, after this period,
there will be no seats reserved for any class or type of party that qualifies
under the three groups constituting the party-list system.
Section 3(a) of R.A. No. 7941 defines a "party" as "either a political party
or a sectoral party or a coalition of parties." Clearly, a political party is
different from a sectoral party. Section 3(c) of R.A. No. 7941 further
provides that a "political party refers to an organized group of citizens
advocating an ideology or platform, principles and policies for the
general conduct of government." On the other hand, Section 3(d) of R.A.
No. 7941 provides that a "sectoral party refers to an organized group of
citizens belonging to any of the sectors enumerated in Section 5
hereof whose principal advocacy pertains to the special interest and
concerns of their sector." R.A. No. 7941 provides different definitions for a
political and a sectoral party. Obviously, they are separate and distinct from
each other.
20
R.A. No. 7941 does not require national and regional parties or
organizations to represent the "marginalized and underrepresented"
sectors. To require all national and regional parties under the party-list
system to represent the "marginalized and underrepresented" is to deprive
and exclude, by judicial fiat, ideology-based and cause-oriented parties from
the party-list system.

There is no requirement in R.A. No. 7941 that a national or regional

political party must represent a "marginalized and underrepresented"
sector. It is sufficient that the political party consists of citizens who
advocate the same ideology or platform, or the same governance principles
and policies, regardless of their economic status as citizens. [From Sec. 3
of RA 7941, political party refers to an organized group of citizens advocating
an ideology or platform, principles and policies for the general conduct of
government and which, as the most immediate means of securing their
adoption, regularly nominates and supports certain of its leaders and
members as candidates for public office.]

The phrase "marginalized and underrepresented" should refer only to

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

2.Yes.

Major political parties can participate in subsequent party-list

21
elections since the prohibition is expressly limited only to the 1988
party-list elections. However, major political parties should participate in
party-list elections only through their sectoral wings. The participation of
major political parties through their sectoral wings, a majority of whose
members are "marginalized and underrepresented" or lacking in "well-
defined political constituencies," will facilitate the entry of the
"marginalized and underrepresented" and those who "lack well-defined
political constituencies" as members of the House of Representatives. Such
sectoral wing of a major political party must have its own constitution, by-
laws, platform or program of government, officers and members, a majority
of whom must belong to the sector represented. The sectoral wing is in
itself an independent sectoral party, and is linked to a major political party
through a coalition.

The modified parameters of the Ang Bagong Bayani case are as follows:
1. Three different groups may participate in the party-list system: (1)
national parties or organizations, (2) regional parties or
organizations, and (3) sectoral parties or organizations.

2. National parties or organizations and regional parties or

organizations do not need to organize along sectoral lines and do not
need to represent any "marginalized and underrepresented" sector.

3. Political parties can participate in party-list elections provided they

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

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

underrepresented" or lacking in "well-defined political
constituencies." It is enough that their principal advocacy pertains to
the special interest and concerns of their sector. The sectors that are
"marginalized and underrepresented" include labor, peasant,
22
 fisherfolk, urban poor, indigenous cultural communities,
handicapped, veterans, and overseas workers. The sectors that lack
"well-defined political constituencies" include professionals, the
elderly, women, and the youth.

5. A majority of the members of sectoral parties or organizations that

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

6. National, regional, and sectoral parties or organizations shall not be

disqualified if some of their nominees are disqualified, provided that they
have at least one nominee who remains qualified.

The disqualification of petitioners, and their nominees, under such

circumstances is contrary to the 1987 Constitution and R.A. No. 7941.

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

15. ABAYON VS. Abayon and Palparan are the respective Whether or not HRET has jurisdiction over the question of qualifications of
HRET first nominees of the Aangat Tayo and petitioners Abayon and Palparan as nominees of Aangat Tayo and Bantay
23
[G.R. No. 203766, Bantay partylist group that won a seat in
April 2, 2013] the House of Representatives during the
2007 elections.
The respondents filed a petition for quo
warranto before the HRET to disqualify
Aangat and Bantay. They claimed that
Aangat Tayo and Bantay were not eligible
for a party-list seat in the House of
Representatives, since they did not
belong or represent the marginalized and
underrepresented sectors.
Abayon and Palparan contend that
COMELEC not HRET has jurisdiction over
the case because it was the partylist-
Aangat Tayo and Bantay, not them, that
was elected and assumed membership in
the HR. They claimed they were just
nominees. Consequently, all concerns
involving their eligibility as first
nominees were internal concerns of
Aangat Tayo and Bantay. Such question
must be brought, before that party-list
group, not before the HRET.
HRET dismissed the petition since under
the Partylist System Act, the COMELEC
has the authority to determine which
parties or organizations have the
qualifications to seek party-list seats in
the HR during the elections.
Now, Abayon contends that HRET has no
jurisdiction to inquire into their
qualifications as nominees as said power
party-list organizations, respectively, who took the seats at the House of
Representatives that such organizations won in the 2007 elections.
Yes. Although it is the party-list organization that is voted for in the
elections, it is not the organization that sits as and becomes a member of
the House of Representatives.
The members of the House of Representatives are of two kinds: "members x
x x who shall be elected from legislative districts" and "those who x x x
shall be elected through a party-list system of registered national,
regional, and sectoral parties or organizations." This means that, from
the Constitution’s point of view, it is the party-list representatives who are
"elected" into office, not their parties or organizations. These
representatives are elected, however, through that peculiar party-list
system that the Constitution authorized and that Congress by law
established where the voters cast their votes for the organizations or
parties to which such party-list representatives belong.
Once elected, both the district representatives and the party-list
representatives are treated in like manner. They have the same deliberative
rights, salaries, and emoluments. They can participate in the making of laws
that will directly benefit their legislative districts or sectors. They are also
subject to the same term limitation of three years for a maximum of three
consecutive terms.
A party-list representative is in every sense "an elected member of the
House of Representatives." Although the vote cast in a party-list election is a
vote for a party, such vote, in the end, would be a vote for its nominees,
who, in appropriate cases, would eventually sit in the House of
Representatives.
Both the Constitution and the Party-List System Act set the qualifications
and grounds for disqualification of party-list nominees. Section 9 of R.A.
7941, echoing the Constitution, states:
Sec. 9. Qualification of Party-List Nominees. – No person shall be
nominated as party-list representative unless he is a natural-born
citizen of the Philippines, a registered voter, a resident of the
24
belongs to COMELEC which already
upheld her qualification as nominee of
Aangat Tayo for the women sector.
For Palparan, Bantay’s personality is so
inseparable and intertwined with his own
person as its nominee so that the HRET
cannot dismiss the quo warranto action
against Bantay without dismissing the
action against him.
Philippines for a period of not less than one (1) year immediately
preceding the day of the election, able to read and write, bona fide
member of the party or organization which he seeks to represent for
at least ninety (90) days preceding the day of the election, and is at
least twenty-five (25) years of age on the day of the election.
In case of a nominee of the youth sector, he must at least be twenty-
five (25) but not more than thirty (30) years of age on the day of the
election. Any youth sectoral representative who attains the age of
thirty (30) during his term shall be allowed to continue until the
expiration of his term.
In the cases before the Court, those who challenged the qualifications of
petitioners Abayon and Palparan claim that the two do not belong to the
marginalized and underrepresented sectors that they ought to represent.
The Party-List System Act provides that a nominee must be a "bona fide
member of the party or organization which he seeks to represent."7
It is for the HRET to interpret the meaning of this particular qualification of
a nominee—the need for him or her to be a bona fide member or a
representative of his party-list organization—in the context of the facts that
characterize petitioners Abayon and Palparan’s relation to Aangat Tayo and
Bantay, respectively, and the marginalized and underrepresented interests
that they presumably embody.
As to the contention that the authority to determine the qualifications of a
partylist nominee belongs to the party organization that nominated him,
the court ruled that this is true, initially. The right to examine the fitness of
aspiring nominees and, eventually, to choose five from among them after all
belongs to the party or organization that nominates them. But where an
allegation is made that the party or organization had chosen and
allowed a disqualified nominee to become its party-list representative
in the lower House and enjoy the secured tenure that goes with the
position, the resolution of the dispute is taken out of its hand.
Section 17, Article VI of the Constitution provides that the HRET shall be the
sole judge of all contests relating to, among other things, the qualifications
25

16. WIGBERTO Wigberto [Liberal Party], Tan
TANADA VS. [Nationalist People's Coalition] and Alvin
HRET Tanada [Lapiang Manggagawa ]ran for
[G.R. No. 217012, the position of Representative of the 4th
March 01, 2016 Legislative District of the Province of
] Quezon.
Wigberto filed twin petitions before
COMELEC- the first seeking the
cancellation of Alvin’s CoC and to second
seeking to declare Alvin a nuisance
candidate. The COMELEC first division
dismissed the petitions. In a motion for
reconsideration, the COMELEC en banc
cancelled the CoC of Alvin but did not
declare him a nuisance candidate.
Wigberto sought the reconsideration of
the denial of his second petition urging
COMELEC to declare Alvin a nuisance
candidate.
During the election, Alvin’s name
remained in the ballots. After the canvass
of votes Tan emerged as the winner
garnering 84,782 votes [Wigberto-
80,698; Alvin- 7,038]
of the members of the House of Representatives. Since, as pointed out
above, party-list nominees are "elected members" of the House of
Representatives no less than the district representatives are, the HRET has
jurisdiction to hear and pass upon their qualifications. By analogy with the
cases of district representatives, once the party or organization of the party-
list nominee has been proclaimed and the nominee has taken his oath and
assumed office as member of the House of Representatives, the COMELEC’s
jurisdiction over election contests relating to his qualifications ends and the
HRET’s own jurisdiction begins.
Whether or not HRET committed grave abuse of discretion in declaring that
it has no jurisdiction to declare Alvin a nuisance candidate.
No.
First, Wigberto committed several procedural errors.
- Wigberto filed a prohibited pleading: a motion for reconsideration of
a resolution of the COMELEC En Banc. Section 1(d), Rule 13 of the
COMELEC Rules of Procedure specifically prohibits the filing of a
"motion for reconsideration of an en bane ruling, resolution, order
or decision except in election offense cases." Consequently, the
COMELEC En Banc ruling became final and executory, precluding
Wigberto from raising again in any other forum Alvin John's
nuisance candidacy as an issue.
- Second, Wigberto filed his petition beyond the period provided by
the COMELEC Rules of Procedure. The COMELEC En Banc
promulgated its resolution on Alvin John's alleged nuisance
candidacy on 25 April 2013. Wigberto filed his petition in G.R. Nos.
207199-200 before this Court on 27 May 2013. By this date, the
COMELEC En Banc's resolution on Alvin John's alleged nuisance
candidacy was already final and executory. Section 3, Rule 37 of the
COMELEC Rules of Procedure provides:
chanRoblesvirtualLawlibrary
Section 3. Decisions Final After Five Days. - Decisions in pre-
proclamation cases and petitions to deny due course to or cancel
certificates of candidacy, to declare a candidate as nuisance
26

Wigberto filed a petition with the
Provincial Board of Canvassers (PBOC)
praying to consolidate the votes of Alvin
in his favour; but the motion was denied.
The PBOC held that the votes of Alvin
John could not be counted in favor of
Wigberto because the cancellation of the
former's CoC had been on the basis of his
material misrepresentations under
Section 78 of theOmnibus Election Code,
not on being a nuisance candidate under
Section 69 of Omnibus Election Code. The
Quezon PBOC then proclaimed Tan as the
winning candidate.
17. CAPALLA VS. Pursuant to its authority to use an
COMELEC Automated Election System (AES) and in
candidate or to disqualify a candidate, and to postpone or suspend
elections shall become final and executory after the lapse of five (5)
days from their promulgation, unless restrained by the Supreme
Court.
What Wigberto should have done was to file a petition
for certiorari with this Court within five days from promulgation of
the 25 April 2013 resolution of the COMELEC En Banc. Wigberto
failed to timely assail before this Court through a petition
for certiorari the COMELEC En Banc resolution declaring that Alvin
John was not a nuisance candidate.
The HRET did not commit any grave abuse of discretion in declaring that it
has no jurisdiction to determine whether Alvin John was a nuisance
candidate. If Wigberto timely filed a petition before this Court within the
period allotted for special actions and questioned Alvin John's nuisance
candidacy, then it is proper for this Court to assume jurisdiction and rule on
the matter. As things stand, the COMELEC En Banc's ruling on Alvin John's
nuisance candidacy had long become final and executory.
To our mind, it appears that Wigberto's petition challenging Alvin John's
nuisance candidacy filed before the HRET, and now before this Court, is a
mere afterthought. It was only after Angelina was proclaimed a winner that
Wigberto renewed his zeal in pursuing Alvin John's alleged nuisance
candidacy. It is not enough for Wigberto to have Alvin John's COC cancelled,
because the effect of such cancellation only leads to stray votes.9 Alvin John
must also be declared a nuisance candidate, because only then will Alvin
John's votes be credited to Wigberto.10
Wigberto further argues that this Court directed him to seek resolution
regarding Alvin John's purported nuisance candidacy before the HRET. This
is inaccurate. We directed Wigberto to the HRET to question the conduct of
the canvass and Tan's proclamation.
In light of the AES contract, can Smartmatic-TIM unilaterally extend the
option period? Can the Comelec accept the extension?
27
[G.R. No. 201112 accordance with RA No. 9184, otherwise
June 13, 2012] known as the Government Procurement
Reform Act, the Comelec posted and Yes.
published an invitation to apply for
eligibility and to bid for the 2010 Poll It is a basic rule in the interpretation of contracts that an instrument must
Automation Project (the Project). be construed so as to give effect to all the provisions of the contract. In
essence, the contract must be read and taken as a whole. While the contract
The contract for the Project was awarded indeed specifically required the Comelec to notify Smartmatic-TIM of its
to Smartmatic-TIM. The contract between OTP the subject goods until December 31, 2010, a reading of the other
the Comelec and Smartmatic-TIM was provisions of the AES contract would show that the parties are given the
one of lease of the AES with option to right to amend the contract which may include the period within which to
purchase (OTP) the goods listed in the exercise the option. There is, likewise, no prohibition on the extension of
contract. In said contract, the Comelec the period, provided that the contract is still effective.
was given until December 31, 2010
within which to exercise the option. The Considering, however, that the AES contract is not an ordinary contract as it
Comelec partially exercised its OTP 920 involves procurement by a government agency, the rights and obligations of
units of PCOS machines. the parties are governed not only by the Civil Code but also by RA 9184. In
this jurisdiction, public bidding is the established procedure in the grant of
Comelec failed to exercise its option. government contracts. The award of public contracts, through public
Later, Comelec entered into an Extension bidding, is a matter of public policy. The parties are, therefore, not at full
Agremeent to accept the offer of liberty to amend or modify the provisions of the contract bidded upon.
Smartmatic to extend the period to
exercise the OTP under the AES Contract. The three principles of public bidding are: (1) the offer to the public; (2) an
opportunity for competition; and (3) a basis for the exact comparison of
Petitioners assail the validity and bids. By its very nature, public bidding aims to protect public interest by
constitutionality of the Comelec giving the public the best possible advantages through open
Resolutions for the purchase of the competition. Competition requires not only bidding upon a common
subject PCOS machines as well as the standard, a common basis, upon the same thing, the same subject matter,
Extension Agreement and the Deed of and the same undertaking, but also that it be legitimate, fair and honest and
Sale covering said goods mainly on three not designed to injure or defraud the government. The essence of
grounds: (1) the option period provided competition in public bidding is that the bidders are placed on equal footing
for in the AES contract between the which means that all qualified bidders have an equal chance of winning the
Comelec and Smartmatic-TIM had auction through their bids. Another self-evident purpose of public bidding
already lapsed and, thus, could no longer is to avoid or preclude suspicion of favoritism and anomalies in the
be extended, such extension being execution of public contracts.
prohibited by the contract; (2) the
28
extension of the option period and the
exercise of the option without
competitive public bidding contravene
the provisions of RA 9184; and, (3)
despite the palpable infirmities and
defects of the PCOS machines, the
Comelec purchased the same in
contravention of the standards laid down
in RA 9369.
A winning bidder is not precluded from modifying or amending certain
provisions of the contract bidded upon. However, such changes must not
constitute substantial or material amendments that would alter the basic
parameters of the contract and would constitute a denial to the other
bidders of the opportunity to bid on the same terms. The determination of
whether or not a modification or amendment of a contract bidded out
constitutes a substantial amendment rests on whether the contract, when
taken as a whole, would contain substantially different terms and
conditions that would have the effect of altering the technical and/or
financial proposals previously submitted by the other bidders. The
modifications in the contract executed between the government and the
winning bidder must be such as to render the executed contract to be an
entirely different contract from the one bidded upon.
In this case, for one, Smartmatic-TIM was not granted additional right that
was not previously available to the other bidders. The grant of option is
recognized by both parties and is already a part of the principal contract of
lease. Having been included in the RFP and the bid bulletins, this right given
to the Comelec to exercise the option was known to all the bidders and was
considered in preparing their bids. The bidders were apprised that aside
from the lease of goods and purchase of services, their proposals should
include an OTP the subject goods. Although the AES contract was amended
after the award of the contract to Smartmatic-TIM, the amendment only
pertains to the period within which the Comelec could exercise the option
because of its failure to exercise the same prior to the deadline originally
agreed upon by the parties; the option contract in this case was already a
part of the original contract and not given only after Smartmatic-TIM
emerged as winner. The OTP was actually a requirement by the Comelec
when the contract of lease was bidded upon. To be sure, the Extension
Agreement does not contain a provision favorable to Smartmatic-TIM not
previously made available to the other bidders.
Two. The amendment of the AES contract is not substantial. Except for the
period within which the Comelec could exercise the OTP, the terms and
conditions for such exercise are maintained and respected. Admittedly, the
additional amount the Comelec needed to pay was maintained subject to
29

18. GOH VS. On March 2014 Goh filed before the
BAYRON COMELEC a recall petition against Mayor
[G.R. No. 212584 Bayron of Puerto Princesa City. The
November 25, COMELEC found the petition sufficient in
2014] form and substance but nevertheless
suspended the holding of a recall election
supposedly through lack of funding.
According to COMELEC the 2014 GAA did
not provide for an appropriation to serve
as contingency fund for the conduct of
Recall Elections.
the warranties originally agreed upon in the AES contract. The contract
amount not only included that for the contract of lease but also for the OTP.
Hence, the competitive public bidding conducted for the AES contract was
sufficient. A new public bidding would be a superfluity.
Third. More importantly, the amendment of the AES contract is more
advantageous to the Comelec and the public because the P7,191,484,739.48
rentals paid for the lease of goods and purchase of services under the AES
contract was considered part of the purchase price. Assuming that the
exercise of the option is nullified, the Comelec would again conduct another
public bidding for the AES for the 2013 elections with its available budget
of P7 billion.
As the Comelec is confronted with time and budget constraints, and in view
of the Comelecs mandate to ensure free, honest, and credible elections, the
acceptance of the extension of the option period, the exercise of the option,
and the execution of the Deed of Sale, are the more prudent choices
available to the Comelec for a successful 2013 automated elections. The
alleged defects in the subject goods have been determined and may be
corrected as in fact fixes and enhancements had been undertaken by
Smartmatic-TIM.
Whether or not COMELEC committed grave abuse of discretion in
suspending the recall election.
Yes.
Despite Resolution No. 9882's statement about the alleged failure of the
2014 GAA to provide for a line item appropriation for the conduct of recall
elections, we hold that the 2014 GAA actually expressly provides for a line
item appropriation for the conduct and supervision of recall elections. This
is found in the Programs category of its 2014 budget, which the COMELEC
admits in its Resolution No. 9882 is a "line item for the 'Conduct and
supervision of elections, referenda, recall votes and plebiscites.'" In
addition, one of the specific constitutional functions of the COMELEC is to
30
In COMELEC’s Resolution 9882, it stated
that the Commission does not have an
appropriation or line item budget to
serve as a contingency fund for the
conduct of recall elections under the
2014 CAA; there is no Line Item for Recall
Elections in the 2014 GAA hence
augmentation is not possible in this case.
COMELEC argued that while the
Commission has a line item for the
"Conduct and supervision of elections,
referenda, recall votes and plebiscites"
under the Program category of its 2014
budget, the amount cannot be considered
as "an appropriation made by law" as
required by the Constitution nor a
contingent fund provided under the LGC
considering that the said line item is
legally intended to finance the basic
continuing staff support and
administrative operations of the
Commission such as salaries of officials
and employees as well as essential office
maintenance and other operating
expenses. As such, it cannot be used for
the actual conduct of recall elections.
conduct recall elections. When the COMELEC receives a budgetary
appropriation for its "Current Operating Expenditures," such appropriation
includes expenditures to carry out its constitutional functions, including the
conduct of recall elections.
More importantly, the COMELEC admits in its Resolution No. 9882 that the
COMELEC has "a line item for the 'Conduct and supervision of elections,
referenda, recall votes and plebiscites.'" This admission of the COMELEC is a
correct interpretation of this specific budgetary appropriation. To be valid,
an appropriation must indicate a specific amount and a specific purpose.
However, the purpose may be specific even if it is broken down into
different related sub-categories of the same nature. For example, the
purpose can be to '"conduct elections," which even if not expressly spelled
out covers regular, special, or recall elections. The purpose of the
appropriation is still specific - to fund elections, which naturally and
logically include, even if not expressly stated, not only regular but also
special or recall elections.
-Contrary to the COMELEC's assertion, the appropriations for personnel
services and maintenance and other operating expenses falling under
"Conduct and supervision of elections, referenda, recall votes and
plebiscites" constitute a line item which can be augmented from the
COMELEC's savings to fund the conduct of recall elections in 2014. The
conduct of recall elections requires only operating expenses, not capital
outlays. The COMELEC's existing personnel in Puerto Princesa are the same
personnel who will evaluate the sufficiency of the recall petitions. and
conduct the recall elections.
Moreover, the line item appropriation for the "Conduct and supervision of x
x x recall votes x x x" in the 2014 GAA is sufficient to fund recall elections.
There is no constitutional requirement that the budgetary. appropriation
must be loaded in "contingent funds." The Congress has plenary power to
lodge such appropriation in current operating expenditures.
-As to the COMELEC's protests regarding the difference between "Projects"
and "Programs" for their failure to allocate funds for any recall process in
2014, the court held:
31

19. SISON VS. While the election returns were being
COMELEC canvassed by the Quezon City Board of
[G.R. No. Canvassers but before the winning
134096. March 3, candidates were proclaimed, petitioner
1999] commenced suit before the COMELEC by
filing a petition seeking to suspend the
canvassing of votes and/or proclamation
in Quezon City and to declare a failure of
elections. The said petition was
supposedly filed pursuant to Section 6 of
the Omnibus Election Code on the ground
of massive and orchestrated fraud and
acts analogous thereto which occurred
The constitutional test for validity is not how itemized the appropriation is
down to the project level but whether the purpose of the appropriation is
specific enough to allow the President to exercise his line item veto power.
Section 23, Chapter 4, Book VI of the Administrative Code provides a
stricter requirement by mandating that there must be a corresponding
appropriation for each program and for each project. A project is a
component of a program which may have several projects. A program is
equivalent to the specific purpose of an appropriation. An item of
appropriation for school-building is a program, while the specific schools to
be built, being the identifiable outputs of the program, are the projects. The
Constitution only requires a corresponding appropriation for a specific
purpose or program, not for the sub-set of projects or activities.
Considering that there is an existing line item appropriation for the conduct
of recall elections in the 2014 GAA, we see no reason why the COMELEC is
unable to perform its constitutional mandate to "enforce and administer all
laws and regulations relative to the conduct of x x x recall." Should the funds
appropriated in the 2014 GAA be deemed insufficient, then the COMELEC
Chairman may exercise his authority to augment such line item
appropriation from the COMELEC's existing savings, as this augmentation is
expressly authorized ]n the 2014 GAA.
1. Whether or not COMELEC was correct in dismissing the case.
2. Whether petitioner was deprived of due process.
1. Yes.
At the outset, petitioner exhibits an ambivalent stand as to what exactly
is the nature of the remedy he availed of at the time he initiated
proceedings before the COMELEC in SPC No. 98-134. At the start, he
anchors his initiatory petition under Section 6 of the Omnibus Election
Code regarding failure of elections but he later builds his case as a pre-
proclamation controversy which is covered by Sections 241-248 of the
Omnibus Election Code, as amended by R.A. No. 7166. In this respect,
the rule is, what conjointly determine the nature of a pleading are the
allegations therein made in good faith, the stage of the proceeding at
32
after the voting and during the
preparation of election returns and in the
custody or canvass thereof, which
resulted in a failure to elect.
But while the petition was pending, the
City Board of Canvassers proclaimed the
winners of the elections in Quezon City,
including the winning candidate for the
post of vice mayor. COMELEC dismissed
the petition holding that the grounds
recited by petitioner were not among
pre-proclamation issues under Section 17
of RA 7166.
Petitioner argues in the main that the
electoral body failed to afford him basic
due process, that is, the right to a hearing
and presentation of evidence before
ruling on his petition.
which it is filed, and the primary objective of the party filing the same.
Pre-proclamation controversy is not the same as an action for
annulment of election results or declaration of failure of elections,
founded as they are on different grounds.
Under the pertinent codal provision of the Omnibus Election Code, there
are only three (3) instances where a failure of elections may be
declared, namely: (a) the election in any polling place has not been
held on the date fixed on account of force majeure, violence, terrorism,
fraud, or other analogous causes; (b) the election in any polling place
had been suspended before the hour fixed by law for the closing of the
voting on account of force majeure, violence, terrorism, fraud, or other
analogous causes; or (c) after the voting and during the preparation and
transmission of the election returns or in the custody or canvass thereof,
such election results in a failure to elect on account of force majeure,
violence, terrorism , fraud, or other analogous causes.
We have painstakingly examined petitioners petition before the
COMELEC but found nothing therein that could support an action for
declaration of failure of elections. He never alleged at all that elections
were either not held or suspended. Furthermore, petitioners claim of
failure to elect stood as a bare conclusion bereft of any substantive
support to describe just exactly how the failure to elect came about.
With respect to pre-proclamation controversy, it is well to note that the
scope of pre-proclamation controversy is only limited to the issues
enumerated under Section 243 of the Omnibus Election Code, and the
enumeration therein is restrictive and exclusive. The reason underlying
the delimitation both of substantive ground and procedure is the policy
of the election law that pre-proclamation controversies should be
summarily decided, consistent with the law's desire that the canvass
and proclamation be delayed as little as possible. That is why such
questions which require more deliberate and necessarily longer
consideration, are left for examination in the corresponding election
protest.
33
 However, with the proclamation of the winning candidate for the
position contested, the question of whether the petition raised issues
proper for a pre-proclamation controversy is already of no consequence
since the well-entrench rule in such situation is that a pre-proclamation
case before the COMELEC is no longer viable, the more appropriate
remedies being a regular election protest or a petition for quo warranto.
We have carefully reviewed all recognized exceptions to the foregoing
rule but found nothing that could possibly apply to the instant case
based on the recitations of the petition. What is more, in paragraph 3 of
the COMELECs Omnibus Resolution No. 3049 (Omnibus Resolution on
Pending Cases) dated June 29, 1998, it is clearly stated therein that All
other pre-proclamation cases x x x shall be deemed terminated pursuant
to Section 16, R. A. 7166.

Section 16 which is referred to in the aforecited omnibus resolution

refers to the termination of pre-proclamation cases when the term of
the office involved has already begun, which is precisely what obtains
here.
We are, of course, aware that petitioner cites the said omnibus
resolution in maintaining that his petition is one of those cases which
should have remained active pursuant to paragraph 4 thereof. That
exception, however, operates only when what is involved is not a pre-
proclamation controversy such as petitions for disqualification, failure
of elections or analogous cases. But as we have earlier declared, his
petition, though assuming to seek a declaration of failure of elections, is
actually a case of pre-proclamation controversy and, hence, not falling
within the ambit of the exception. In any case, that omnibus resolution
would not have been applied in the first place because that was issued
posterior to the date when the herein challenge resolution was
promulgated which is June 22, 1998. There was no provision that such
omnibus resolution should have retroactive effect.

2. No. Petitioner’s claim that he was deprived of his right to due process in
that he was not allowed to present his evidence before the COMELEC to
support his petition, the same must likewise fail.
34

20. AQUINO VS. Aquino is the President and CEO of the
COMELEC Philippine Health Insurance Corporation
[G.R. Nos. 211789- (PHIC). On January 8, 2010, he issued a
90, March 17, 2015 reassignment order directing the
] reassignment of several PHIC officers and
employees.
In Resolution No. 8737, the COMELEC
defined the phrase "transfer or detail
whatever" found in Section 261(h) of BP
881 as including any personnel action,
i.e., "reassignment."
Thus, COMELEC found Aquino guilty for
First, we note that his citation of Section 242 of the Omnibus Election
Code as basis for his right to present evidence is misplaced. The phrase
after due notice refers only to a situation where the COMELEC decides
and, in fact, takes steps to either partially or totally suspend or annul the
proclamation of any candidate-elect. Verba legis non est
recedendum. From the words of the statute there should be no
departure. The statutory provision cannot be expanded to embrace any
other situation not contemplated therein such as the one at bar where
the COMELEC is not taking any step to suspend or annul a proclamation.
Second, presentation of evidence before the COMELEC is not at all
indispensable in order to satisfy the demands of due process. Under the
amendment introduced by R.A. No. 7166, particularly Section 18
thereof, all that is required now is that the COMELEC shall dispose of
pre-proclamation controversies on the basis of the records and evidence
elevated to it by the board of canvassers. This is but in keeping with the
policy of the law that cases of this nature should be summarily decided
and the will of the electorate as reflected on the election returns be
determined as speedily as possible. What exactly those records and
evidence are upon which the COMELEC based its resolution and how
they have been appreciated in respect of their sufficiency, are beyond
this Courts scrutiny
1. Whether or not COMELEC validly issued Resolution No. 8737 that
defined transfer, as contemplated under Section 261(h) of BP 881, to
include all personnel action including reassignments;
2. Whether or not COMELEC validly found prima facie case against Aquino
for violation of Resolution No. 8737 in relation to Section 261(h).
1. Yes. COMELEC is vested with powers, necessary and incidental to
achieve the objective of ensuring free, orderly, honest, peaceful and
credible elections.
Thus, expressly, the Constitution and the laws grant the COMELEC with
the power, first and foremost, to "[e]nforce and administer all laws and
regulations relative to the conduct of an election," and second, to
35
violating Resolution No. 8737 in relation
to Section 261(h) of BP 881, which
considers an election offense for "any
public official who makes or causes the
transfer or detail whatever of any public
officer or employee in the civil service x x x
within the election period except upon
prior approval of the Commission."
COMELEC contends that the term
whatever, is to be understood in its
general sense such that any movement of
personnel from one station to another,
including "reassignments," is covered by
the prohibition.
Second, while the reassignment order
was issued on January 8, 2010, or prior to
the start of the transfer ban, its
implementation took effect after the
transfer ban had already set in. To the
COMELEC, a transfer/reassignment order
must be issued and implemented prior to
the start of the election period to be
excluded from the coverage of the
transfer ban.
Aquino argues that COMELEC could not
legally and validly add a third mode of
personnel action and hold him
accountable for its violation, when the
law only prohibits transfer and detail
from among the several modes of
personnel action enumerated under the
various laws governing the civil service.
"promulgate rules and regulations." Together, these powers ensure that
the COMELEC is well armed to properly enforce and implement the
election laws and enable it to fill in the situational gaps which the law
does not provide for or which the legislature had not foreseen.
In Regalado, Jr. v. Court of Appeals, the Court already clarified the
interpretation of the term whatever as used in Section 261(h) of BP 881
in relation to the terms transfer and detail. In agreeing with the Solicitor
General’s position, this Court declared that the terms transfer and detail
are modified by the term whatever such that "any movement of
personnel from one station to another, whether or not in the same office
or agency, during the election period is covered by the prohibition."
In this case, the interpretation that includes any form of personnel
action, such as reassignment, within the coverage of the phrase
precisely guards against any such electioneering and political
harassment situations. This interpretation also more vigorously
enforces the aim not only of BP 881, but more importantly of the
Constitution to secure free, orderly, honest, peaceful, and credible
elections.
Thus, to reiterate and emphasize – the election law’s prohibition on
transfer or detail covers any movement of personnel from one station to
another, whether or not in the same office or agency when made or
caused during the election period.
As to the contention that the definition under the civil service law
applies, the court held with particular regard to election offenses, BP
881 serves as a special law that is consistent with our basic statutory
construction rules and prevails over the more general laws governing
the civil service. In other words, the treatment by the laws governing the
civil service of the terms "transfer, detail and reassignment" as distinct
modes of personnel action does not and cannot control the
interpretation of laws dealing with election and election offenses,
including the interpretation of Section 261(h) ofBP 881, unless
otherwise specifically provided.
36
On the other hand, Aquino argues that
the laws on the civil service should
govern in the interpretation of the
phrase. Under this approach, the term
"whatever" is viewed as modifying only
either the term "detail" (which it
immediately follows) or both the terms
"detail and/or transfer." In such case,
"reassignments," which is a distinct mode
of personnel action under the civil service
laws, are automatically excluded.
Second, the reassignment order did not
violate Section 261(h) of BP 881 because
he issued it on January 8, 2010, or before
the start of the election period on January
10, 2010. He points out that by its terms,
the "reassignments" were immediately
executory; it was also released and
disseminated via the PHIC’s intranet
service and facsimiles, to all concerned
officers and employees on the same date
of issue.
Further, he argues that Section 3 of BP
881 fixes the start of the election period
at ninety (90) days before the day of the
election, not one hundred and twenty
(120) days before, which the COMELEC
set in Resolution No. 8737. Hence, the
election period for the May 10, 2010
elections should have commenced on
February 9, 2010, not January 10, 2010.
As to the contention that the reassignment order was issued outside the
election period, the Court held that As a general rule, the period of
election starts at ninety (90) days before and ends thirty (30) days after
the election date pursuant to Section 9, Article IX-C of the Constitution
and Section 3 of BP 881. This rule, however, is not without exception.
Under these same provisions, the COMELEC is not precluded from
setting a period different from that provided thereunder.
In this case, the COMELEC fixed the election period for the May 10, 2010
Elections at 120 days before and 30 days after the day of the election.
We find this period proper as we find no arbitrariness in the COMELEC’s
act of fixing an election period longer than the period fixed in the
Constitution and BP 881. For one, the COMELEC fixed the longer period
of 120-days-before-and-30-days-afterpursuant to Section 9, Article IX-C
of the Constitution and Section 3 of BP 881. Also, Resolution No. 8737,
through which the COMELEC fixed this alternate period of election, is
valid as it was issued pursuant to the COMELEC’s valid exercise of its
rule-making power (under Section 6, Article IX-A of the Constitution and
Section 52[c] of BP 881). Too, Resolution No. 8737 is valid as it complied
with the publication requirement. Note that per the record, Resolution
No. 8737 was published twice – on December 31, 2009 in the Philippine
Daily Inquirer and on January 4, 2010 in the Daily Tribune.
2. No.
Under Section 261(h) of BP 881,a person commits the election offense
of violation of the election transfer ban when he makes or causes the
transfer or detail whatever of any official or employee of the
government during the election period absent prior approval of the
COMELEC.
By its terms, Section 261(h) provides at once the elements of the offense
and its exceptions. The elements are: (1) the making or causing of a
government official or employee’s transfer or detail whatever; (2) the
making or causing of the transfer or detail whatever was made during
the election period; and (3) these acts were made without the required
37
prior COMELEC approval. As this provision operates, the making or
causing of the movement of personnel during the election period but
without the required COMELEC approval is covered by the prohibition
and renders the responsible person liable for the offense. Conversely,
the making or causing (of the movement of personnel) before or after
the election period even without the required COMELEC approval, or
during the election period but with the required COMELEC approval are
not covered by the prohibition and do not render the responsible
person liable for this election offense.

Significantly, the terms make and cause indicate one and the same thing
– the beginning, the start of something, a precursor; it pertains to an act
that brings about a desired result. If we read these definitions within the
context of Section 261(h) of BP 881, the legal prohibition on transfer or
detail undoubtedly affects only those acts that go into the making or
causing or to the antecedent acts. Any act that occurs or is performed
after the antecedent act of making or causing or those acts performed to
carry out an event or result desired by the antecedent acts, such as the
actual or physical act of transferring, are no longer the concern of the
legal prohibition.

When viewed in terms of how transfer or reassignments of government

officers and employees are usually carried into place, this act of making
or causing often consists in the act of issuing the transfer or
reassignment order.

During this phase of the entire transfer or reassignment process, the

official responsible for issuing the order plays an active role at its center.
The issuing of the order are his very acts. Thus, if the orders are issued
prior to the start of the election period, they are automatically rendered
beyond the coverage of the prohibition and the issuing official cannot be
held liable for violation of Section 261(h) of BP 881. Conversely, if the
orders are issued during the election period and without COMELEC
approval, these are covered by the prohibition and renders the issuing
official liable for violation of Section 261(h).

38

21. CAUSING VS. Causing assumed office as the Municipal
COMELEC Civil Registrar (MCR) of Barotac Nuevo,
[G.R. No. 199139 Iloilo. Causing filed a complaint against
September 9, Mayor Biron in the Office of the Regional
2014] Election Director. She claims that the
Office Order No. 12 dated May 28, 2010
issued by Mayor Biron ordering her
detail to the Office of the Municipal
Mayor, being made within the election
period and without prior authority from
the COMELEC, was illegal and violative of
Comelec Resolution 8737.
Mayor Biron countered that the purpose
of transferring the office of Causing was
to closely supervise the performance of
her functions after complaints regarding
her negative behavior in dealing with her
co-employees and with the public
Once the transfer or reassignment order is issued, the making or causing
as the defining act that determines whether a government official may
be held liable under Section 261(h) is deemed completed. The
completion of this phase likewise ends the active role the issuing official
plays. Thus, the transfer or reassignment process moves to the next
phase – the implementation of the order. By definition, implement refers
to "the act of fulfilling or performing."
Aquino completed the act of making or causing the reassignment of the
affected PHIC officers and employees before the start of the election
period. In this sense, the evils sought to be addressed by Section 261 (h)
of BP 881 is kept intact by the timely exercise of his management
prerogative in rearranging or reassigning PHIC personnel within its
various offices necessary for the PHIC's efficient and smooth operation.
As Aquino's acts of issuing the order fell outside the coverage of the
transfer prohibition, he cannot be held liable for violation of Section
261(h).
Whether or not Mayor Biron violated COMELEC Resolution No. 8737, Series
of 2009, that implemented Section 261 (g), (h), and (x) of the Omnibus
Election Code.
No. Mayor Biron’s acts did not violate the Omnibus Election Code and the
COMELEC Resolution.
The only personnel movements prohibited by COMELEC Resolution No.
8737 were transfer and detail. Transfer is defined in the Resolution as "any
personnel movement from one government agency to another or from one
department, division, geographical unit or subdivision of a government
agency to another with or without the issuance of an appointment;" while
detail as defined in the Administrative Code of 1987 is the movement of an
employee from one agency to another without the issuance of an
appointment. Having acquired technical and legal meanings, transfer and
detail must be construed as such.
Obviously, the movement involving Causing did not equate to either a
transfer or a detail within the contemplation of the law if Mayor Biron only
thereby physically transferred her office area from its old location to the
39
transacting business in her office had
been received; that as the local chief
executive, he was empowered to take
personnel actions and other management
prerogatives for the good of public
service; that Causing was not being
stripped of her functions as the Municipal
Civil Registrar; that there was no transfer
or detail involved, and any movement of
Causing, if at all, was a purely physical
transfer, that is, only a few steps from her
office to the Office of the Mayor, without
any change in the present work, agency,
position, rank and compensation.
The COMELEC En Banc affirmed the
findings and recommendation of PES
Doronilla, observing that Mayor Biron did
not transfer or detail Causing but only
required her to physically report to the
Mayor’s office and to perform her
functions thereat; and that he did not
strip her of her functions as the Municipal
Civil Registrar, and did not deprive her of
her supervisory functions over her staff.
Office of the Mayor "some little steps" away. We cannot accept the
petitioner’s argument, therefore, that the phrase "any transfer or detail
whatsoever" encompassed "any and all kinds and manner of personnel
movement," including the mere change in office location.
Causing’s too-literal understanding of transfer should not hold sway
because the provisions involved here were criminal in nature. Mayor Biron
was sought to be charged with an election offense punishable under Section
264 of the Omnibus Election Code. It is a basic rule of statutory construction
that penal statutes are to be liberally construed in favor of the accused.
Mayor Biron’s act of transferring the office space of Causing was rooted in
his power of supervision and control over the officials and employees
serving in his local government unit, in order to ensure the faithful
discharge of their duties and functions.
Causing is not stripped of her functions as Municipal Civil Registrar (MCR).
She was merely required to physically report to the Mayor’s Office and
perform her functions as Municipal Civil Registrar therein. Definitely, she is
still the MCR, albeit doing her work physically outside of her usual work
station. She is also not deprived of her supervisory function over the staff as
she continues to review their work and signs documents they prepared.
While she may encounter difficulty in performing her duties as a supervisor
as she is not physically near her staff, that by itself, however, does not mean
that she has lost supervision over them. That difficulty, nonetheless, is not
tantamount to constructive dismissal. That Mayor Biron prefers to ensure
that Causing faithfully discharging her duties as MCR is principally an
exercise of his sound judgment and discretion. He alone has the discretion
to decide when to resort to the necessity of implementing changes in the
workplace as he occupies the ideal vantage point and is in the best position
to determine the needs of his agency and how to satisfy those needs.
Besides, contrary to the allegations of Causing, none of the elements of
constructive dismissal is present.1âwphi1
Notes:
Procedural issue.
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 The court held that the case must be dismissed because Causing did not file
a motion for reconsideration before filing the petition for certiorari.

Section 7, Article IX-A of the Constitution states that unless otherwise

provided by the Constitution or by law, any decision, order, or ruling of
each Commission may be brought to the Court on certiorariby the aggrieved
party within 30 days from receipt of a copy thereof. For this reason, the
Rules of Court (1997) contains a separate rule(Rule 64) on the review of the
decisions of the COMELEC and the Commission on Audit.27 Rule 64 is
generally identical with certiorari under Rule 65,28 except as to the period
of the filing of the petition for certiorari, that is, in the former, the period is
30 days from notice of the judgment or final order or resolution sought to
be reviewed but, in the latter, not later than 60 days from notice of the
judgment, order or resolution assailed.

The well-established rule is that the motion for reconsideration is an

indispensable condition before an aggrieved party can resort to the special
civil action for certiorari under Rule 65 of the Rules of Court. The filing of
the motion for reconsideration before the resort to certiorari will lie is
intended to afford to the public respondent the opportunity to correct any
actual or fancied error attributed to it by way of re-examination of the legal
and factual aspects of the case.

A perusal of the exceptional circumstances that jurisprudence has laid

down shows that none of the foregoing exceptions was applicable herein.
Hence, Causing should have filed the motion for reconsideration, especially
because there was nothing in the COMELEC Rules of Procedure that
precluded the filing of the motion for reconsideration in election offense
cases.

22. CERAFICA VS. Kimberly filed her COC for Councilor, City
COMELEC of Taguig for the 2013 Elections. Her COC
[G.R. No. 205136 stated that she was born on 29 October
December 2, 2014] 1992, or that she will be twenty (20)
years of age on the day of the elections, in
contravention of the requirement that
1. Whether or not Oliva can substitute Kimberly.
2. Whether or not there was lack of due process.
1. Yes. In declaring that Kimberly, being under age, could not be
considered to have filed a valid COC and, thus, could not be validly
substituted by Olivia, we find that the Comelec gravely abused its
discretion.
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one must be at least twenty-three (23)
years of age on the day of the elections as
set out in the Charter of the City of
Taguig.
Kimberly filed a sworn Statement of
Withdrawal of COC. Simultaneously,
Olivia filed her own COC as a substitute of
Kimberly. The Comelec recommended
the cancellation of Kimberly’s COC, and
consequently, the denial of the
substitution of Kimberly by Olivia.
Comelec argued that Olivia cannot
substitute Kimberly as the latter was
never an official candidate because she
was not eligible for the post by reason of
her age, and that, moreover, the COC that
Kimberly filed was invalid because it
contained a material misrepresentation
relating to her eligibility for the office she
seeks to be elected to.
Olivia countered that although Kimberly
may not be qualified to run for election
because of her age, it cannot be denied
that she still filed a valid COC and was,
thus, an official candidate who may be
substituted. Olivia also claimed that there
was no ground to cancel or deny
Kimberly’s COC on the ground of lack of
qualification and material
misrepresentation because she did not
misrepresent her birth date to qualify for
the position of councilor, and as there
was no deliberate attempt to mislead the
Firstly, subject to its authority over nuisance candidates and its
power to deny due course to or cancel COCs under Sec. 78, Batas
Pambansa (B.P.) Blg. 881, the Comelec has the ministerial duty to
receive and acknowledge receipt of COCs.
The duty of the Comelec to give due course to COCs filed in due form
is ministerial in character, and that while the Comelec may look into
patent defects in the COCs, it may not go into matters not appearing
on their face. The question of eligibility or ineligibility of a candidate
is thus beyond the usual and proper cognizance of the Comelec.
Under the express provision of Sec. 77 of B. P. Blg. 881, not just any
person, but only "an official candidate of a registered or accredited
political party" may be substituted. In the case at bar, Kimberly was
an official nominee of the Liberal Party; thus, she can be validly
substituted.
The next question then is whether Olivia complied with all of the
requirements for a valid substitution; we answer in the affirmative.
First, there was a valid withdrawal of Kimberly’s COC after the last
day for the filing of COCs; second, Olivia belongs to and is certified to
by the same political party to which Kimberly belongs; and third,
Olivia filed her COC not later than mid-day of election day.
[See notes. Luna vs. COMELEC]
2. Yes. In cancelling Kimberly’s COC and denying the latter’s
substitution by Olivia, and absent any petition to deny due course to
or cancel said COC, the Court finds that the Comelec once more
gravely abused its discretion. The Court reminds the Comelec that,
inthe exercise of it adjudicatory or quasi-judicial powers, the
Constitution mandates it to hear and decide cases first by Division
and, upon motion for reconsideration, by the En Banc.
Where a power rests in judgment or discretion, so that it is of
42
electorate, which is precisely why she
withdrew her COC upon learning that she
was not qualified.
judicial nature or character, but does not involve the exercise of
functions of a judge, or is conferred upon an officer other than a
judicial officer, it is deemed quasi-judicial. As cancellation
proceedings involve the exercise of quasi judicial functions of the
Comelec, the Comelec in Division should have first decided this case.
Under Section 3, Rule 23 of the 1993 COMELEC Rules of Procedure, a
petition for the denial or cancellation of a certificate of
candidacy must be heard summarily after due notice. It is thus
clear that cancellation proceedings involve the exercise of the quasi-
judicial functions of the COMELEC which the COMELEC in division
should first decide. More so in this case where the cancellation
proceedings originated not from a petition but from a report of the
election officer regarding the lack of qualification of the candidate in
the barangay election. The COMELEC en bane cannot short cut the
proceedings by acting on the case without a prior action by a
division because it denies due process to the candidate. (Emphasis
supplied.)

The determination of whether a candidate is eligible for the position

he is seeking involves a determination of fact where parties must be
allowed to adduce evidence in support of their contentions. We thus
caution the Comelec against its practice of impetuous cancellation of
COCs via minute resolutions adopting the recommendations of its
Law Department when the situation properly calls for the case's
referral to a Division for summary hearing.

NOTES:
1. Important.
In Luna v. Comelec, where the candidate, who was also under age,
withdrew his COC before election day and was substituted by a
qualified candidate, we declared that suchs ubstitution was valid.
The Court eloquently explained:

The COMELEC acted with grave abuse of discretion amounting to

lack or excess of jurisdiction in declaring that Hans Roger, being
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under age, could not be considered to have filed a valid certificate of
candidacy and, thus, could not be validly substituted by Luna. The
COMELEC may not, by itself, without the proper proceedings, deny
due course to or cancel a certificate of candidacy filed in due form. In
Sanchez vs. Del Rosario, the Court ruled that the question of
eligibility or ineligibility of a candidate for non-age is beyond the
usual and proper cognizance of the COMELEC.

Section 74 of the Election Code provides that the certificate of

candidacy shall state, among others, the date of birth of the person
filing the certificate. Section 78 of the Election Code provides that
in case a person filing a certificate of candidacy has committed false
material representation, a verified petition to deny due course to
or cancel the certificate of candidacy of said person may be filed
at any time not later than 25 days from the time of filing of the
certificate of candidacy.

If Hans Roger made a material misrepresentation as to his date of

birth or age in his certificate of candidacy, his eligibility may only be
impugned through a verified petition to deny due course to or cancel
such certificate of candidacy under Section 78 of the Election Code.

In this case, there was no petition to deny due course to or cancel the
certificate of candidacyof Hans Roger. The COMELEC only declared
that Hans Roger did not file a valid certificate of candidacy and, thus,
was not a valid candidate in the petition to deny due course to or
cancel Luna’s certificate of candidacy. In effect, the COMELEC,
without the proper proceedings, cancelled Hans Roger’s certificate of
candidacy and declared the substitution by Luna invalid.

It would have been different if there was a petition to deny due

course to or cancel Hans Roger’s certificate of candidacy. For if the
COMELEC cancelled Hans Roger’s certificate of candidacy after the
proper proceedings, then he is no candidate at all and there can be
no substitution of a person whose certificate of candidacy has been
cancelled and denied due course. However, Hans Roger’s
44
 certificate of candidacy was never cancelled or denied due
course by the COMELEC.

Moreover, Hans Roger already withdrew his certificate of

candidacy before the COMELEC declared that he was not a valid
candidate. Therefore, unless Hans Roger’s certificate of candidacy
was denied due course or cancelled in accordance with Section 78 of
the Election Code, Hans Roger’s certificate of candidacy was valid
and he may be validly substituted by Luna.

2. Sec. 76. Ministerial duty of receiving and acknowledging receipt. –

The Commission, provincial election supervisor, election registrar or
officer designated by the Commission or the board of election
inspectors under the succeeding section shall have the ministerial
duty to receive and acknowledge receipt of the certificate of
candidacy.

3. Sec. 77. Candidates in case of death, disqualification or withdrawal

of another. – If after the last day for the filing of certificates of
candidacy, an official candidate of a registered or accredited
politicalparty dies, withdraws or is disqualified for any cause, only a
person belonging to, and certified by, the same political party may
file a certificate of candidacy to replace the candidate who died,
withdrew or was disqualified. The substitute candidate nominated
by the political party concerned may file his certificate of candidacy
for the office affected in accordance with the preceding sections not
later thanmid-day of election day of the election. If the death,
withdrawal or disqualification should occur between the day before
the election and midday of election day, said certificate may be filed
with any board of election inspectors in the political subdivision
where he is candidate or, in case of candidates to be voted for by the
entire electorate of the country, with the Commission.

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