G.R. No.
189698               December 1, 2009 For this purpose, the deadline for the filing of certificate of candidacy/petition
ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners,  than one hundred twenty (120) days before the elections: - Provided, That,
vs.
COMMISSION ON ELECTIONS, Respondent.
DECISION
NACHURA, J.:
In our predisposition to discover the "original intent" of a statute, courts
become the unfeeling pillars of the status quo. Little do we realize that
statutes or even constitutions are bundles of compromises thrown our way by
their framers. Unless we exercise vigilance, the statute may already be out of
tune and irrelevant to our day.1 It is in this light that we should address the
instant case.
Before the Court is a petition for prohibition and certiorari, with prayer for the
issuance of a temporary restraining order and a writ of preliminary injunction,
assailing Section 4(a) of Resolution No. 8678 of the Commission on
Elections (COMELEC). In view of pressing contemporary events, the petition
begs for immediate resolution.
The Antecedents
This controversy actually stems from the law authorizing the COMELEC to
use an automated election system (AES).
On December 22, 1997, Congress enacted Republic Act (R.A.) No. 8436,
entitled "AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO
USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998
NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL
AND LOCAL ELECTORAL EXERCISES, PROVIDING FUNDS THEREFOR
AND FOR OTHER PURPOSES." Section 11 thereof reads:
SEC. 11. Official Ballot.- The Commission shall prescribe the size and form
of the official ballot which shall contain the titles of the positions to be filled
and/or the propositions to be voted upon in an initiative, referendum or
plebiscite. Under each position, the names of candidates shall be arranged
alphabetically by surname and uniformly printed using the same type size. A
fixed space where the chairman of the Board of Election inspectors shall affix
his/her signature to authenticate the official ballot shall be provided.
Both sides of the ballots may be used when necessary.
for registration/manifestation to participate in the election shall not be later
any elective official, whether national or local, running for any office other
than the one which he/she is holding in a permanent capacity, except for
president and vice president, shall be deemed resigned only upon the start of
the campaign period corresponding to the position for which he/she is
running: Provided, further, That, unlawful acts or omissions applicable to a
candidate shall take effect upon the start of the aforesaid campaign period:
Provided, finally, That, for purposes of the May 11, 1998 elections, the
deadline for filing of the certificate of candidacy for the positions of President,
Vice President, Senators and candidates under the Party-List System as well
as petitions for registration and/or manifestation to participate in the Party-
List System shall be on February 9, 1998 while the deadline for the filing of
certificate of candidacy for other positions shall be on March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or the
Bangko Sentral ng Pilipinas at the price comparable with that of private
printers under proper security measures which the Commission shall adopt.
The Commission may contract the services of private printers upon
certification by the National Printing Office/Bangko Sentral ng Pilipinas that it
cannot meet the printing requirements. Accredited political parties and
deputized citizens' arms of the Commission may assign watchers in the
printing, storage and distribution of official ballots.
To prevent the use of fake ballots, the Commission through the Committee
shall ensure that the serial number on the ballot stub shall be printed in
magnetic ink that shall be easily detectable by inexpensive hardware and
shall be impossible to reproduce on a photocopying machine and that
identification marks, magnetic strips, bar codes and other technical and
security markings, are provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at
the rate of one (1) ballot for every registered voter with a provision of
additional four (4) ballots per precinct.2
Almost a decade thereafter, Congress amended the law on January 23, 2007
by enacting R.A. No. 9369, entitled "AN ACT AMENDING REPUBLIC ACT
NO. 8436, ENTITLED "AN ACT AUTHORIZING THE COMMISSION ON
ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN THE MAY
11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT
NATIONAL AND LOCAL ELECTORAL EXERCISES, TO ENCOURAGE
TRANSPARENCY, CREDIBILITY, FAIRNESS AND ACCURACY OF
ELECTIONS, AMENDING FOR THE PURPOSE BATAS PAMPANSA BLG.
881, AS AMEMDED, REPUBLIC ACT NO. 7166 AND OTHER RELATED
ELECTION LAWS, PROVIDING FUNDS THEREFOR AND FOR OTHER
PURPOSES." Section 13 of the amendatory law modified Section 11 of R.A.
No. 8436, thus:
SEC. 13. Section 11 of Republic Act No. 8436 is hereby amended to read as
follows:
Section 15. Official Ballot.- The Commission shall prescribe the format of the
electronic display and/or the size and form of the official ballot, which shall
contain the titles of the position to be filled and/or the propositions to be voted
upon in an initiative, referendum or plebiscite. Where practicable, electronic
displays must be constructed to present the names of all candidates for the
same position in the same page or screen, otherwise, the electronic displays
must be constructed to present the entire ballot to the voter, in a series of
sequential pages, and to ensure that the voter sees all of the ballot options
on all pages before completing his or her vote and to allow the voter to
review and change all ballot choices prior to completing and casting his or
her ballot. Under each position to be filled, the names of candidates shall be
arranged alphabetically by surname and uniformly indicated using the same
type size. The maiden or married name shall be listed in the official ballot, as
preferred by the female candidate. Under each proposition to be vote upon,
the choices should be uniformly indicated using the same font and size.
A fixed space where the chairman of the board of election inspectors shall
affix his/her signature to authenticate the official ballot shall be provided.
For this purpose, the Commission shall set the deadline for the filing of
certificate of candidacy/petition of registration/manifestation to participate in
the election. Any person who files his certificate of candidacy within this
period shall only be considered as a candidate at the start of the campaign
period for which he filed his certificate of candidacy: Provided, That, unlawful
acts or omissions applicable to a candidate shall take effect only upon the
start of the aforesaid campaign period: Provided, finally, That any person
holding a public appointive office or position, including active members of the
armed forces, and officers and employees in government-owned or
-controlled corporations, shall be considered ipso facto resigned from his/her
office and must vacate the same at the start of the day of the filing of his/her
certificate of candidacy.
Political parties may hold political conventions to nominate their official
candidates within thirty (30) days before the start of the period for filing a
certificate of candidacy.
With respect to a paper-based election system, the official ballots shall be
printed by the National Printing Office and/or the Bangko Sentral ng
Pilipinas at the price comparable with that of private printers under proper
security measures which the Commission shall adopt. The Commission may
contract the services of private printers upon certification by the National
Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing
requirements. Accredited political parties and deputized citizens' arms of the
Commission shall assign watchers in the printing, storage and distribution of
official ballots.
To prevent the use of fake ballots, the Commission through the Committee
shall ensure that the necessary safeguards, such as, but not limited to, bar
codes, holograms, color shifting ink, microprinting, are provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at
the rate of one ballot for every registered voter with a provision of additional
three ballots per precinct.3
Pursuant to its constitutional mandate to enforce and administer election
laws, COMELEC issued Resolution No. 8678,4 the Guidelines on the Filing of
Certificates of Candidacy (CoC) and Nomination of Official Candidates of
Registered Political Parties in Connection with the May 10, 2010 National
and Local Elections. Sections 4 and 5 of Resolution No. 8678 provide:
SEC. 4. Effects of Filing Certificates of Candidacy.- a) Any person holding a
public appointive office or position including active members of the Armed
Forces of the Philippines, and other officers and employees in government-
owned or controlled corporations, shall be considered ipso facto resigned
from his office upon the filing of his certificate of candidacy.
b) Any person holding an elective office or position shall not be considered
resigned upon the filing of his certificate of candidacy for the same or any
other elective office or position.
SEC. 5. Period for filing Certificate of Candidacy.- The certificate of
candidacy shall be filed on regular days, from November 20 to 30, 2009,
during office hours, except on the last day, which shall be until midnight.
Alarmed that they will be deemed ipso facto resigned from their offices the
moment they file their CoCs, petitioners Eleazar P. Quinto and Gerino A.
Tolentino, Jr., who hold appointive positions in the government and who
intend to run in the coming elections,5 filed the instant petition for prohibition
and certiorari, seeking the declaration of the afore-quoted Section 4(a) of
Resolution No. 8678 as null and void.
The Petitioners' Contention
Petitioners contend that the COMELEC gravely abused its discretion when it
issued the assailed Resolution. They aver that the advance filing of CoCs for
the 2010 elections is intended merely for the purpose of early printing of the
official ballots in order to cope with time limitations. Such advance filing does
not automatically make the person who filed the CoC a candidate at the
moment of filing. In fact, the law considers him a candidate only at the start of
the campaign period. Petitioners then assert that this being so, they should
not be deemed ipso facto resigned from their government offices when they
file their CoCs, because at such time they are not yet treated by law as
candidates. They should be considered resigned from their respective offices
only at the start of the campaign period when they are, by law, already
considered as candidates.6
Petitioners also contend that Section 13 of R.A. No. 9369, the basis of the
assailed COMELEC resolution, contains two conflicting provisions. These
must be harmonized or reconciled to give effect to both and to arrive at a
declaration that they are not ipso facto resigned from their positions upon the
filing of their CoCs.7
Petitioners further posit that the provision considering them as ipso facto
resigned from office upon the filing of their CoCs is discriminatory and
violates the equal protection clause in the Constitution.8
The Respondent's Arguments
On the procedural aspect of the petition, the Office of the Solicitor General
(OSG), representing respondent COMELEC, argues that petitioners have no
legal standing to institute the suit." Petitioners have not yet filed their CoCs,
hence, they are not yet affected by the assailed provision in the COMELEC
resolution. The OSG further claims that the petition is premature or unripe for
judicial determination." Petitioners have admitted that they are merely
planning to file their CoCs for the coming 2010 elections. Their interest in the
present controversy is thus merely speculative and contingent upon the filing
of the same. The OSG likewise contends that petitioners availed of the wrong
remedy. They are questioning an issuance of the COMELEC made in the
exercise of the latter's rule-making power. Certiorari under Rule 65 is then an
improper remedy.9
On the substantive aspect, the OSG maintains that the COMELEC did not
gravely abuse its discretion in phrasing Section 4(a) of Resolution No. 8678
for it merely copied what is in the law. The OSG, however, agrees with
petitioners that there is a conflict in Section 13 of R.A. No. 9369 that should
be resolved. According to the OSG, there seems to be no basis to consider
appointive officials as ipso facto resigned and to require them to vacate their
positions on the same day that they file their CoCs, because they are not yet
considered as candidates at that time. Further, this - deemed resigned-
provision existed in Batas Pambansa Bilang (B.P. Blg.) 881, and no longer
finds a place in our present election laws with the innovations brought about
by the automated system.10
Our Ruling
I.
At first glance, the petition suffers from an incipient procedural defect. What
petitioners assail in their petition is a resolution issued by the COMELEC in
the exercise of its quasi-legislative power. Certiorari under Rule 65, in
relation to Rule 64, cannot be availed of, because it is a remedy to question
decisions, resolutions and issuances made in the exercise of a judicial or
quasi-judicial function.11 Prohibition is also an inappropriate remedy, because
what petitioners actually seek from the Court is a determination of the proper
construction of a statute and a declaration of their rights thereunder.
Obviously, their petition is one for declaratory relief,12 over which this Court
does not exercise original jurisdiction.13
However, petitioners raise a challenge on the constitutionality of the
questioned provisions of both the COMELEC resolution and the law. Given
this scenario, the Court may step in and resolve the instant petition.
The transcendental nature and paramount importance of the issues raised
and the compelling state interest involved in their early resolution the period
for the filing of CoCs for the 2010 elections has already started and hundreds
of civil servants intending to run for elective offices are to lose their
employment, thereby causing imminent and irreparable damage to their
means of livelihood and, at the same time, crippling the government's
manpowerfurther dictate that the Court must, for propriety, if only from a
sense of obligation, entertain the petition so as to expedite the adjudication of
all, especially the constitutional, issues.
In any event, the Court has ample authority to set aside errors of practice or
technicalities of procedure and resolve the merits of a case. Repeatedly
stressed in our prior decisions is the principle that the Rules were
promulgated to provide guidelines for the orderly administration of justice, not
to shackle the hand that dispenses it. Otherwise, the courts would be
consigned to being mere slaves to technical rules, deprived of their judicial
discretion.14
II.
To put things in their proper perspective, it is imperative that we trace the
brief history of the assailed provision. Section 4(a) of COMELEC Resolution
No. 8678 is a reproduction of the second proviso in the third paragraph of
Section 13 of R.A. No. 9369, which for ready reference is quoted as follows:
For this purpose, the Commission shall set the deadline for the filing of
certificate of candidacy/petition for registration/manifestation to participate in
the election. Any person who files his certificate of candidacy within this
period shall only be considered as a candidate at the start of the campaign
period for which he filed his certificate of candidacy: Provided, That, unlawful
acts or omissions applicable to a candidate shall take effect only upon the
start of the aforesaid campaign period: Provided, finally, That any person
holding a public appointive office or position, including active members of the
armed forces, and officers and employees in government-owned or
-controlled corporations, shall be considered ipso facto resigned from his/her
office and must vacate the same at the start of the day of the filing of his/her
certificate of candidacy.15
Notably, this proviso is not present in Section 11 of R.A. No. 8436, the law
amended by R.A. No. 9369. The proviso was lifted from Section 66 of B.P.
Blg. 881 or the Omnibus Election Code (OEC) of the Philippines, which
reads:
Sec. 66. Candidates holding appointive office or position.- Any person
holding a public appointive office or position, including active members of the
Armed Forces of the Philippines, and officers and employees in government-
owned or controlled corporations, shall be considered ipso facto resigned
from his office upon the filing of his certificate of candidacy.
It may be recalled-in inverse chronology-that earlier, Presidential Decree No.
1296, or the 1978 Election Code, contained a similar provision, thus'
SECTION 29. Candidates holding appointive office or position. - Every
person holding a public appointive office or position, including active
members of the Armed Forces of the Philippines, and officers and employees
in government-owned or controlled corporations, shall ipso facto cease in his
office or position on the date he files his certificate of candidacy. Members of
the Cabinet shall continue in the offices they presently hold notwithstanding
the filing of certificate of candidacy, subject to the pleasure of the President
of the Philippines.
Much earlier, R.A. No. 6388, or the Election Code of 1971, likewise stated in
its Section 23 the following:
SECTION 23. Candidates Holding Appointive Office or Position. - Every
person holding a public appointive office or position, including active
members of the Armed Forces of the Philippines and every officer or
employee in government-owned or controlled corporations, shall ipso facto
cease in his office or position on the date he files his certificate of candidacy:
Provided, That the filing of a certificate of candidacy shall not affect whatever
civil, criminal or administrative liabilities which he may have incurred.
Going further back in history, R.A. No. 180, or the Revised Election Code
approved on June 21, 1947, also provided that
SECTION 26. Automatic cessation of appointive officers and employees who
are candidates. - Every person holding a public appointive office or position
shall ipso facto cease in his office or position on the date he files his
certificate of candidacy.
During the Commonwealth era, Commonwealth Act (C.A.) No. 725, entitled
"AN ACT TO PROVIDE FOR THE NEXT ELECTION FOR PRESIDENT AND
VICE-PRESIDENT OF THE PHILIPPINES, SENATORS AND MEMBERS OF
THE HOUSE OF REPRESENTATIVES, AND APPROPRIATING THE
NECESSARY FUNDS THEREFOR," approved on January 5, 1946,
contained, in the last paragraph of its Section 2, the following:
A person occupying any civil office by appointment in the government or any
of its political subdivisions or agencies or government-owned or controlled
corporations, whether such office by appointive or elective, shall be
considered to have resigned from such office from the moment of the filing of
such certificate of candidacy.
Significantly, however, C.A. No. 666, entitled "AN ACT TO PROVIDE FOR
THE FIRST ELECTION FOR PRESIDENT AND VICE-PRESIDENT OF THE
PHILIPPINES, SENATORS, AND MEMBERS OF THE HOUSE OF
REPRESENTATIVES, UNDER THE CONSTITUTION AND THE
AMENDMENTS THEREOF," enacted without executive approval on June 22,
1941, the precursor of C.A. No. 725, only provided for automatic resignation
of elective, but not appointive, officials.
Nevertheless, C.A. No. 357, or the Election Code approved on August 22,
1938, had, in its Section 22, the same verbatim provision as Section 26 of
R.A. No. 180.
The earliest recorded Philippine law on the subject is Act No. 1582, or the
Election Law enacted by the Philippine Commission in 1907, the last
paragraph of Section 29 of which reads:
Sec. 29. Penalties upon officers.- x x x.
No public officer shall offer himself as a candidate for election, nor shall he
be eligible during the time that he holds said public office to election, at any
municipal, provincial or Assembly election, except for reelection to the
position which he may be holding, and no judge of the Court of First Instance,
justice of the peace, provincial fiscal, or officer or employee of the Bureau of
Constabulary or of the Bureau of Education shall aid any candidate or
influence in any manner or take any part in any municipal, provincial, or
Assembly election under penalty of being deprived of his office and being
disqualified to hold any public office whatever for a term of five years:
Provided, however, That the foregoing provisions shall not be construed to
deprive any person otherwise qualified of the right to vote at any election.
From this brief historical excursion, it may be gleaned that the second proviso
in the third paragraph of Section 13 of R.A. No. 9369- that any person
holding a public appointive office or position, including active members of the
armed forces, and officers, and employees in government-owned or
controlled corporations, shall be considered ipso facto resigned from his/her
office and must vacate the same at the start of the day of the filing of his/her
certificate of candidacy- traces its roots to the period of the American
occupation.
In fact, during the deliberations of Senate Bill No. 2231, the bill later to be
consolidated with House Bill No. 5352 and enacted as R.A. No. 9369,
Senator Richard Gordon, the principal author of the bill, acknowledged that
the said proviso in the proposed legislative measure is an old provision which
was merely copied from earlier existing legislation, thus'
Senator Osmeña.- May I just opine here and perhaps obtain the opinion of
the good Sponsor.- This reads like, "ANY PERSON HOLDING [means
currently] A PUBLIC APPOINTIVE POSITION" SHALL BE CONSIDERED
IPSO FACTO RESIGNED- [which means that the prohibition extends only to
appointive officials] "INCLUDING ACTIVE MEMBERS OF THE ARMED
FORCES, OFFICERS AND EMPLOYEES"- This is a prohibition, Mr.
President.- This means if one is chairman of SSS or PDIC, he is deemed
ipso facto resigned when he files his certificate of candidacy.- Is that the
intention
Senator Gordon.- This is really an old provision, Mr. President.
Senator Osmeña.- It is in bold letters, so I think it was a Committee
amendment.
Senator Gordon.- No, it has always been there.
Senator Osmeña.- I see.
Senator Gordon.- I guess the intention is not to give them undue advantage,
especially certain people.
Senator Osmeña.- All right.16
In that Senate deliberation, however, Senator Miriam Defensor-Santiago
expressed her concern over the inclusion of the said provision in the new
law, given that the same would be disadvantageous and unfair to potential
candidates holding appointive positions, while it grants a consequent
preferential treatment to elective officials, thus'
Senator Santiago.- On page 15, line 31, I know that this is a losing cause, so
I make this point more as a matter of record than of any feasible hope that it
can possibly be either accepted or if we come to a division of the House, it
will be upheld by the majority.
I am referring to page 15, line 21.- The proviso begins: "PROVIDED
FINALLY, THAT ANY PERSON HOLDING A PUBLIC APPOINTIVE OFFICE
- SHALL BE CONSIDERED IPSO FACTO RESIGNED FROM HIS/HER
OFFICE."
The point that I made during the appropriate debate in the past in this Hall is
that there is, for me, no valid reason for exempting elective officials from this
inhibition or disqualification imposed by the law.- If we are going to consider
appointive officers of the government, including AFP members and officers of
government-owned and controlled corporations, or any other member of the
appointive sector of the civil service, why should it not apply to the elective
sector for, after all, even senators and congressmen are members of the civil
service as well
Further, it is self-serving for the Senate, or for the Congress in general, to
give an exception to itself which is not available to other similarly situated
officials of government. Of course, the answer is, the reason why we are
special is that we are elected. Since we are imposing a disqualification on all
other government officials except ourselves, I think, it is the better part of
delicadeza to inhibit ourselves as well, so that if we want to stay as senators,
we wait until our term expires. But if we want to run for some other elective
office during our term, then we have to be considered resigned just like
everybody else. That is my proposed amendment. But if it is unacceptable to
the distinguished Sponsor, because of sensitivity to the convictions of the
rest of our colleagues, I will understand.
Senator Gordon. Mr. President, I think the suggestion is well-thought of.- It is
a good policy.- However, this is something that is already in the old law which
was upheld by the Supreme court in a recent case that the rider was not
upheld and that it was valid.17
The obvious inequality brought about by the provision on automatic
resignation of appointive civil servants must have been the reason why
Senator Recto proposed the inclusion of the following during the period of
amendments: "ANY PERSON WHO FILES HIS CERTIFICATE OF
CANDIDACY WITHIN THIS PERIOD SHALL ONLY BE CONSIDERED AS A
CANDIDATE AT THE START OF THE CAMPAIGN PERIOD FOR WHICH
HE FILED HIS COC."18 The said proviso seems to mitigate the situation of
disadvantage afflicting appointive officials by considering persons who filed
their CoCs as candidates only at the start of the campaign period, thereby,
conveying the tacit intent that persons holding appointive positions will only
be considered as resigned at the start of the campaign period when they are
already treated by law as candidates.
Parenthetically, it may be remembered that Section 67 of the OEC and
Section 11 of R.A. No. 8436 contained a similar provision on automatic
resignation of elective officials upon the filing of their CoCs for any office
other than that which they hold in a permanent capacity or for President or
Vice-President. However, with the enactment of R.A. No. 9006, or the Fair
Election Act,19 in 2001, this provision was repealed by Section 1420 of the
said act. There was, thus, created a situation of obvious discrimination
against appointive officials who were deemed ipso facto resigned from their
offices upon the filing of their CoCs, while elective officials were not.
This
᳠ situation was incidentally addressed by the Court in Farv.
᳠ The Executive
Secretary21 when it ruled that
Section 14 of Rep. Act No. 9006
Is Not Violative of the Equal
Protection Clause of the Constitution
The petitioners' contention, that the repeal of Section 67 of the Omnibus
Election Code pertaining to elective officials gives undue benefit to such
officials as against the appointive ones and violates the equal protection
clause of the constitution, is tenuous.
The equal protection of the law clause in the Constitution is not absolute, but
is subject to reasonable classification.- If the groupings are characterized by
substantial distinctions that make real differences, one class may be treated
and regulated differently from the other. The Court has explained the nature
of the equal protection guarantee in this manner:
The equal protection of the law clause is against undue favor and individual
or class privilege, as well as hostile discrimination or the oppression of
inequality.- It is not intended to prohibit legislation which is limited either in
the object to which it is directed or by territory within which it is to operate.- It
does not demand absolute equality among residents; it merely requires that
all persons shall be treated alike, under like circumstances and conditions
both as to privileges conferred and liabilities enforced.- The equal protection
clause is not infringed by legislation which applies only to those persons
falling within a specified class, if it applies alike to all persons within such
class, and reasonable grounds exist for making a distinction between those
who fall within such class and those who do not.
Substantial distinctions clearly exist between elective officials and appointive
officials. The former occupy their office by virtue of the mandate of the
electorate. They are elected to an office for a definite term and may be
removed therefrom only upon stringent conditions. On the other hand,
appointive officials hold their office by virtue of their designation thereto by an
appointing authority.- Some appointive officials hold their office in a
permanent capacity and are entitled to security of tenure while others serve
at the pleasure of the appointing authority.
Another substantial distinction between the two sets of officials is that under
Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book
V of the Administrative Code of 1987 (Executive Order No. 292), appointive
officials, as officers and employees in the civil service, are strictly prohibited
from engaging in any partisan political activity or take part in any election
except to vote.- Under the same provision, elective officials, or officers or
employees holding political offices, are obviously expressly allowed to take
part in political and electoral activities.
By repealing Section 67 but retaining Section 66 of the Omnibus Election
Code, the legislators deemed it proper to treat these two classes of officials
differently with respect to the effect on their tenure in the office of the filing of
the certificates of candidacy for any position other than those occupied by
them.- Again, it is not within the power of the Court to pass upon or look into
the wisdom of this classification.
Since the classification justifying Section 14 of Rep. Act No. 9006, i.e.,
elected officials vis-a-vis appointive officials, is anchored upon material and
significant distinctions and all the persons belonging under the same
classification are similarly treated, the equal protection clause of the
Constitution is, thus, not infringed.22
However, it must be remembered that the Court, in Fari᳼/i>, was intently
focused on the main issue of whether the repealing clause in the Fair
Election Act was a constitutionally proscribed rider, in that it unwittingly failed
to ascertain with stricter scrutiny the impact of the retention of the provision
on automatic resignation of persons holding appointive positions (Section 66)
in the OEC, vis-୶ is the equal protection clause.- Moreover, the Court's vision
᳠in Fari/i>
᳠ was shrouded by the fact that petitioners therein, Fari᳠ et al., never
posed a direct challenge to the constitutionality of Section 66 of the OEC.
᳠Faret
᳠ al. rather merely questioned, on constitutional grounds, the repealing
clause, or Section 14 of the Fair Election Act. The Court's afore-quoted
declaration in Fari᳼/i> may then very well be considered as an obiter dictum.
III.
The instant case presents a rare opportunity for the Court, in view of the
constitutional challenge advanced by petitioners, once and for all, to settle
the issue of whether the second proviso in the third paragraph of Section 13
of R.A. No. 9369, a reproduction of Section 66 of the OEC, which, as shown
above, was based on provisions dating back to the American occupation, is
violative of the equal protection clause.
But before delving into the constitutional issue, we shall first address the
issues on legal standing and on the existence of an actual controversy.
Central to the determination of locus standi is the question of whether a party
has alleged such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult
constitutional questions.23 In this case, petitioners allege that they will be
directly affected by COMELEC Resolution No. 8678 for they intend, and they
all have the qualifications, to run in the 2010 elections. The OSG, for its part,
contends that since petitioners have not yet filed their CoCs, they are not yet
candidates; hence, they are not yet directly affected by the assailed provision
in the COMELEC resolution.
The Court, nevertheless, finds that, while petitioners are not yet candidates,
they have the standing to raise the constitutional challenge, simply because
they are qualified voters. A restriction on candidacy, such as the challenged
measure herein, affects the rights of voters to choose their public officials.
The rights of voters and the rights of candidates do not lend themselves to
neat separation; laws that affect candidates always have at least some
theoretical, correlative effect on voters.24 The Court believes that both
candidates and voters may challenge, on grounds of equal protection, the
assailed measure because of its impact on voting rights.25
In any event, in recent cases, this Court has relaxed the stringent direct injury
test and has observed a liberal policy allowing ordinary citizens, members of
Congress, and civil organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings.26
We have also stressed in our prior decisions that the exercise by this Court of
judicial power is limited to the determination and resolution of actual cases
and controversies.27 The Court, in this case, finds that an actual case or
controversy exists between the petitioners and the COMELEC, the body
charged with the enforcement and administration of all election laws.
Petitioners have alleged in a precise manner that they would engage in the
very acts that would trigger the enforcement of the provisionthey would file
their CoCs and run in the 2010 elections. Given that the assailed provision
provides for ipso facto resignation upon the filing of the CoC, it cannot be
said that it presents only a speculative or hypothetical obstacle to petitioners'
candidacy.28
IV.
Having hurdled what the OSG posed as obstacles to judicial review, the
Court now delves into the constitutional challenge.
It is noteworthy to point out that the right to run for public office touches on
two fundamental freedoms, those of expression and of association. This
premise is best explained in Mancuso v. Taft,29 viz.:
Freedom of expression guarantees to the individual the opportunity to write a
letter to the local newspaper, speak out in a public park, distribute handbills
advocating radical reform, or picket an official building to seek redress of
grievances. All of these activities are protected by the First Amendment if
done in a manner consistent with a narrowly defined concept of public order
and safety. The choice of means will likely depend on the amount of time and
energy the individual wishes to expend and on his perception as to the most
effective method of projecting his message to the public. But interest and
commitment are evolving phenomena. What is an effective means for protest
at one point in time may not seem so effective at a later date. The dilettante
who participates in a picket line may decide to devote additional time and
resources to his expressive activity. As his commitment increases, the means
of effective expression changes, but the expressive quality remains constant.
He may decide to lead the picket line, or to publish the newspaper. At one
point in time he may decide that the most effective way to give expression to
his views and to get the attention of an appropriate audience is to become a
candidate for public office-means generally considered among the most
appropriate for those desiring to effect change in our governmental systems.
He may seek to become a candidate by filing in a general election as an
independent or by seeking the nomination of a political party. And in the latter
instance, the individual's expressive activity has two dimensions: besides
urging that his views be the views of the elected public official, he is also
attempting to become a spokesman for a political party whose substantive
program extends beyond the particular office in question. But Cranston has
said that a certain type of its citizenry, the public employee, may not become
a candidate and may not engage in any campaign activity that promotes
himself as a candidate for public office. Thus the city has stifled what may be
the most important expression an individual can summon, namely that which
he would be willing to effectuate, by means of concrete public action, were he
to be selected by the voters.
It is impossible to ignore the additional fact that the right to run for office also
affects the freedom to associate. In Williams v. Rhodes, supra, the Court
used strict review to invalidate an Ohio election system that made it virtually
impossible for third parties to secure a place on the ballot. The Court found
that the First Amendment protected the freedom to associate by forming and
promoting a political party and that that freedom was infringed when the state
effectively denied a party access to its electoral machinery. The Cranston
charter provision before us also affects associational rights, albeit in a slightly
different way. An individual may decide to join or participate in an
organization or political party that shares his beliefs. He may even form a
new group to forward his ideas. And at some juncture his supporters and
fellow party members may decide that he is the ideal person to carry the
group's standard into the electoral fray. To thus restrict the options available
to political organization as the Cranston charter provision has done is to limit
the effectiveness of association; and the freedom to associate is intimately
related with the concept of making expression effective. Party access to the
ballot becomes less meaningful if some of those selected by party machinery
to carry the party's programs to the people are precluded from doing so
because those nominees are civil servants.
Whether the right to run for office is looked at from the point of view of
individual expression or associational effectiveness, wide opportunities exist
for the individual who seeks public office. The fact of candidacy alone may
open previously closed doors of the media. The candidate may be invited to
discuss his views on radio talk shows; he may be able to secure equal time
on television to elaborate his campaign program; the newspapers may cover
his candidacy; he may be invited to debate before various groups that had
theretofore never heard of him or his views. In short, the fact of candidacy
opens up a variety of communicative possibilities that are not available to
even the most diligent of picketers or the most loyal of party followers. A view
today, that running for public office is not an interest protected by the First
Amendment, seems to us an outlook stemming from an earlier era when
public office was the preserve of the professional and the wealthy.
Consequently we hold that candidacy is both a protected First Amendment
right and a fundamental interest. Hence any legislative classification that
significantly burdens that interest must be subjected to strict equal protection
review.30
Here, petitioners' interest in running for public office, an interest protected by
Sections 4 and 8 of Article III of the Constitution, is breached by the proviso
in Section 13 of R.A. No. 9369. It is now the opportune time for the Court to
strike down the said proviso for being violative of the equal protection clause
and for being overbroad.
In considering persons holding appointive positions as ipso facto resigned
from their posts upon the filing of their CoCs, but not considering as resigned
all other civil servants, specifically the elective ones, the law unduly
discriminates against the first class. The fact alone that there is substantial
distinction between those who hold appointive positions and those occupying
elective posts, does not justify such differential treatment.
In order that there can be valid classification so that a discriminatory
governmental act may pass the constitutional norm of equal protection, it is
necessary that the four (4) requisites of valid classification be complied with,
namely:
(1) It must be based upon substantial distinctions;
(2) It must be germane to the purposes of the law;
(3) It must not be limited to existing conditions only; and
(4) It must apply equally to all members of the class.
The first requirement means that there must be real and substantial
differences between the classes treated differently. As illustrated in the fairly
recent Mirasol v. Department of Public Works and Highways,31 a real and
substantial distinction exists between a motorcycle and other motor vehicles
sufficient to justify its classification among those prohibited from plying the toll
ways. Not all motorized vehicles are created equal a two-wheeled vehicle is
less stable and more easily overturned than a four-wheel vehicle.
Nevertheless, the classification would still be invalid if it does not comply with
the second requirement if it is not germane to the purpose of the law. Justice
Isagani A. Cruz (Ret.), in his treatise on constitutional law, explains,
The classification, even if based on substantial distinctions, will still be invalid
if it is not germane to the purpose of the law. To illustrate, the accepted
difference in physical stamina between men and women will justify the
prohibition of the latter from employment as miners or stevedores or in other
heavy and strenuous work. On the basis of this same classification, however,
the law cannot provide for a lower passing average for women in the bar
examinations because physical strength is not the test for admission to the
legal profession. Imported cars may be taxed at a higher rate than locally
assembled automobiles for the protection of the national economy, but their
difference in origin is no justification for treating them differently when it
comes to punishing violations of traffic regulations. The source of the vehicle
has no relation to the observance of these rules.32
The third requirement means that the classification must be enforced not only
for the present but as long as the problem sought to be corrected continues
to exist. And, under the last requirement, the classification would be regarded
as invalid if all the members of the class are not treated similarly, both as to
rights conferred and obligations imposed.33
Applying the four requisites to the instant case, the Court finds that the
differential treatment of persons holding appointive offices as opposed to
those holding elective ones is not germane to the purposes of the law.
The obvious reason for the challenged provision is to prevent the use of a
governmental position to promote one's candidacy, or even to wield a
dangerous or coercive influence on the electorate. The measure is further
aimed at promoting the efficiency, integrity, and discipline of the public
service by eliminating the danger that the discharge of official duty would be
motivated by political considerations rather than the welfare of the
public.34 The restriction is also justified by the proposition that the entry of
civil servants to the electoral arena, while still in office, could result in neglect
or inefficiency in the performance of duty because they would be attending to
their campaign rather than to their office work.
If we accept these as the underlying objectives of the law, then the assailed
provision cannot be constitutionally rescued on the ground of valid
classification. Glaringly absent is the requisite that the classification must be
germane to the purposes of the law. Indeed, whether one holds an appointive
office or an elective one, the evils sought to be prevented by the measure
remain. For example, the Executive Secretary, or any Member of the Cabinet
for that matter, could wield the same influence as the Vice-President who at
the same time is appointed to a Cabinet post (in the recent past, elected
Vice-Presidents were appointed to take charge of national housing, social
welfare development, interior and local government, and foreign affairs). With
the fact that they both head executive offices, there is no valid justification to
treat them differently when both file their CoCs for the elections. Under the
present state of our law, the Vice-President, in the example, running this
time, let us say, for President, retains his position during the entire election
period and can still use the resources of his office to support his campaign.
As to the danger of neglect, inefficiency or partisanship in the discharge of
the functions of his appointive office, the inverse could be just as true and
compelling. The public officer who files his certificate of candidacy would be
driven by a greater impetus for excellent performance to show his fitness for
the position aspired for.
Mancuso v. Taft,35 cited above, explains that the measure on automatic
resignation, which restricts the rights of civil servants to run for officea right
inextricably linked to their freedom of expression and association, is not
reasonably necessary to the satisfaction of the state interest. Thus, in striking
down a similar measure in the United States, Mancuso succinctly declares'
In proceeding to the second stage of active equal protection review, however,
we do see some contemporary relevance of the Mitchell decision. National
Ass'n of Letter Carriers, supra. In order for the Cranston charter provision to
withstand strict scrutiny, the city must show that the exclusion of all
government employees from candidacy is necessary to achieve a compelling
state interest. And, as stated in Mitchell and other cases dealing with similar
statutes, see Wisconsin State Employees, supra; Broadrick, supra,
government at all levels has a substantial interest in protecting the integrity of
its civil service. It is obviously conceivable that the impartial character of the
civil service would be seriously jeopardized if people in positions of authority
used their discretion to forward their electoral ambitions rather than the public
welfare. Similarly if a public employee pressured other fellow employees to
engage in corrupt practices in return for promises of post-election reward, or
if an employee invoked the power of the office he was seeking to extract
special favors from his superiors, the civil service would be done irreparable
injury. Conversely, members of the public, fellow-employees, or supervisors
might themselves request favors from the candidate or might improperly
adjust their own official behavior towards him. Even if none of these abuses
actually materialize, the possibility of their occurrence might seriously erode
the public's confidence in its public employees. For the reputation of
impartiality is probably as crucial as the impartiality itself; the knowledge that
a clerk in the assessor's office who is running for the local zoning board has
access to confidential files which could provide pressure points for furthering
his campaign is destructive regardless of whether the clerk actually takes
advantage of his opportunities. For all of these reasons we find that the state
indeed has a compelling interest in maintaining the honesty and impartiality
of its public work force.
We do not, however, consider the exclusionary measure taken by Cranston-a
flat prohibition on office-seeking of all kinds by all kinds of public employees-
as even reasonably necessary to satisfaction of this state interest. As Justice
Marshall pointed out in Dunn v. Blumstein, [s]tatutes affecting constitutional
rights must be drawn with precision. For three sets of reasons we conclude
that the Cranston charter provision pursues its objective in a far too heavy-
handed manner and hence must fall under the equal protection clause. First,
we think the nature of the regulation-a broad prophylactic rule-may be
unnecessary to fulfillment of the city's objective. Second, even granting some
sort of prophylactic rule may be required, the provision here prohibits
candidacies for all types of public office, including many which would pose
none of the problems at which the law is aimed. Third, the provision excludes
the candidacies of all types of public employees, without any attempt to limit
exclusion to those employees whose positions make them vulnerable to
corruption and conflicts of interest.
There is thus no valid justification to treat appointive officials differently from
the elective ones. The classification simply fails to meet the test that it should
be germane to the purposes of the law. The measure encapsulated in the
second proviso of the third paragraph of Section 13 of R.A. No. 9369 and in
Section 66 of the OEC violates the equal protection clause.
V.
The challenged provision also suffers from the infirmity of being overbroad.
First, the provision pertains to all civil servants holding appointive posts
without distinction as to whether they occupy high positions in government or
not. Certainly, a utility worker in the government will also be considered as
ipso facto resigned once he files his CoC for the 2010 elections. This
scenario is absurd for, indeed, it is unimaginable how he can use his position
in the government to wield influence in the political world.
While it may be admitted that most appointive officials who seek public
elective office are those who occupy relatively high positions in government,
laws cannot be legislated for them alone, or with them alone in mind. For the
right to seek public elective office is universal, open and unrestrained, subject
only to the qualification standards prescribed in the Constitution and in the
laws. These qualifications are, as we all know, general and basic so as to
allow the widest participation of the citizenry and to give free rein for the
pursuit of one's highest aspirations to public office. Such is the essence of
democracy.
Second, the provision is directed to the activity of seeking any and all public
offices, whether they be partisan or nonpartisan in character, whether they be
in the national, municipal or barangay level. Congress has not shown a
compelling state interest to restrict the fundamental right involved on such a
sweeping scale.36
Specific evils require specific treatments, not through overly broad measures
that unduly restrict guaranteed freedoms of the citizenry. After all,
sovereignty resides in the people, and all governmental power emanates
from them.
Mancuso v. Taft,37 on this point, instructs
As to approaches less restrictive than a prophylactic rule, there exists the
device of the leave of absence. Some system of leaves of absence would
permit the public employee to take time off to pursue his candidacy while
assuring him his old job should his candidacy be unsuccessful. Moreover, a
leave of absence policy would eliminate many of the opportunities for
engaging in the questionable practices that the statute is designed to
prevent. While campaigning, the candidate would feel no conflict between his
desire for election and his publicly entrusted discretion, nor any conflict
between his efforts to persuade the public and his access to confidential
documents. But instead of adopting a reasonable leave of absence policy,
Cranston has chosen a provision that makes the public employee cast off the
security of hard-won public employment should he desire to compete for
elected office.
The city might also promote its interest in the integrity of the civil service by
enforcing, through dismissal, discipline, or criminal prosecution, rules or
statutes that treat conflict of interests, bribery, or other forms of official
corruption. By thus attacking the problem directly, instead of using a broad
prophylactic rule, the city could pursue its objective without unduly burdening
the First Amendment rights of its employees and the voting rights of its
citizens. Last term in Dunn v. Blumstein, the Supreme Court faced an
analogous question when the State of Tennessee asserted that the interest
of ballot box purity justified its imposition of one year and three month
residency requirements before a citizen could vote. Justice Marshall
stated, inter alia, that Tennessee had available a number of criminal statutes
that could be used to punish voter fraud without unnecessary infringement on
the newcomer's right to vote. Similarly, it appears from the record in this case
that the Cranston charter contains some provisions that might be used
against opportunistic public employees.
Even if some sort of prophylactic rule is necessary, we cannot say that
Cranston has put much effort into tailoring a narrow provision that attempts to
match the prohibition with the problem. The charter forbids a Cranston public
employee from running for any office, anywhere. The prohibition is not limited
to the local offices of Cranston, but rather extends to statewide offices and
even to national offices. It is difficult for us to see that a public employee
running for the United States Congress poses quite the same threat to the
civil service as would the same employee if he were running for a local office
where the contacts and information provided by his job related directly to the
position he was seeking, and hence where the potential for various abuses
was greater. Nor does the Cranston charter except the public employee who
works in Cranston but aspires to office in another local jurisdiction, most
probably his town of residence. Here again the charter precludes candidacies
which can pose only a remote threat to the civil service. Finally, the charter
does not limit its prohibition to partisan office-seeking, but sterilizes also
those public employees who would seek nonpartisan elective office. The
statute reviewed in Mitchell was limited to partisan political activity, and since
that time other courts have found the partisan-nonpartisan distinction a
material one. See Kinnear, supra; Wisconsin State Employees, supra; Gray
v. Toledo, supra. While the line between nonpartisan and partisan can often
be blurred by systems whose true characters are disguised by the names
given them by their architects, it seems clear that the concerns of a truly
partisan office and the temptations it fosters are sufficiently different from
those involved in an office removed from regular party politics to warrant
distinctive treatment in a charter of this sort.
The third and last area of excessive and overinclusive coverage of the
Cranston charter relates not to the type of office sought, but to the type of
employee seeking the office. As Justice Douglas pointed out in his dissent
in Mitchell, 330 U.S. at 120-126, 67 S.Ct. 556, restrictions on administrative
employees who either participate in decision-making or at least have some
access to information concerning policy matters are much more justifiable
than restrictions on industrial employees, who, but for the fact that the
government owns the plant they work in, are, for purposes of access to
official information, identically situated to all other industrial workers. Thus, a
worker in the Philadelphia mint could be distinguished from a secretary in an
office of the Department of Agriculture; so also could a janitor in the public
schools of Cranston be distinguished from an assistant comptroller of the
same city. A second line of distinction that focuses on the type of employee is
illustrated by the cases of Kinnear and Minielly, supra. In both of these cases
a civil service deputy decided to run for the elected office of sheriff. The
courts in both cases felt that the no-candidacy laws in question were much
too broad and indicated that perhaps the only situation sensitive enough to
justify a flat rule was one in which an inferior in a public office electorally
challenged his immediate superior. Given all these considerations, we think
Cranston has not given adequate attention to the problem of narrowing the
terms of its charter to deal with the specific kinds of conflict-of-interest
problems it seeks to avoid.
We also do not find convincing the arguments that after-hours campaigning
will drain the energy of the public employee to the extent that he is incapable
of performing his job effectively and that inevitable on-the-job campaigning
and discussion of his candidacy will disrupt the work of others. Although it is
indisputable that the city has a compelling interest in the performance of
official work, the exclusion is not well-tailored to effectuate that interest.
Presumably the city could fire the individual if he clearly shirks his
employment responsibilities or disrupts the work of others. Also, the
efficiency rationale common to both arguments is significantly underinclusive.
It applies equally well to a number of non-political, extracurricular activities
that are not prohibited by the Cranston charter. Finally, the connection
between after-hours campaigning and the state interest seems tenuous; in
many cases a public employee would be able to campaign aggressively and
still continue to do his job well.38
Incidentally, Clements v. Fashing39 sustained as constitutional a provision on
the automatic resignation of District Clerks, County Clerks, County Judges,
County Treasurers, Criminal District Attorneys, County Surveyors, Inspectors
of Hides and Animals, County Commissioners, Justices of the Peace,
Sheriffs, Assessors and Collectors of Taxes, District Attorneys, County
Attorneys, Public Weighers, and Constables if they announce their candidacy
or if they become candidates in any general, special or primary election.
In Clements, it may be readily observed that a provision treating differently
particular officials, as distinguished from all others, under a classification that
is germane to the purposes of the law, merits the stamp of approval from
American courts. Not, however, a general and sweeping provision, and more
so one violative of the second requisite for a valid classification, which is on
its face unconstitutional.
On a final note, it may not be amiss to state that the Americans, from whom
we copied the provision in question, had already stricken down a similar
measure for being unconstitutional. It is high-time that we, too, should follow
suit and, thus, uphold fundamental liberties over age-old, but barren,
restrictions to such freedoms.
WHEREFORE, premises considered, the petition is GRANTED. The second
proviso in the third paragraph of Section 13 of Republic Act No. 9369,
Section 66 of the Omnibus Election Code and Section 4(a) of COMELEC
Resolution No. 8678 are declared as UNCONSTITUTIONAL.
SO ORDERED.
G.R. No. 189698               February 22, 2010
ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners, 
vs.
COMMISSION ON ELECTIONS, Respondent.
 RESOLUTION
PUNO, C.J.:
Upon a careful review of the case at bar, this Court resolves to grant the
respondent Commission on Elections’ (COMELEC) motion for
reconsideration, and the movants-intervenors’ motions for
reconsideration-in-intervention, of this Court’s December 1, 2009
Decision (Decision).1
The assailed Decision granted the Petition for Certiorari and Prohibition
filed by Eleazar P. Quinto and Gerino A. Tolentino, Jr. and declared as
unconstitutional the second proviso in the third paragraph of Section 13
of Republic Act No. 9369,2 Section 66 of the Omnibus Election Code3 and
Section 4(a) of COMELEC Resolution No. 8678,4mainly on the ground
that they violate the equal protection clause of the Constitution and suffer
from overbreadth. The assailed Decision thus paved the way for public
appointive officials to continue discharging the powers, prerogatives and
functions of their office notwithstanding their entry into the political arena.
In support of their respective motions for reconsideration, respondent
COMELEC and movants-intervenors submit the following arguments:
(1) The assailed Decision is contrary to, and/or violative of, the
constitutional proscription against the participation of public
appointive officials and members of the military in partisan
political activity;
(2) The assailed provisions do not violate the equal protection
clause when they accord differential treatment to elective and
appointive officials, because such differential treatment rests on
material and substantial distinctions and is germane to the
purposes of the law;
(3) The assailed provisions do not suffer from the infirmity of
overbreadth; and
(4) There is a compelling need to reverse the assailed Decision,
as public safety and interest demand such reversal.
We find the foregoing arguments meritorious.
I.
Procedural Issues
First, we shall resolve the procedural issues on the timeliness of the
COMELEC’s motion for reconsideration which was filed on December 15,
2009, as well as the propriety of the motions for reconsideration-in-
intervention which were filed after the Court had rendered its December
1, 2009 Decision.
i. Timeliness of COMELEC’s Motion for Reconsideration
Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court,5 in relation
to Section 1, Rule 52 of the same rules,6COMELEC had a period of
fifteen days from receipt of notice of the assailed Decision within which to
move for its reconsideration. COMELEC received notice of the assailed
Decision on December 2, 2009, hence, had until December 17, 2009 to
file a Motion for Reconsideration.
The Motion for Reconsideration of COMELEC was timely filed. It was
filed on December 14, 2009. The corresponding Affidavit of Service (in
substitution of the one originally submitted on December 14, 2009) was
subsequently filed on December 17, 2009 – still within the reglementary
period.
ii. Propriety of the Motions for Reconsideration-in-Intervention
Section 1, Rule 19 of the Rules of Court provides:
A person who has legal interest in the matter in litigation or in the success
of either of the parties, or an interest against both, or is so situated as to
be adversely affected by a distribution or other disposition of property in
the custody of the court or of an officer thereof may, with leave of court,
be allowed to intervene in the action. The court shall consider whether or
not the intervention will unduly delay or prejudice the adjudication of the
rights of the original parties, and whether or not the intervenor’s rights
may be fully protected in a separate proceeding.
Pursuant to the foregoing rule, this Court has held that a motion for
intervention shall be entertained when the following requisites are
satisfied: (1) the would-be intervenor shows that he has a substantial
right or interest in the case; and (2) such right or interest cannot be
adequately pursued and protected in another proceeding.7
Upon the other hand, Section 2, Rule 19 of the Rules of Court provides
the time within which a motion for intervention may be filed, viz.:
SECTION 2. Time to intervene.– The motion for intervention may be filed
at any time before rendition of judgment by the trial court. A copy of the
pleading-in-intervention shall be attached to the motion and served on the
original parties. (italics supplied)
This rule, however, is not inflexible. Interventions have been allowed
even beyond the period prescribed in the Rule, when demanded by the
higher interest of justice. Interventions have also been granted to afford
indispensable parties, who have not been impleaded, the right to be
heard even after a decision has been rendered by the trial court,8 when
the petition for review of the judgment has already been submitted for
decision before the Supreme Court,9 and even where the assailed order
has already become final and executory.10 In Lim v. Pacquing,11 the
motion for intervention filed by the Republic of the Philippines was
allowed by this Court to avoid grave injustice and injury and to settle once
and for all the substantive issues raised by the parties.
In fine, the allowance or disallowance of a motion for intervention rests on
the sound discretion of the court12 after consideration of the appropriate
circumstances.13 We stress again that Rule 19 of the Rules of Court is a
rule of procedure whose object is to make the powers of the court fully
and completely available for justice.14 Its purpose is not to hinder or delay,
but to facilitate and promote the administration of justice.15
We rule that, with the exception of the IBP – Cebu City Chapter, all the
movants-intervenors may properly intervene in the case at bar.
First, the movants-intervenors have each sufficiently established a
substantial right or interest in the case.
As a Senator of the Republic, Senator Manuel A. Roxas has a right to
challenge the December 1, 2009 Decision, which nullifies a long
established law; as a voter, he has a right to intervene in a matter that
involves the electoral process; and as a public officer, he has a personal
interest in maintaining the trust and confidence of the public in its system
of government.
On the other hand, former Senator Franklin M. Drilon and Tom V.
Apacible are candidates in the May 2010 elections running against
appointive officials who, in view of the December 1, 2009 Decision, have
not yet resigned from their posts and are not likely to resign from their
posts. They stand to be directly injured by the assailed Decision, unless it
is reversed.
Moreover, the rights or interests of said movants-intervenors cannot be
adequately pursued and protected in another proceeding. Clearly, their
rights will be foreclosed if this Court’s Decision attains finality and forms
part of the laws of the land.
With regard to the IBP – Cebu City Chapter, it anchors its standing on the
assertion that "this case involves the constitutionality of elections laws for
this coming 2010 National Elections," and that "there is a need for it to be
allowed to intervene xxx so that the voice of its members in the legal
profession would also be heard before this Highest Tribunal as it resolves
issues of transcendental importance."16
Prescinding from our rule and ruling case law, we find that the IBP-Cebu
City Chapter has failed to present a specific and substantial interest
sufficient to clothe it with standing to intervene in the case at bar. Its
invoked interest is, in character, too indistinguishable to justify its
intervention.
We now turn to the substantive issues.
II.
Substantive Issues
The assailed Decision struck down Section 4(a) of Resolution 8678, the
second proviso in the third paragraph of Section 13 of Republic Act (RA)
9369, and Section 66 of the Omnibus Election Code, on the following
grounds:
(1) They violate the equal protection clause of the Constitution
because of the differential treatment of persons holding
appointive offices and those holding elective positions;
(2) They are overbroad insofar as they prohibit the candidacy of
all civil servants holding appointive posts: (a) without distinction
as to whether or not they occupy high/influential positions in the
government, and (b) they limit these civil servants’ activity
regardless of whether they be partisan or nonpartisan in
 character, or whether they be in the national, municipal or
barangay level; and
(3) Congress has not shown a compelling state interest to restrict
the fundamental right of these public appointive officials.
We grant the motions for reconsideration. We now rule that Section 4(a)
of Resolution 8678, Section 66 of the Omnibus Election Code, and the
second proviso in the third paragraph of Section 13 of RA 9369 are not
unconstitutional, and accordingly reverse our December 1, 2009
Decision.
III.
Section 4(a) of COMELEC Resolution 8678 Compliant with Law
Section 4(a) of COMELEC Resolution 8678 is a faithful reflection of the
present state of the law and jurisprudence on the matter, viz.:
Incumbent Appointive Official. - Under Section 13 of RA 9369, which
reiterates Section 66 of the Omnibus Election Code, any person holding a
public appointive office or position, including active members of the
Armed Forces of the Philippines, and officers and employees in
government-owned or -controlled corporations, shall be considered ipso
facto resigned from his office upon the filing of his certificate of
candidacy.
Incumbent Elected Official. – Upon the other hand, pursuant to Section
14 of RA 9006 or the Fair Election Act,17which repealed Section 67 of the
Omnibus Election Code18 and rendered ineffective Section 11 of R.A.
8436 insofar as it considered an elected official as resigned only upon the
start of the campaign period corresponding to the positions for which they
are running,19 an elected official is not deemed to have resigned from his
office upon the filing of his certificate of candidacy for the same or any
other elected office or position. In fine, an elected official may run for
another position without forfeiting his seat.
These laws and regulations implement Section 2(4), Article IX-B of the
1987 Constitution, which prohibits civil service officers and employees
from engaging in any electioneering or partisan political campaign.
The intention to impose a strict limitation on the participation of civil
service officers and employees in partisan political campaigns is
unmistakable. The exchange between Commissioner Quesada and
Commissioner Foz during the deliberations of the Constitutional
Commission is instructive:
MS. QUESADA.
xxxx
Secondly, I would like to address the issue here as provided in Section 1
(4), line 12, and I quote: "No officer or employee in the civil service shall
engage, directly or indirectly, in any partisan political activity." This is
almost the same provision as in the 1973 Constitution. However, we in
the government service have actually experienced how this provision has
been violated by the direct or indirect partisan political activities of many
government officials.
So, is the Committee willing to include certain clauses that would make
this provision more strict, and which would deter its violation?
MR. FOZ. Madam President, the existing Civil Service Law and the
implementing rules on the matter are more than exhaustive enough to
really prevent officers and employees in the public service from engaging
in any form of partisan political activity. But the problem really lies in
implementation because, if the head of a ministry, and even the superior
officers of offices and agencies of government will themselves violate the
constitutional injunction against partisan political activity, then no string of
words that we may add to what is now here in this draft will really
implement the constitutional intent against partisan political activity. x x
x20 (italics supplied)
To emphasize its importance, this constitutional ban on civil service
officers and employees is presently reflected and implemented by a
number of statutes. Section 46(b)(26), Chapter 7 and Section 55, Chapter
8 – both of Subtitle A, Title I, Book V of the Administrative Code of 1987 –
respectively provide in relevant part:
Section 44. Discipline: General Provisions:
xxxx
(b) The following shall be grounds for disciplinary action:
xxxx
(26) Engaging directly or indirectly in partisan political activities by one
holding a non-political office.
xxxx
Section 55. Political Activity. — No officer or employee in the Civil Service
including members of the Armed Forces, shall engage directly or
indirectly in any partisan political activity or take part in any election
except to vote nor shall he use his official authority or influence to coerce
the political activity of any other person or body. Nothing herein provided
shall be understood to prevent any officer or employee from expressing
his views on current political problems or issues, or from mentioning the
names of his candidates for public office whom he supports: Provided,
That public officers and employees holding political offices may take part
in political and electoral activities but it shall be unlawful for them to solicit
contributions from their subordinates or subject them to any of the acts
involving subordinates prohibited in the Election Code.
Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus Election Code)
further makes intervention by civil service officers and employees in
partisan political activities an election offense, viz.:
SECTION 261. Prohibited Acts. — The following shall be guilty of an
election offense:
xxxx
(i) Intervention of public officers and employees. — Any officer or
employee in the civil service, except those holding political offices; any
officer, employee, or member of the Armed Forces of the Philippines, or
any police force, special forces, home defense forces, barangay self-
defense units and all other para-military units that now exist or which may
hereafter be organized who, directly or indirectly, intervenes in any
election campaign or engages in any partisan political activity, except to
vote or to preserve public order, if he is a peace officer.
The intent of both Congress and the framers of our Constitution to limit
the participation of civil service officers and employees in partisan
political activities is too plain to be mistaken.
But Section 2(4), Article IX-B of the 1987 Constitution and the
implementing statutes apply only to civil servants holding apolitical
offices. Stated differently, the constitutional ban does not cover elected
officials, notwithstanding the fact that "[t]he civil service embraces all
branches, subdivisions, instrumentalities, and agencies of the
Government, including government-owned or controlled corporations with
original charters."21 This is because elected public officials, by the very
nature of their office, engage in partisan political activities almost all year
round, even outside of the campaign period.22 Political partisanship is the
inevitable essence of a political office, elective positions included.23
The prohibition notwithstanding, civil service officers and employees are
allowed to vote, as well as express their views on political issues, or
mention the names of certain candidates for public office whom they
support. This is crystal clear from the deliberations of the Constitutional
Commission, viz.:
MS. AQUINO: Mr. Presiding Officer, my proposed amendment is on page
2, Section 1, subparagraph 4, lines 13 and 14. On line 13, between the
words "any" and "partisan," add the phrase ELECTIONEERING AND
OTHER; and on line 14, delete the word "activity" and in lieu thereof
substitute the word CAMPAIGN.
May I be allowed to explain my proposed amendment?
THE PRESIDING OFFICER (Mr. Treñas): Commissioner Aquino may
proceed.
MS. AQUINO: The draft as presented by the Committee deleted the
phrase "except to vote" which was adopted in both the 1935 and 1973
Constitutions. The phrase "except to vote" was not intended as a
guarantee to the right to vote but as a qualification of the general
prohibition against taking part in elections.
Voting is a partisan political activity. Unless it is explicitly provided for as
an exception to this prohibition, it will amount to disenfranchisement. We
know that suffrage, although plenary, is not an unconditional right. In
other words, the Legislature can always pass a statute which can
withhold from any class the right to vote in an election, if public interest so
required. I would only like to reinstate the qualification by specifying the
prohibited acts so that those who may want to vote but who are likewise
prohibited from participating in partisan political campaigns or
electioneering may vote.
MR. FOZ: There is really no quarrel over this point, but please
understand that there was no intention on the part of the Committee to
disenfranchise any government official or employee. The elimination of
the last clause of this provision was precisely intended to protect the
members of the civil service in the sense that they are not being deprived
of the freedom of expression in a political contest. The last phrase or
clause might have given the impression that a government employee or
worker has no right whatsoever in an election campaign except to vote,
which is not the case. They are still free to express their views although
the intention is not really to allow them to take part actively in a political
campaign.24
IV.
Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66
of the Omnibus Election Code Do Not Violate the Equal Protection
Clause
We now hold that Section 4(a) of Resolution 8678, Section 66 of the
Omnibus Election Code, and the second proviso in the third paragraph of
Section 13 of RA 9369 are not violative of the equal protection clause of
the Constitution.
i. Fariñas, et al. v. Executive Secretary, et al. is Controlling
In truth, this Court has already ruled squarely on whether these deemed-
resigned provisions challenged in the case at bar violate the equal
protection clause of the Constitution in Fariñas, et al. v. Executive
Secretary, et al.25
In Fariñas, the constitutionality of Section 14 of the Fair Election Act, in
relation to Sections 66 and 67 of the Omnibus Election Code, was
assailed on the ground, among others, that it unduly discriminates
against appointive officials. As Section 14 repealed Section 67 (i.e., the
deemed-resigned provision in respect of elected officials) of the Omnibus
Election Code, elected officials are no longer considered ipso facto
resigned from their respective offices upon their filing of certificates of
candidacy. In contrast, since Section 66 was not repealed, the limitation
on appointive officials continues to be operative – they are deemed
resigned when they file their certificates of candidacy.
The petitioners in Fariñas thus brought an equal protection challenge
against Section 14, with the end in view of having the deemed-resigned
provisions "apply equally" to both elected and appointive officials. We
held, however, that the legal dichotomy created by the Legislature is a
reasonable classification, as there are material and significant distinctions
between the two classes of officials. Consequently, the contention that
Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of
the Omnibus Election Code, infringed on the equal protection clause of
the Constitution, failed muster. We ruled:
The petitioners' contention, that the repeal of Section 67 of the Omnibus
Election Code pertaining to elective officials gives undue benefit to such
officials as against the appointive ones and violates the equal protection
clause of the constitution, is tenuous.
The equal protection of the law clause in the Constitution is not absolute,
but is subject to reasonable classification. If the groupings are
characterized by substantial distinctions that make real differences, one
class may be treated and regulated differently from the other. The Court
has explained the nature of the equal protection guarantee in this
manner:
The equal protection of the law clause is against undue favor and
individual or class privilege, as well as hostile discrimination or the
oppression of inequality. It is not intended to prohibit legislation which is
limited either in the object to which it is directed or by territory within
which it is to operate. It does not demand absolute equality among
residents; it merely requires that all persons shall be treated alike, under
like circumstances and conditions both as to privileges conferred and
liabilities enforced. The equal protection clause is not infringed by
legislation which applies only to those persons falling within a specified
class, if it applies alike to all persons within such class, and reasonable
grounds exist for making a distinction between those who fall within such
class and those who do not.
Substantial distinctions clearly exist between elective officials and
appointive officials. The former occupy their office by virtue of the
mandate of the electorate. They are elected to an office for a definite term
and may be removed therefrom only upon stringent conditions. On the
other hand, appointive officials hold their office by virtue of their
designation thereto by an appointing authority. Some appointive officials
hold their office in a permanent capacity and are entitled to security of
tenure while others serve at the pleasure of the appointing authority.
Another substantial distinction between the two sets of officials is that
under Section 55, Chapter 8, Title I, Subsection A. Civil Service
Commission, Book V of the Administrative Code of 1987 (Executive
Order No. 292), appointive officials, as officers and employees in the civil
service, are strictly prohibited from engaging in any partisan political
activity or take (sic) part in any election except to vote. Under the same
provision, elective officials, or officers or employees holding political
offices, are obviously expressly allowed to take part in political and
electoral activities.
By repealing Section 67 but retaining Section 66 of the Omnibus Election
Code, the legislators deemed it proper to treat these two classes of
officials differently with respect to the effect on their tenure in the office of
the filing of the certificates of candidacy for any position other than those
occupied by them. Again, it is not within the power of the Court to pass
upon or look into the wisdom of this classification.
Since the classification justifying Section 14 of Rep. Act No. 9006, i.e.,
elected officials vis-à-vis appointive officials, is anchored upon material
and significant distinctions and all the persons belonging under the same
classification are similarly treated, the equal protection clause of the
Constitution is, thus, not infringed.26
The case at bar is a crass attempt to resurrect a dead issue. The miracle
is that our assailed Decision gave it new life. We ought to be guided by
the doctrine of stare decisis et non quieta movere. This doctrine, which is
really "adherence to precedents," mandates that once a case has been
decided one way, then another case involving exactly the same point at
issue should be decided in the same manner.27 This doctrine is one of
policy grounded on the necessity for securing certainty and stability of
judicial decisions. As the renowned jurist Benjamin Cardozo stated in his
treatise The Nature of the Judicial Process:
It will not do to decide the same question one way between one set of
litigants and the opposite way between another. "If a group of cases
involves the same point, the parties expect the same decision. It would
be a gross injustice to decide alternate cases on opposite principles. If a
case was decided against me yesterday when I was a defendant, I shall
look for the same judgment today if I am plaintiff. To decide differently
would raise a feeling of resentment and wrong in my breast; it would be
an infringement, material and moral, of my rights." Adherence to
precedent must then be the rule rather than the exception if litigants are
to have faith in the even-handed administration of justice in the courts.28
Our Fariñas ruling on the equal protection implications of the deemed-
resigned provisions cannot be minimalized as mere obiter dictum. It is
trite to state that an adjudication on any point within the issues presented
by the case cannot be considered as obiter dictum.29 This rule applies to
all pertinent questions that are presented and resolved in the regular
course of the consideration of the case and lead up to the final
conclusion, and to any statement as to the matter on which the decision
is predicated.30 For that reason, a point expressly decided does not lose
its value as a precedent because the disposition of the case is, or might
have been, made on some other ground; or even though, by reason of
other points in the case, the result reached might have been the same if
the court had held, on the particular point, otherwise than it did.31 As we
held in Villanueva, Jr. v. Court of Appeals, et al.:32
… A decision which the case could have turned on is not regarded as
obiter dictum merely because, owing to the disposal of the contention, it
was necessary to consider another question, nor can an additional
reason in a decision, brought forward after the case has been disposed of
on one ground, be regarded as dicta. So, also, where a case presents
two (2) or more points, any one of which is sufficient to determine the
ultimate issue, but the court actually decides all such points, the case as
an authoritative precedent as to every point decided, and none of such
points can be regarded as having the status of a dictum, and one point
should not be denied authority merely because another point was more
dwelt on and more fully argued and considered, nor does a decision on
one proposition make statements of the court regarding other
propositions dicta.33 (italics supplied)
ii. Classification Germane to the Purposes of the Law
The Fariñas ruling on the equal protection challenge stands on solid
ground even if reexamined.
To start with, the equal protection clause does not require the universal
application of the laws to all persons or things without distinction.34 What it
simply requires is equality among equals as determined according to a
valid classification.35 The test developed by jurisprudence here and
yonder is that of reasonableness,36 which has four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
 (4) It applies equally to all members of the same class.37
Our assailed Decision readily acknowledged that these deemed-resigned
provisions satisfy the first, third and fourth requisites of reasonableness.
It, however, proffers the dubious conclusion that the differential treatment
of appointive officials vis-à-vis elected officials is not germane to the
purpose of the law, because "whether one holds an appointive office or
an elective one, the evils sought to be prevented by the measure
remain," viz.:
… For example, the Executive Secretary, or any Member of the Cabinet
for that matter, could wield the same influence as the Vice-President who
at the same time is appointed to a Cabinet post (in the recent past,
elected Vice-Presidents were appointed to take charge of national
housing, social welfare development, interior and local government, and
foreign affairs). With the fact that they both head executive offices, there
is no valid justification to treat them differently when both file their
[Certificates of Candidacy] for the elections. Under the present state of
our law, the Vice-President, in the example, running this time, let us say,
for President, retains his position during the entire election period and
can still use the resources of his office to support his campaign.38
Sad to state, this conclusion conveniently ignores the long-standing rule
that to remedy an injustice, the Legislature need not address every
manifestation of the evil at once; it may proceed "one step at a time."39 In
addressing a societal concern, it must invariably draw lines and make
choices, thereby creating some inequity as to those included or
excluded.40 Nevertheless, as long as "the bounds of reasonable choice"
are not exceeded, the courts must defer to the legislative judgment.41 We
may not strike down a law merely because the legislative aim would have
been more fully achieved by expanding the class.42 Stated differently, the
fact that a legislative classification, by itself, is underinclusive will not
render it unconstitutionally arbitrary or invidious.43 There is no
constitutional requirement that regulation must reach each and every
class to which it might be applied;44 that the Legislature must be held
rigidly to the choice of regulating all or none.
Thus, any person who poses an equal protection challenge must
convincingly show that the law creates a classification that is "palpably
arbitrary or capricious."45 He must refute all possible rational bases for the
differing treatment, whether or not the Legislature cited those bases as
reasons for the enactment,46 such that the constitutionality of the law must
be sustained even if the reasonableness of the classification is "fairly
debatable."47In the case at bar, the petitioners failed – and in fact did not
even attempt – to discharge this heavy burden. Our assailed Decision
was likewise silent as a sphinx on this point even while we submitted the
following thesis:
... [I]t is not sufficient grounds for invalidation that we may find that the
statute’s distinction is unfair, underinclusive, unwise, or not the best
solution from a public-policy standpoint; rather, we must find that there is
no reasonably rational reason for the differing treatment.48
In the instant case, is there a rational justification for excluding elected
officials from the operation of the deemed resigned provisions? I submit
that there is.
An election is the embodiment of the popular will, perhaps the purest
expression of the sovereign power of the people.49 It involves the choice
or selection of candidates to public office by popular vote.50 Considering
that elected officials are put in office by their constituents for a definite
term, it may justifiably be said that they were excluded from the ambit of
the deemed resigned provisions in utmost respect for the mandate of the
sovereign will. In other words, complete deference is accorded to the will
of the electorate that they be served by such officials until the end of the
term for which they were elected. In contrast, there is no such
expectation insofar as appointed officials are concerned.
The dichotomized treatment of appointive and elective officials is
therefore germane to the purposes of the law. For the law was made not
merely to preserve the integrity, efficiency, and discipline of the public
service; the Legislature, whose wisdom is outside the rubric of judicial
scrutiny, also thought it wise to balance this with the competing, yet
equally compelling, interest of deferring to the sovereign will.51 (emphasis
in the original)
In fine, the assailed Decision would have us "equalize the playing field"
by invalidating provisions of law that seek to restrain the evils from
running riot. Under the pretext of equal protection, it would favor a
situation in which the evils are unconfined and vagrant, existing at the
behest of both appointive and elected officials, over another in which a
significant portion thereof is contained. The absurdity of that position is
self-evident, to say the least.
The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in
his dissent, that elected officials (vis-à-vis appointive officials) have
greater political clout over the electorate, is indeed a matter worth
exploring – but not by this Court. Suffice it to say that the remedy lies with
the Legislature. It is the Legislature that is given the authority, under our
constitutional system, to balance competing interests and thereafter
make policy choices responsive to the exigencies of the times. It is
certainly within the Legislature’s power to make the deemed-resigned
provisions applicable to elected officials, should it later decide that the
evils sought to be prevented are of such frequency and magnitude as to
tilt the balance in favor of expanding the class. This Court cannot and
should not arrogate unto itself the power to ascertain and impose on the
people the best state of affairs from a public policy standpoint.
iii. Mancuso v. Taft Has Been Overruled
Finding no Philippine jurisprudence to prop up its equal protection ruling,
our assailed Decision adverted to, and extensively cited, Mancuso v.
Taft.52 This was a decision of the First Circuit of the United States Court of
Appeals promulgated in March 1973, which struck down as
unconstitutional a similar statutory provision. Pathetically, our assailed
Decision, relying on Mancuso, claimed:
(1) The right to run for public office is "inextricably linked" with two
fundamental freedoms – freedom of expression and association;
(2) Any legislative classification that significantly burdens this
fundamental right must be subjected to strict equal protection
review; and
(3) While the state has a compelling interest in maintaining the
honesty and impartiality of its public work force, the deemed-
resigned provisions pursue their objective in a far too heavy-
handed manner as to render them unconstitutional.
It then concluded with the exhortation that since "the Americans, from
whom we copied the provision in question, had already stricken down a
similar measure for being unconstitutional[,] it is high-time that we, too,
should follow suit."
Our assailed Decision’s reliance on Mancuso is completely misplaced.
We cannot blink away the fact that the United States Supreme Court
effectively overruled Mancuso three months after its promulgation by the
United States Court of Appeals. In United States Civil Service
Commission, et al. v. National Association of Letter Carriers AFL-CIO, et
al.53 and Broadrick, et al. v. State of Oklahoma, et al.,54 the United States
Supreme Court was faced with the issue of whether statutory provisions
prohibiting federal55 and state56 employees from taking an active part in
political management or in political campaigns were unconstitutional as to
warrant facial invalidation. Violation of these provisions results in
dismissal from employment and possible criminal sanctions.
The Court declared these provisions compliant with the equal protection
clause. It held that (i) in regulating the speech of its employees, the state
as employer has interests that differ significantly from those it possesses
in regulating the speech of the citizenry in general; (ii) the courts must
therefore balance the legitimate interest of employee free expression
against the interests of the employer in promoting efficiency of public
services; (iii) if the employees’ expression interferes with the
maintenance of efficient and regularly functioning services, the limitation
on speech is not unconstitutional; and (iv) the Legislature is to be given
some flexibility or latitude in ascertaining which positions are to be
covered by any statutory restrictions.57 Therefore, insofar as government
employees are concerned, the correct standard of review is an interest-
balancing approach, a means-end scrutiny that examines the closeness
of fit between the governmental interests and the prohibitions in
question.58
Letter Carriers elucidated on these principles, as follows:
Until now, the judgment of Congress, the Executive, and the country
appears to have been that partisan political activities by federal
employees must be limited if the Government is to operate effectively and
fairly, elections are to play their proper part in representative government,
and employees themselves are to be sufficiently free from improper
influences. The restrictions so far imposed on federal employees are not
aimed at particular parties, groups, or points of view, but apply equally to
all partisan activities of the type described. They discriminate against no
racial, ethnic, or religious minorities. Nor do they seek to control political
opinions or beliefs, or to interfere with or influence anyone's vote at the
polls.
But, as the Court held in Pickering v. Board of Education,59 the
government has an interest in regulating the conduct and ‘the speech of
its employees that differ(s) significantly from those it possesses in
connection with regulation of the speech of the citizenry in general. The
problem in any case is to arrive at a balance between the interests of the
(employee), as a citizen, in commenting upon matters of public concern
and the interest of the (government), as an employer, in promoting the
efficiency of the public services it performs through its employees.’
Although Congress is free to strike a different balance than it has, if it so
chooses, we think the balance it has so far struck is sustainable by the
obviously important interests sought to be served by the limitations on
partisan political activities now contained in the Hatch Act.
It seems fundamental in the first place that employees in the Executive
Branch of the Government, or those working for any of its agencies,
should administer the law in accordance with the will of Congress, rather
than in accordance with their own or the will of a political party. They are
expected to enforce the law and execute the programs of the
Government without bias or favoritism for or against any political party or
group or the members thereof. A major thesis of the Hatch Act is that to
serve this great end of Government-the impartial execution of the laws-it
is essential that federal employees, for example, not take formal positions
in political parties, not undertake to play substantial roles in partisan
political campaigns, and not run for office on partisan political tickets.
Forbidding activities like these will reduce the hazards to fair and effective
government.
There is another consideration in this judgment: it is not only important
that the Government and its employees in fact avoid practicing political
justice, but it is also critical that they appear to the public to be avoiding it,
if confidence in the system of representative Government is not to be
eroded to a disastrous extent.
Another major concern of the restriction against partisan activities by
federal employees was perhaps the immediate occasion for enactment of
the Hatch Act in 1939. That was the conviction that the rapidly expanding
Government work force should not be employed to build a powerful,
invincible, and perhaps corrupt political machine. The experience of the
1936 and 1938 campaigns convinced Congress that these dangers were
sufficiently real that substantial barriers should be raised against the party
in power-or the party out of power, for that matter-using the thousands or
hundreds of thousands of federal employees, paid for at public expense,
to man its political structure and political campaigns.
A related concern, and this remains as important as any other, was to
further serve the goal that employment and advancement in the
Government service not depend on political performance, and at the
same time to make sure that Government employees would be free from
pressure and from express or tacit invitation to vote in a certain way or
perform political chores in order to curry favor with their superiors rather
than to act out their own beliefs. It may be urged that prohibitions against
coercion are sufficient protection; but for many years the joint judgment of
the Executive and Congress has been that to protect the rights of federal
employees with respect to their jobs and their political acts and beliefs it
is not enough merely to forbid one employee to attempt to influence or
coerce another. For example, at the hearings in 1972 on proposed
legislation for liberalizing the prohibition against political activity, the
Chairman of the Civil Service Commission stated that ‘the prohibitions
against active participation in partisan political management and partisan
political campaigns constitute the most significant safeguards against
coercion . . ..’ Perhaps Congress at some time will come to a different
view of the realities of political life and Government service; but that is its
current view of the matter, and we are not now in any position to dispute
it. Nor, in our view, does the Constitution forbid it.
Neither the right to associate nor the right to participate in political
activities is absolute in any event.60 x x x
xxxx
As we see it, our task is not to destroy the Act if we can, but to construe
it, if consistent with the will of Congress, so as to comport with
constitutional limitations. (italics supplied)
Broadrick likewise definitively stated that the assailed statutory provision
is constitutionally permissible, viz.:
Appellants do not question Oklahoma's right to place even-handed
restrictions on the partisan political conduct of state employees.
Appellants freely concede that such restrictions serve valid and important
state interests, particularly with respect to attracting greater numbers of
qualified people by insuring their job security, free from the vicissitudes of
the elective process, and by protecting them from ‘political extortion.’
Rather, appellants maintain that however permissible, even
commendable, the goals of s 818 may be, its language is
unconstitutionally vague and its prohibitions too broad in their sweep,
failing to distinguish between conduct that may be proscribed and
conduct that must be permitted. For these and other reasons, appellants
assert that the sixth and seventh paragraphs of s 818 are void in toto and
cannot be enforced against them or anyone else.
We have held today that the Hatch Act is not impermissibly vague.61 We
have little doubt that s 818 is similarly not so vague that ‘men of common
intelligence must necessarily guess at its meaning.’62 Whatever other
problems there are with s 818, it is all but frivolous to suggest that the
section fails to give adequate warning of what activities it proscribes or
fails to set out ‘explicit standards' for those who must apply it. In the
plainest language, it prohibits any state classified employee from being
‘an officer or member’ of a ‘partisan political club’ or a candidate for ‘any
paid public office.’ It forbids solicitation of contributions ‘for any political
organization, candidacy or other political purpose’ and taking part ‘in the
management or affairs of any political party or in any political campaign.’
Words inevitably contain germs of uncertainty and, as with the Hatch Act,
there may be disputes over the meaning of such terms in s 818 as
‘partisan,’ or ‘take part in,’ or ‘affairs of’ political parties. But what was
said in Letter Carriers, is applicable here: ‘there are limitations in the
English language with respect to being both specific and manageably
brief, and it seems to us that although the prohibitions may not satisfy
those intent on finding fault at any cost, they are set out in terms that the
ordinary person exercising ordinary common sense can sufficiently
understand and comply with, without sacrifice to the public interest.' x x x
xxxx
[Appellants] nevertheless maintain that the statute is overbroad and
purports to reach protected, as well as unprotected conduct, and must
therefore be struck down on its face and held to be incapable of any
constitutional application. We do not believe that the overbreadth doctrine
may appropriately be invoked in this manner here.
xxxx
The consequence of our departure from traditional rules of standing in the
First Amendment area is that any enforcement of a statute thus placed at
issue is totally forbidden until and unless a limiting construction or partial
invalidation so narrows it as to remove the seeming threat or deterrence
to constitutionally protected expression. Application of the overbreadth
doctrine in this manner is, manifestly, strong medicine. It has been
employed by the Court sparingly and only as a last resort. x x x
x x x But the plain import of our cases is, at the very least, that facial
over-breadth adjudication is an exception to our traditional rules of
practice and that its function, a limited one at the outset, attenuates as
the otherwise unprotected behavior that it forbids the State to sanction
moves from ‘pure speech’ toward conduct and that conduct-even if
expressive-falls within the scope of otherwise valid criminal laws that
reflect legitimate state interests in maintaining comprehensive controls
over harmful, constitutionally unprotected conduct. Although such laws, if
too broadly worded, may deter protected speech to some unknown
extent, there comes a point where that effect-at best a prediction-cannot,
with confidence, justify invalidating a statute on its face and so prohibiting
a State from enforcing the statute against conduct that is admittedly
within its power to proscribe. To put the matter another way, particularly
where conduct and not merely speech is involved, we believe that the
overbreadth of a statute must not only be real, but substantial as well,
judged in relation to the statute's plainly legitimate sweep. It is our view
that s 818 is not substantially overbroad and that whatever overbreadth
may exist should be cured through case-by-case analysis of the fact
situations to which its sanctions, assertedly, may not be applied.
Unlike ordinary breach-of-the peace statutes or other broad regulatory
acts, s 818 is directed, by its terms, at political expression which if
engaged in by private persons would plainly be protected by the First and
Fourteenth Amendments. But at the same time, s 818 is not a censorial
statute, directed at particular groups or viewpoints. The statute, rather,
seeks to regulate political activity in an even-handed and neutral manner.
As indicted, such statutes have in the past been subject to a less
exacting overbreadth scrutiny. Moreover, the fact remains that s 818
regulates a substantial spectrum of conduct that is as manifestly subject
to state regulation as the public peace or criminal trespass. This much
was established in United Public Workers v. Mitchell, and has been
unhesitatingly reaffirmed today in Letter Carriers. Under the decision in
Letter Carriers, there is no question that s 818 is valid at least insofar as it
forbids classified employees from: soliciting contributions for partisan
candidates, political parties, or other partisan political purposes;
becoming members of national, state, or local committees of political
parties, or officers or committee members in partisan political clubs, or
candidates for any paid public office; taking part in the management or
affairs of any political party's partisan political campaign; serving as
delegates or alternates to caucuses or conventions of political parties;
addressing or taking an active part in partisan political rallies or meetings;
soliciting votes or assisting voters at the polls or helping in a partisan
effort to get voters to the polls; participating in the distribution of partisan
campaign literature; initiating or circulating partisan nominating petitions;
or riding in caravans for any political party or partisan political candidate.
x x x It may be that such restrictions are impermissible and that s 818
may be susceptible of some other improper applications. But, as
presently construed, we do not believe that s 818 must be discarded in
toto because some persons’ arguably protected conduct may or may not
be caught or chilled by the statute. Section 818 is not substantially
overbroad and it not, therefore, unconstitutional on its face. (italics
supplied)
It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura
does not deny the principles enunciated in Letter Carriers and Broadrick.
He would hold, nonetheless, that these cases cannot be interpreted to
mean a reversal of Mancuso, since they "pertain to different types of laws
and were decided based on a different set of facts," viz.:
In Letter Carriers, the plaintiffs alleged that the Civil Service Commission
was enforcing, or threatening to enforce, the Hatch Act’s prohibition
against "active participation in political management or political
campaigns." The plaintiffs desired to campaign for candidates for public
office, to encourage and get federal employees to run for state and local
offices, to participate as delegates in party conventions, and to hold office
in a political club.
In Broadrick, the appellants sought the invalidation for being vague and
overbroad a provision in the (sic) Oklahoma’s Merit System of Personnel
Administration Act restricting the political activities of the State’s classified
civil servants, in much the same manner as the Hatch Act proscribed
partisan political activities of federal employees. Prior to the
commencement of the action, the appellants actively participated in the
1970 reelection campaign of their superior, and were administratively
charged for asking other Corporation Commission employees to do
campaign work or to give referrals to persons who might help in the
campaign, for soliciting money for the campaign, and for receiving and
distributing campaign posters in bulk.
Mancuso, on the other hand, involves, as aforesaid, an automatic
resignation provision. Kenneth Mancuso, a full time police officer and
classified civil service employee of the City of Cranston, filed as a
candidate for nomination as representative to the Rhode Island General
Assembly. The Mayor of Cranston then began the process of enforcing
the resign-to-run provision of the City Home Rule Charter.
Clearly, as the above-cited US cases pertain to different types of laws
and were decided based on a different set of facts, Letter Carriers and
Broadrick cannot be interpreted to mean a reversal of Mancuso. x x x
(italics in the original)
We hold, however, that his position is belied by a plain reading of these
cases. Contrary to his claim, Letter Carriers, Broadrick and Mancuso all
concerned the constitutionality of resign-to-run laws, viz.:
(1) Mancuso involved a civil service employee who filed as a
candidate for nomination as representative to the Rhode Island
General Assembly. He assailed the constitutionality of §14.09(c)
of the City Home Rule Charter, which prohibits "continuing in the
classified service of the city after becoming a candidate for
nomination or election to any public office."
(2) Letter Carriers involved plaintiffs who alleged that the Civil
Service Commission was enforcing, or threatening to enforce, the
Hatch Act’s prohibition against "active participation in political
management or political campaigns"63 with respect to certain
defined activities in which they desired to engage. The plaintiffs
relevant to this discussion are:
(a) The National Association of Letter Carriers, which
alleged that its members were desirous of, among others,
running in local elections for offices such as school board
member, city council member or mayor;
(b) Plaintiff Gee, who alleged that he desired to, but did
not, file as a candidate for the office of Borough
Councilman in his local community for fear that his
participation in a partisan election would endanger his job;
and
(c) Plaintiff Myers, who alleged that he desired to run as a
Republican candidate in the 1971 partisan election for the
mayor of West Lafayette, Indiana, and that he would do
so except for fear of losing his job by reason of violation of
the Hatch Act.
The Hatch Act defines "active participation in political management or
political campaigns" by cross-referring to the rules made by the Civil
Service Commission. The rule pertinent to our inquiry states:
30. Candidacy for local office: Candidacy for a nomination or for election
to any National, State, county, or municipal office is not permissible. The
prohibition against political activity extends not merely to formal
announcement of candidacy but also to the preliminaries leading to such
announcement and to canvassing or soliciting support or doing or
permitting to be done any act in furtherance of candidacy. The fact that
candidacy, is merely passive is immaterial; if an employee acquiesces in
the efforts of friends in furtherance of such candidacy such acquiescence
constitutes an infraction of the prohibitions against political activity. (italics
supplied)
Section 9(b) requires the immediate removal of violators and forbids the
use of appropriated funds thereafter to pay compensation to these
persons.64
(3) Broadrick was a class action brought by certain Oklahoma state
employees seeking a declaration of unconstitutionality of two sub-
paragraphs of Section 818 of Oklahoma’s Merit System of Personnel
Administration Act. Section 818 (7), the paragraph relevant to this
discussion, states that "[n]o employee in the classified service shall be …
a candidate for nomination or election to any paid public office…"
Violation of Section 818 results in dismissal from employment, possible
criminal sanctions and limited state employment ineligibility.
Consequently, it cannot be denied that Letter Carriers and Broadrick
effectively overruled Mancuso. By no stretch of the imagination could
Mancuso still be held operative, as Letter Carriers and Broadrick (i)
concerned virtually identical resign-to-run laws, and (ii) were decided by a
superior court, the United States Supreme Court. It was thus not
surprising for the First Circuit Court of Appeals – the same court that
decided Mancuso – to hold categorically and emphatically in Magill v.
Lynch65 that Mancuso is no longer good law. As we priorly explained:
Magill involved Pawtucket, Rhode Island firemen who ran for city office in
1975. Pawtucket’s "Little Hatch Act" prohibits city employees from
engaging in a broad range of political activities. Becoming a candidate for
any city office is specifically proscribed,66 the violation being punished by
removal from office or immediate dismissal. The firemen brought an
action against the city officials on the ground that that the provision of the
city charter was unconstitutional. However, the court, fully cognizant of
Letter Carriers and Broadrick, took the position that Mancuso had since
lost considerable vitality. It observed that the view that political candidacy
was a fundamental interest which could be infringed upon only if less
restrictive alternatives were not available, was a position which was no
longer viable, since the Supreme Court (finding that the government’s
interest in regulating both the conduct and speech of its employees
differed significantly from its interest in regulating those of the citizenry in
general) had given little weight to the argument that prohibitions against
the coercion of government employees were a less drastic means to the
same end, deferring to the judgment of Congress, and applying a
"balancing" test to determine whether limits on political activity by public
employees substantially served government interests which were
"important" enough to outweigh the employees’ First Amendment rights.67
It must be noted that the Court of Appeals ruled in this manner even
though the election in Magill was characterized as nonpartisan, as it was
reasonable for the city to fear, under the circumstances of that case, that
politically active bureaucrats might use their official power to help political
friends and hurt political foes. Ruled the court:
The question before us is whether Pawtucket's charter provision, which
bars a city employee's candidacy in even a nonpartisan city election, is
constitutional. The issue compels us to extrapolate two recent Supreme
Court decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers
and Broadrick v. Oklahoma. Both dealt with laws barring civil servants
from partisan political activity. Letter Carriers reaffirmed United Public
Workers v. Mitchell, upholding the constitutionality of the Hatch Act as to
federal employees. Broadrick sustained Oklahoma's "Little Hatch Act"
against constitutional attack, limiting its holding to Oklahoma's
construction that the Act barred only activity in partisan politics. In
Mancuso v. Taft, we assumed that proscriptions of candidacy in
nonpartisan elections would not be constitutional. Letter Carriers and
Broadrick compel new analysis.
xxxx
What we are obligated to do in this case, as the district court recognized,
is to apply the Court’s interest balancing approach to the kind of
nonpartisan election revealed in this record. We believe that the district
court found more residual vigor in our opinion in Mancuso v. Taft than
remains after Letter Carriers. We have particular reference to our view
that political candidacy was a fundamental interest which could be
trenched upon only if less restrictive alternatives were not available.
While this approach may still be viable for citizens who are not
government employees, the Court in Letter Carriers recognized that the
government's interest in regulating both the conduct and speech of its
employees differs significantly from its interest in regulating those of the
citizenry in general. Not only was United Public Workers v. Mitchell
"unhesitatingly" reaffirmed, but the Court gave little weight to the
argument that prohibitions against the coercion of government employees
were a less drastic means to the same end, deferring to the judgment of
the Congress. We cannot be more precise than the Third Circuit in
characterizing the Court's approach as "some sort of 'balancing'
process".68 It appears that the government may place limits on
campaigning by public employees if the limits substantially serve
government interests that are "important" enough to outweigh the
employees' First Amendment rights. x x x (italics supplied)
Upholding thus the constitutionality of the law in question, the Magill court
detailed the major governmental interests discussed in Letter Carriers
and applied them to the Pawtucket provision as follows:
In Letter Carriers[,] the first interest identified by the Court was that of an
efficient government, faithful to the Congress rather than to party. The
district court discounted this interest, reasoning that candidates in a local
election would not likely be committed to a state or national platform. This
observation undoubtedly has substance insofar as allegiance to broad
policy positions is concerned. But a different kind of possible political
intrusion into efficient administration could be thought to threaten
municipal government: not into broad policy decisions, but into the
particulars of administration favoritism in minute decisions affecting
welfare, tax assessments, municipal contracts and purchasing, hiring,
zoning, licensing, and inspections. Just as the Court in Letter Carriers
identified a second governmental interest in the avoidance of the
appearance of "political justice" as to policy, so there is an equivalent
interest in avoiding the appearance of political preferment in privileges,
concessions, and benefits. The appearance (or reality) of favoritism that
the charter's authors evidently feared is not exorcised by the nonpartisan
character of the formal election process. Where, as here, party support is
a key to successful campaigning, and party rivalry is the norm, the city
might reasonably fear that politically active bureaucrats would use their
official power to help political friends and hurt political foes. This is not to
say that the city's interest in visibly fair and effective administration
necessarily justifies a blanket prohibition of all employee campaigning; if
parties are not heavily involved in a campaign, the danger of favoritism is
less, for neither friend nor foe is as easily identified.
A second major governmental interest identified in Letter Carriers was
avoiding the danger of a powerful political machine. The Court had in
mind the large and growing federal bureaucracy and its partisan potential.
The district court felt this was only a minor threat since parties had no
control over nominations. But in fact candidates sought party
endorsements, and party endorsements proved to be highly effective
both in determining who would emerge from the primary election and who
would be elected in the final election. Under the prevailing customs,
known party affiliation and support were highly significant factors in
Pawtucket elections. The charter's authors might reasonably have feared
that a politically active public work force would give the incumbent party,
and the incumbent workers, an unbreakable grasp on the reins of power.
In municipal elections especially, the small size of the electorate and the
limited powers of local government may inhibit the growth of interest
groups powerful enough to outbalance the weight of a partisan work
force. Even when nonpartisan issues and candidacies are at stake,
isolated government employees may seek to influence voters or their co-
workers improperly; but a more real danger is that a central party
structure will mass the scattered powers of government workers behind a
single party platform or slate. Occasional misuse of the public trust to
pursue private political ends is tolerable, especially because the political
views of individual employees may balance each other out. But party
discipline eliminates this diversity and tends to make abuse systematic.
Instead of a handful of employees pressured into advancing their
immediate superior's political ambitions, the entire government work force
may be expected to turn out for many candidates in every election. In
Pawtucket, where parties are a continuing presence in political
campaigns, a carefully orchestrated use of city employees in support of
the incumbent party's candidates is possible. The danger is scarcely
lessened by the openness of Pawtucket's nominating procedure or the
lack of party labels on its ballots.
The third area of proper governmental interest in Letter Carriers was
ensuring that employees achieve advancement on their merits and that
they be free from both coercion and the prospect of favor from political
activity. The district court did not address this factor, but looked only to
the possibility of a civil servant using his position to influence voters, and
held this to be no more of a threat than in the most nonpartisan of
elections. But we think that the possibility of coercion of employees by
superiors remains as strong a factor in municipal elections as it was in
Letter Carriers. Once again, it is the systematic and coordinated
exploitation of public servants for political ends that a legislature is most
likely to see as the primary threat of employees' rights. Political
oppression of public employees will be rare in an entirely nonpartisan
system. Some superiors may be inclined to ride herd on the politics of
their employees even in a nonpartisan context, but without party officials
looking over their shoulders most supervisors will prefer to let employees
go their own ways.
In short, the government may constitutionally restrict its employees'
participation in nominally nonpartisan elections if political parties play a
large role in the campaigns. In the absence of substantial party
involvement, on the other hand, the interests identified by the Letter
Carriers Court lose much of their force. While the employees' First
Amendment rights would normally outbalance these diminished interests,
we do not suggest that they would always do so. Even when parties are
absent, many employee campaigns might be thought to endanger at least
one strong public interest, an interest that looms larger in the context of
municipal elections than it does in the national elections considered in
Letter Carriers. The city could reasonably fear the prospect of a
subordinate running directly against his superior or running for a position
that confers great power over his superior. An employee of a federal
agency who seeks a Congressional seat poses less of a direct challenge
to the command and discipline of his agency than a fireman or policeman
who runs for mayor or city council. The possibilities of internal discussion,
cliques, and political bargaining, should an employee gather substantial
political support, are considerable. (citations omitted)
The court, however, remanded the case to the district court for further
proceedings in respect of the petitioners’ overbreadth charge. Noting that
invalidating a statute for being overbroad is "not to be taken lightly, much
less to be taken in the dark," the court held:
The governing case is Broadrick, which introduced the doctrine of
"substantial" overbreadth in a closely analogous case. Under Broadrick,
when one who challenges a law has engaged in constitutionally
unprotected conduct (rather than unprotected speech) and when the
challenged law is aimed at unprotected conduct, "the overbreadth of a
statute must not only be real, but substantial as well, judged in relation to
the statute's plainly legitimate sweep." Two major uncertainties attend the
doctrine: how to distinguish speech from conduct, and how to define
"substantial" overbreadth. We are spared the first inquiry by Broadrick
itself. The plaintiffs in that case had solicited support for a candidate, and
they were subject to discipline under a law proscribing a wide range of
activities, including soliciting contributions for political candidates and
becoming a candidate. The Court found that this combination required a
substantial overbreadth approach. The facts of this case are so similar
that we may reach the same result without worrying unduly about the
sometimes opaque distinction between speech and conduct.
The second difficulty is not so easily disposed of. Broadrick found no
substantial overbreadth in a statute restricting partisan campaigning.
Pawtucket has gone further, banning participation in nonpartisan
campaigns as well. Measuring the substantiality of a statute's
overbreadth apparently requires, inter alia, a rough balancing of the
number of valid applications compared to the number of potentially invalid
applications. Some sensitivity to reality is needed; an invalid application
that is far-fetched does not deserve as much weight as one that is
probable. The question is a matter of degree; it will never be possible to
say that a ratio of one invalid to nine valid applications makes a law
substantially overbroad. Still, an overbreadth challenger has a duty to
provide the court with some idea of the number of potentially invalid
applications the statute permits. Often, simply reading the statute in the
light of common experience or litigated cases will suggest a number of
probable invalid applications. But this case is different. Whether the
statute is overbroad depends in large part on the number of elections that
are insulated from party rivalry yet closed to Pawtucket employees. For
all the record shows, every one of the city, state, or federal elections in
Pawtucket is actively contested by political parties. Certainly the record
suggests that parties play a major role even in campaigns that often are
entirely nonpartisan in other cities. School committee candidates, for
example, are endorsed by the local Democratic committee.
The state of the record does not permit us to find overbreadth; indeed
such a step is not to be taken lightly, much less to be taken in the dark.
On the other hand, the entire focus below, in the short period before the
election was held, was on the constitutionality of the statute as applied.
Plaintiffs may very well feel that further efforts are not justified, but they
should be afforded the opportunity to demonstrate that the charter
forecloses access to a significant number of offices, the candidacy for
which by municipal employees would not pose the possible threats to
government efficiency and integrity which Letter Carriers, as we have
interpreted it, deems significant. Accordingly, we remand for
consideration of plaintiffs' overbreadth claim. (italics supplied, citations
omitted)
Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt
that Mancuso v. Taft, heavily relied upon by the ponencia, has effectively
been overruled.69 As it is no longer good law, the ponencia’s exhortation
that "[since] the Americans, from whom we copied the provision in
question, had already stricken down a similar measure for being
unconstitutional[,] it is high-time that we, too, should follow suit" is
misplaced and unwarranted.70
Accordingly, our assailed Decision’s submission that the right to run for
public office is "inextricably linked" with two fundamental freedoms –
those of expression and association – lies on barren ground. American
case law has in fact never recognized a fundamental right to express
one’s political views through candidacy,71 as to invoke a rigorous standard
of review.72 Bart v. Telford73 pointedly stated that "[t]he First Amendment
does not in terms confer a right to run for public office, and this court has
held that it does not do so by implication either." Thus, one’s interest in
seeking office, by itself, is not entitled to constitutional
protection.74 Moreover, one cannot bring one’s action under the rubric of
freedom of association, absent any allegation that, by running for an
elective position, one is advancing the political ideas of a particular set of
voters.75
Prescinding from these premises, it is crystal clear that the provisions
challenged in the case at bar, are not violative of the equal protection
clause. The deemed-resigned provisions substantially serve
governmental interests (i.e., (i) efficient civil service faithful to the
government and the people rather than to party; (ii) avoidance of the
appearance of "political justice" as to policy; (iii) avoidance of the danger
of a powerful political machine; and (iv) ensuring that employees achieve
advancement on their merits and that they be free from both coercion and
the prospect of favor from political activity). These are interests that are
important enough to outweigh the non-fundamental right of appointive
officials and employees to seek elective office. 1avvphi1
En passant, we find it quite ironic that Mr. Justice Nachura cites Clements
v. Fashing76 and Morial, et al. v. Judiciary Commission of the State of
Louisiana, et al.77 to buttress his dissent. Maintaining that resign-to-run
provisions are valid only when made applicable to specified officials, he
explains:
…U.S. courts, in subsequent cases, sustained the constitutionality of
resign-to-run provisions when applied to specified or particular officials,
as distinguished from all others,78 under a classification that is germane to
the purposes of the law. These resign-to-run legislations were not
expressed in a general and sweeping provision, and thus did not violate
the test of being germane to the purpose of the law, the second requisite
for a valid classification. Directed, as they were, to particular officials,
they were not overly encompassing as to be overbroad. (emphasis in the
original)
This reading is a regrettable misrepresentation of Clements and Morial.
The resign-to-run provisions in these cases were upheld not because
they referred to specified or particular officials (vis-à-vis a general class);
the questioned provisions were found valid precisely because the Court
deferred to legislative judgment and found that a regulation is not devoid
of a rational predicate simply because it happens to be incomplete. In
fact, the equal protection challenge in Clements revolved around the
claim that the State of Texas failed to explain why some public officials
are subject to the resign-to-run provisions, while others are not. Ruled the
United States Supreme Court:
Article XVI, § 65, of the Texas Constitution provides that the holders of
certain offices automatically resign their positions if they become
candidates for any other elected office, unless the unexpired portion of
the current term is one year or less. The burdens that § 65 imposes on
candidacy are even less substantial than those imposed by § 19. The two
provisions, of course, serve essentially the same state interests. The
District Court found § 65 deficient, however, not because of the nature or
extent of the provision's restriction on candidacy, but because of the
manner in which the offices are classified. According to the District Court,
the classification system cannot survive equal protection scrutiny,
because Texas has failed to explain sufficiently why some elected public
officials are subject to § 65 and why others are not. As with the case of §
19, we conclude that § 65 survives a challenge under the Equal
Protection Clause unless appellees can show that there is no rational
predicate to the classification scheme.
The history behind § 65 shows that it may be upheld consistent with the
"one step at a time" approach that this Court has undertaken with regard
to state regulation not subject to more vigorous scrutiny than that
sanctioned by the traditional principles. Section 65 was enacted in 1954
as a transitional provision applying only to the 1954 election. Section 65
extended the terms of those offices enumerated in the provision from two
to four years. The provision also staggered the terms of other offices so
that at least some county and local offices would be contested at each
election. The automatic resignation proviso to § 65 was not added until
1958. In that year, a similar automatic resignation provision was added in
Art. XI, § 11, which applies to officeholders in home rule cities who serve
terms longer than two years. Section 11 allows home rule cities the
option of extending the terms of municipal offices from two to up to four
years.
Thus, the automatic resignation provision in Texas is a creature of the
State's electoral reforms of 1958. That the State did not go further in
applying the automatic resignation provision to those officeholders whose
terms were not extended by § 11 or § 65, absent an invidious purpose, is
not the sort of malfunctioning of the State's lawmaking process forbidden
by the Equal Protection Clause. A regulation is not devoid of a rational
predicate simply because it happens to be incomplete. The Equal
Protection Clause does not forbid Texas to restrict one elected
officeholder's candidacy for another elected office unless and until it
places similar restrictions on other officeholders. The provision's
language and its history belie any notion that § 65 serves the invidious
purpose of denying access to the political process to identifiable classes
of potential candidates. (citations omitted and italics supplied)
Furthermore, it is unfortunate that the dissenters took the Morial line that
"there is no blanket approval of restrictions on the right of public
employees to become candidates for public office" out of context. A
correct reading of that line readily shows that the Court only meant to
confine its ruling to the facts of that case, as each equal protection
challenge would necessarily have to involve weighing governmental
interests vis-à-vis the specific prohibition assailed. The Court held:
The interests of public employees in free expression and political
association are unquestionably entitled to the protection of the first and
fourteenth amendments. Nothing in today's decision should be taken to
imply that public employees may be prohibited from expressing their
private views on controversial topics in a manner that does not interfere
with the proper performance of their public duties. In today's decision,
there is no blanket approval of restrictions on the right of public
employees to become candidates for public office. Nor do we approve
any general restrictions on the political and civil rights of judges in
particular. Our holding is necessarily narrowed by the methodology
employed to reach it. A requirement that a state judge resign his office
prior to becoming a candidate for non-judicial office bears a reasonably
necessary relation to the achievement of the state's interest in preventing
the actuality or appearance of judicial impropriety. Such a requirement
offends neither the first amendment's guarantees of free expression and
association nor the fourteenth amendment's guarantee of equal
protection of the laws. (italics supplied)
Indeed, the Morial court even quoted Broadrick and stated that:
In any event, the legislature must have some leeway in determining
which of its employment positions require restrictions on partisan political
activities and which may be left unregulated. And a State can hardly be
faulted for attempting to limit the positions upon which such restrictions
are placed. (citations omitted)
V.
Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66
of the Omnibus Election Code Do Not Suffer from Overbreadth
Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA
9369, and Section 66 of the Omnibus Election Code on equal protection
ground, our assailed Decision struck them down for being overbroad in
two respects, viz.:
(1) The assailed provisions limit the candidacy of all civil servants
holding appointive posts without due regard for the type of
position being held by the employee seeking an elective post and
the degree of influence that may be attendant thereto;79 and
(2) The assailed provisions limit the candidacy of any and all civil
servants holding appointive positions without due regard for the
type of office being sought, whether it be partisan or nonpartisan
in character, or in the national, municipal or barangay level.
Again, on second look, we have to revise our assailed Decision.
i. Limitation on Candidacy Regardless of Incumbent Appointive Official’s
Position, Valid
According to the assailed Decision, the challenged provisions of law are
overly broad because they apply indiscriminately to all civil servants
holding appointive posts, without due regard for the type of position being
held by the employee running for elective office and the degree of
influence that may be attendant thereto.
Its underlying assumption appears to be that the evils sought to be
prevented are extant only when the incumbent appointive official running
for elective office holds an influential post.
Such a myopic view obviously fails to consider a different, yet equally
plausible, threat to the government posed by the partisan potential of a
large and growing bureaucracy: the danger of systematic abuse
perpetuated by a "powerful political machine" that has amassed "the
scattered powers of government workers" so as to give itself and its
incumbent workers an "unbreakable grasp on the reins of power."80 As
elucidated in our prior exposition:81
Attempts by government employees to wield influence over others or to
make use of their respective positions (apparently) to promote their own
candidacy may seem tolerable – even innocuous – particularly when
viewed in isolation from other similar attempts by other government
employees. Yet it would be decidedly foolhardy to discount the equally (if
not more) realistic and dangerous possibility that such seemingly
disjointed attempts, when taken together, constitute a veiled effort on the
part of an emerging central party structure to advance its own agenda
through a "carefully orchestrated use of [appointive and/or elective]
officials" coming from various levels of the bureaucracy.
…[T]he avoidance of such a "politically active public work force" which
could give an emerging political machine an "unbreakable grasp on the
reins of power" is reason enough to impose a restriction on the
candidacies of all appointive public officials without further distinction as
to the type of positions being held by such employees or the degree of
influence that may be attendant thereto. (citations omitted)
ii. Limitation on Candidacy Regardless of Type of Office Sought, Valid
The assailed Decision also held that the challenged provisions of law are
overly broad because they are made to apply indiscriminately to all civil
servants holding appointive offices, without due regard for the type of
elective office being sought, whether it be partisan or nonpartisan in
character, or in the national, municipal or barangay level.
This erroneous ruling is premised on the assumption that "the concerns
of a truly partisan office and the temptations it fosters are sufficiently
different from those involved in an office removed from regular party
politics [so as] to warrant distinctive treatment,"82 so that restrictions on
candidacy akin to those imposed by the challenged provisions can validly
apply only to situations in which the elective office sought is partisan in
character. To the extent, therefore, that such restrictions are said to
preclude even candidacies for nonpartisan elective offices, the
challenged restrictions are to be considered as overbroad.
Again, a careful study of the challenged provisions and related laws on
the matter will show that the alleged overbreadth is more apparent than
real. Our exposition on this issue has not been repudiated, viz.:
A perusal of Resolution 8678 will immediately disclose that the rules and
guidelines set forth therein refer to the filing of certificates of candidacy
and nomination of official candidates of registered political parties, in
connection with the May 10, 2010 National and Local
Elections.83 Obviously, these rules and guidelines, including the restriction
in Section 4(a) of Resolution 8678, were issued specifically for purposes
of the May 10, 2010 National and Local Elections, which, it must be
noted, are decidedly partisan in character. Thus, it is clear that the
restriction in Section 4(a) of RA 8678 applies only to the candidacies of
appointive officials vying for partisan elective posts in the May 10, 2010
National and Local Elections. On this score, the overbreadth challenge
leveled against Section 4(a) is clearly unsustainable.
Similarly, a considered review of Section 13 of RA 9369 and Section 66
of the Omnibus Election Code, in conjunction with other related laws on
the matter, will confirm that these provisions are likewise not intended to
apply to elections for nonpartisan public offices.
The only elections which are relevant to the present inquiry are the
elections for barangay offices, since these are the only elections in this
country which involve nonpartisan public offices.84
In this regard, it is well to note that from as far back as the enactment of
the Omnibus Election Code in 1985, Congress has intended that these
nonpartisan barangay elections be governed by special rules, including a
separate rule on deemed resignations which is found in Section 39 of the
Omnibus Election Code. Said provision states:
Section 39. Certificate of Candidacy. – No person shall be elected
punong barangay or kagawad ng sangguniang barangay unless he files a
sworn certificate of candidacy in triplicate on any day from the
commencement of the election period but not later than the day before
the beginning of the campaign period in a form to be prescribed by the
Commission. The candidate shall state the barangay office for which he
is a candidate.
xxxx
Any elective or appointive municipal, city, provincial or national official or
employee, or those in the civil or military service, including those in
government-owned or-controlled corporations, shall be considered
automatically resigned upon the filing of certificate of candidacy for a
barangay office.
Since barangay elections are governed by a separate deemed
resignation rule, under the present state of law, there would be no
occasion to apply the restriction on candidacy found in Section 66 of the
Omnibus Election Code, and later reiterated in the proviso of Section 13
of RA 9369, to any election other than a partisan one. For this reason, the
overbreadth challenge raised against Section 66 of the Omnibus Election
Code and the pertinent proviso in Section 13 of RA 9369 must also fail. 85
In any event, even if we were to assume, for the sake of argument, that
Section 66 of the Omnibus Election Code and the corresponding
provision in Section 13 of RA 9369 are general rules that apply also to
elections for nonpartisan public offices, the overbreadth challenge would
still be futile. Again, we explained:
In the first place, the view that Congress is limited to controlling only
partisan behavior has not received judicial imprimatur, because the
general proposition of the relevant US cases on the matter is simply that
the government has an interest in regulating the conduct and speech of
its employees that differs significantly from those it possesses in
connection with regulation of the speech of the citizenry in general.86
Moreover, in order to have a statute declared as unconstitutional or void
on its face for being overly broad, particularly where, as in this case,
"conduct" and not "pure speech" is involved, the overbreadth must not
only be real, but substantial as well, judged in relation to the statute’s
plainly legitimate sweep.87
In operational terms, measuring the substantiality of a statute’s
overbreadth would entail, among other things, a rough balancing of the
number of valid applications compared to the number of potentially invalid
applications.88 In this regard, some sensitivity to reality is needed; an
invalid application that is far-fetched does not deserve as much weight as
one that is probable.89 The question is a matter of degree.90 Thus,
assuming for the sake of argument that the partisan-nonpartisan
distinction is valid and necessary such that a statute which fails to make
this distinction is susceptible to an overbreadth attack, the overbreadth
challenge presently mounted must demonstrate or provide this Court with
some idea of the number of potentially invalid elections (i.e. the number
of elections that were insulated from party rivalry but were nevertheless
closed to appointive employees) that may in all probability result from the
enforcement of the statute.91
The state of the record, however, does not permit us to find overbreadth.
Borrowing from the words of Magill v. Lynch, indeed, such a step is not to
be taken lightly, much less to be taken in the dark,92 especially since an
overbreadth finding in this case would effectively prohibit the State from
‘enforcing an otherwise valid measure against conduct that is admittedly
within its power to proscribe.’93
This Court would do well to proceed with tiptoe caution, particularly when
it comes to the application of the overbreadth doctrine in the analysis of
statutes that purportedly attempt to restrict or burden the exercise of the
right to freedom of speech, for such approach is manifestly strong
medicine that must be used sparingly, and only as a last resort.94
In the United States, claims of facial overbreadth have been entertained
only where, in the judgment of the court, the possibility that protected
speech of others may be muted and perceived grievances left to fester
(due to the possible inhibitory effects of overly broad statutes) outweighs
the possible harm to society in allowing some unprotected speech or
conduct to go unpunished.95 Facial overbreadth has likewise not been
invoked where a limiting construction could be placed on the challenged
statute, and where there are readily apparent constructions that would
cure, or at least substantially reduce, the alleged overbreadth of the
statute.96
In the case at bar, the probable harm to society in permitting incumbent
appointive officials to remain in office, even as they actively pursue
elective posts, far outweighs the less likely evil of having arguably
protected candidacies blocked by the possible inhibitory effect of a
potentially overly broad statute. a1f
In this light, the conceivably impermissible applications of the challenged
statutes – which are, at best, bold predictions – cannot justify invalidating
these statutes in toto and prohibiting the State from enforcing them
against conduct that is, and has for more than 100 years been,
unquestionably within its power and interest to proscribe.97Instead, the
more prudent approach would be to deal with these conceivably
impermissible applications through case-by-case adjudication rather than
through a total invalidation of the statute itself.98
Indeed, the anomalies spawned by our assailed Decision have taken
place. In his Motion for Reconsideration, intervenor Drilon stated that a
number of high-ranking Cabinet members had already filed their
Certificates of Candidacy without relinquishing their posts.99 Several
COMELEC election officers had likewise filed their Certificates of
Candidacy in their respective provinces.100 Even the Secretary of Justice
had filed her certificate of substitution for representative of the first district
of Quezon province last December 14, 2009101 – even as her position as
Justice Secretary includes supervision over the City and Provincial
Prosecutors,102 who, in turn, act as Vice-Chairmen of the respective
Boards of Canvassers.103 The Judiciary has not been spared, for a
Regional Trial Court Judge in the South has thrown his hat into the
political arena. We cannot allow the tilting of our electoral playing field in
their favor.
For the foregoing reasons, we now rule that Section 4(a) of Resolution
8678 and Section 13 of RA 9369, which merely reiterate Section 66 of the
Omnibus Election Code, are not unconstitutionally overbroad.
IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondent’s
and the intervenors’ Motions for Reconsideration; REVERSE and SET
ASIDE this Court’s December 1, 2009 Decision; DISMISS the Petition;
and ISSUE this Resolution declaring as not UNCONSTITUTIONAL (1)
Section 4(a) of COMELEC Resolution No. 8678, (2) the second proviso in
the third paragraph of Section 13 of Republic Act No. 9369, and (3)
Section 66 of the Omnibus Election Code.
SO ORDERED.
G.R. No. 181613               September 11, 2009
ROSALINDA A. PENERA, Petitioner, 
vs.
COMMISSION ON ELECTIONS and EDGAR T.
ANDANAR, Respondents.
DECISION
CHICO-NAZARIO, J.:
This Petition for Certiorari with Prayer for the Issuance of a Writ of
Preliminary Injunction and/or Temporary Restraining Order 1 under Rule
65, in relation to Rule 64 of the Rules of Court, seeks the nullification of
the Resolution2 dated 30 January 2008 of the Commission on Elections
(COMELEC) en banc. Said Resolution denied the Motion for
Reconsideration of the earlier Resolution3 dated 24 July 2007 of the
COMELEC Second Division in SPA No. 07-224, ordering the
disqualification of herein petitioner Rosalinda A. Penera (Penera) as a
candidate for the position of mayor of the Municipality of Sta. Monica,
Surigao del Norte (Sta. Monica) in the 2007 Synchronized National and
Local Elections.
The antecedents of the case, both factual and procedural, are set forth
hereunder:
Penera and private respondent Edgar T. Andanar (Andanar) were
mayoralty candidates in Sta. Monica during the 14 May 2007 elections.
On 2 April 2007, Andanar filed before the Office of the Regional Election
Director (ORED), Caraga Region (Region XIII), a Petition for
Disqualification4 against Penera, as well as the candidates for Vice-Mayor
and Sangguniang Bayan who belonged to her political party,5 for
unlawfully engaging in election campaigning and partisan political activity
prior to the commencement of the campaign period. The petition was
docketed as SPA No. 07-224.
Andanar claimed that on 29 March 2007 – a day before the start of the
authorized campaign period on 30 March 2007 – Penera and her
partymates went around the different barangays in Sta. Monica,
announcing their candidacies and requesting the people to vote for them
on the day of the elections. Attached to the Petition were the Affidavits of
individuals6 who witnessed the said incident.
Penera alone filed an Answer7 to the Petition on 19 April 2007, averring
that the charge of premature campaigning was not true. Although Penera
admitted that a motorcade did take place, she explained that it was
simply in accordance with the usual practice in nearby cities and
provinces, where the filing of certificates of candidacy (COCs) was
preceded by a motorcade, which dispersed soon after the completion of
such filing. In fact, Penera claimed, in the motorcade held by her political
party, no person made any speech, not even any of the candidates.
Instead, there was only marching music in the background and "a grand
standing for the purpose of raising the hands of the candidates in the
motorcade." Finally, Penera cited Barroso v. Ampig8 in her defense,
wherein the Court supposedly ruled that a motorcade held by candidates
during the filing of their COCs was not a form of political campaigning.
Also on 19 April 2007, Andanar and Penera appeared with their counsels
before the ORED-Region XIII, where they agreed to submit their position
papers and other evidence in support of their allegations.9
After the parties filed their respective Position Papers, the records of the
case were transmitted to the COMELEC main office in Manila for
adjudication. It was subsequently raffled to the COMELEC Second
Division.1avvphi1
While SPA No. 07-224 was pending before the COMELEC Second
Division, the 14 May 2007 elections took place and, as a result thereof,
Penera was proclaimed the duly elected Mayor of Sta. Monica. Penera
soon assumed office on 2 July 2002.
On 24 July 2007, the COMELEC Second Division issued its Resolution in
SPA No. 07-224, penned by Commissioner Nicodemo T. Ferrer (Ferrer),
which disqualified Penera from continuing as a mayoralty candidate in
Sta. Monica, for engaging in premature campaigning, in violation of
Sections 80 and 68 of the Omnibus Election Code.
The COMELEC Second Division found that:
On the afternoon of 29 March 2007, the 1st [sic] day to file the certificates
of candidacy for local elective positions and a day before the start of the
campaign period for the May 14, 2007 elections – [some of the members
of the political party Partido Padajon Surigao], headed by their mayoralty
candidate "Datty" Penera, filed their respective Certificates of Candidacy
before the Municipal Election Officer of Sta. Monica, Surigao del Norte.
Accompanied by a bevy of supporters, [Penera and her partymates]
came to the municipal COMELEC office on board a convoy of two (2)
trucks and an undetermined number of motorcycles, laden with balloons
ad [sic] posters/banners containing names and pictures and the municipal
positions for which they were seeking election. Installed with [sic] one of
the trucks was a public speaker sound subsystem which broadcast [sic]
the intent the [sic] run in the coming elections. The truck had the posters
of Penera attached to it proclaiming his [sic] candidacy for mayor. The
streamer of [Mar Longos, a candidate for the position of Board Member,]
was proudly seen at the vehicle’s side. The group proceeded to
motorcade until the barangays of Bailan, Libertad and as afar [sic] as
Mabini almost nine (9) kilometers from Sta. Monica. [Penera and her
partymates] were seen aboard the vehicles and throwing candies to the
residents and onlookers.
Various affidavits and pictures were submitted elucidating the above-
mentioned facts. The above facts were also admitted in the Answer, the
Position Paper and during the hearings conducted for this case, the only
defense propounded by [Penera] is that such acts allegedly do not
constitute campaigning and is therefore not proscribed by the pertinent
election laws.
xxxx
What we however find disturbing is [Penera’s] reference to the Ampig
Case as the justification for the acts committed by [her]. There is really no
reference to the acts or similar acts committed by [Penera] as having
been considered as not constituting political campaign or partisan political
activity. The issue in that case is whether or not the defect of the lack of a
certification against non-forum [sic] shopping should result to the
immediate dismissal of the election cases filed in that case. There is
nothing in said case justifying a motorcade during the filing of certificates
of candidacy. [Penera’s] reliance thereon is therefore misplaced and of
no potency at all.
xxxx
However, the photos submitted by [Andanar] only identified [Penera] and
did not have any notation identifying or indicating any of the other
[candidates from Penera’s party]. It cannot be conclusively proven that
the other [candidates from Penera’s party] were indeed with Penera
during the Motorcade. More importantly, the Answer and the Position
Paper contain admissions referring only to [Penera]. There is therefore no
justification for a whole sale [sic] disqualification of all the [candidates
from Penera’s party], as even the petition failed to mention particularly
the participation of the other individual [party members].10
The afore-quoted findings of fact led the COMELEC Second Division to
decree:
PREMISES CONSIDERED, this Commission resolves to disqualify
[Penera] but absolves the other [candidates from Penera’s party] from
violation of section 80 and 68 of the Omnibus Elections [sic] Code.11
Commissioner Florentino A. Tuason, Jr. (Tuason) wrote a Separate
Opinion12 on the 24 July 2007 Resolution. Although Commissioner
Tuason concurred with the ponente, he stressed that, indeed, Penera
should be made accountable for her actions after the filing of her COC on
29 March 2007. Prior thereto, there was no candidate yet whose
candidacy would have been enhanced by the premature campaigning.
It was the third member of the COMELEC Second Division,
Commissioner Rene V. Sarmiento (Sarmiento) who put forth a Dissenting
Opinion13 on the 24 July 2007 Resolution. Commissioner Sarmiento
believed that the pieces of evidence submitted by Andanar did not
sufficiently establish probable cause that Penera engaged in premature
campaigning, in violation of Sections 80 and 68 of the Omnibus Election
Code. The two photocopied pictures, purporting to be those of Penera,
did not clearly reveal what was actually happening in the truck or who
were the passengers thereof. Likewise, the Affidavits seemed to have
been prepared and executed by one and the same person because they
had similar sentence construction and form, and they were sworn to
before the same attesting officer.
Penera filed before the COMELEC en banc a Motion for
Reconsideration14 of the 24 July 2007 Resolution of the COMELEC
Second Division, maintaining that she did not make any admission on the
factual matters stated in the appealed resolution. Penera also contended
that the pictures and Affidavits submitted by Andanar should not have
been given any credence. The pictures were mere photocopies of the
originals and lacked the proper authentication, while the Affidavits were
taken ex parte, which would almost always make them incomplete and
inaccurate. Subsequently, Penera filed a Supplemental Motion for
Reconsideration,15 explaining that supporters spontaneously
accompanied Penera and her fellow candidates in filing their COCs, and
the motorcade that took place after the filing was actually part of the
dispersal of said supporters and their transportation back to their
respective barangays.
In the Resolution dated 30 January 2008, the COMELEC en banc denied
Penera’s Motion for Reconsideration, disposing thus:
WHEREFORE, this Commission RESOLVES to DENY the instant Motion
for Reconsideration filed by [Penera] for UTTER LACK OF MERIT.16
The COMELEC en banc ruled that Penera could no longer advance the
arguments set forth in her Motion for Reconsideration and Supplemental
Motion for Reconsideration, given that she failed to first express and
elucidate on the same in her Answer and Position Paper. Penera did not
specifically deny the material averments that the motorcade "went as far
as Barangay Mabini, announcing their candidacy and requesting the
people to vote for them on Election Day," despite the fact that the same
were clearly propounded by Andanar in his Petition for Disqualification
and Position Paper. Therefore, these material averments should be
considered admitted. Although the COMELEC en banc agreed that no
undue importance should be given to sworn statements or affidavits
submitted as evidence, this did not mean that such affidavits should not
be given any evidentiary weight at all. Since Penera neither refuted the
material averments in Andanar’s Petition and the Affidavits attached
thereto nor submitted countervailing evidence, then said Affidavits, even
if taken ex parte, deserve some degree of importance. The COMELEC en
banc likewise conceded that the pictures submitted by Andanar as
evidence would have been unreliable, but only if they were presented by
their lonesome. However, said pictures, together with Penera’s
admissions and the Affidavits of Andanar’s witnesses, constituted
sufficient evidence to establish Penera’s violation of the rule against
premature campaigning. Lastly, the COMELEC en banc accused Penera
of deliberately trying to mislead the Commission by citing Barroso, given
that the said case was not even remotely applicable to the case at bar.
Consistent with his previous stand, Commissioner Sarmiento again
dissented17 from the 30 January 2008 Resolution of the COMELEC en
banc. He still believed that Andanar was not able to adduce substantial
evidence that would support the claim of violation of election laws.
Particularly, Commissioner Sarmiento accepted Penera’s explanation
that the motorcade conducted after the filing by Penera and the other
candidates of their COCs was merely part of the dispersal of the
spontaneous gathering of their supporters. The incident was only in
accord with normal human social experience.
Still undeterred, Penera filed the instant Petition before us, praying that
the Resolutions dated 24 July 2007 and 30 January 2008 of the
COMELEC Second Division and en banc, respectively, be declared null
and void for having been issued with grave abuse of discretion amounting
to lack or excess of jurisdiction.
In a Resolution18 dated 4 March 2008, we issued a Temporary
Restraining Order (TRO), enjoining the COMELEC from implementing the
assailed Resolutions, on the condition that Penera post a bond in the
amount of ₱5,000.00. We also directed COMELEC and Andanar to
comment on the instant Petition.
After the COMELEC, through the Office of the Solicitor General (OSG),
and Andanar filed their respective Comments19 on the Petition at bar, we
required Penera, in a Resolution20 dated 17 June 2008, to file a Reply.
However, as no Reply was filed in due time, we dismissed Penera’s
Petition in a Resolution21 dated 14 October 2008, in accordance with Rule
56, Section 5(e) of the Rules of Court.22 Penera subsequently filed an Ex
Parte Motion to Admit Reply,23 which we treated as a Motion for
Reconsideration of the Resolution dated 14 October 2008. On 11
November 2008, we issued another Resolution reinstating Penera’s
Petition.24
Penera presents the following issues for our consideration:
 I.
Whether or not [Penera] has engaged in an election campaign or partisan
political activity outside the campaign period.
II.
Whether the contents of the complaint are deemed admitted for failure of
[Penera] to specifically deny the same.
III.
Whether or not [Andanar] has presented competent and substantial
evidence to justify a conclusion that [Penera] violated Section 80 and 68
of the Omnibus Election Code.
IV.
Whether or not [the COMELEC] committed grave abuse of discretion
amounting to lack of or in excess of jurisdiction in finding that the act of
[Penera] in conducting a motorcade before the filing of her certificate of
candidacy constitutes premature campaigning.
V.
Whether or not [the COMELEC] committed grave abuse of discretion
amounting to lack of or in excess of jurisdiction when it resolves [sic] to
disqualify [Penera] despite the failure of [Andanar] to present competent,
admissible and substantial evidence to prove [the] violation of Section 68
and 80 of the Omnibus Election Code.
Penera claims that the COMELEC exercised its discretion despotically,
arbitrarily and whimsically in disqualifying her as a mayoralty candidate in
Sta. Monica on the ground that she engaged in premature campaigning.
She asserts that the evidence adduced by Andanar was grossly
insufficient to warrant the ruling of the COMELEC.
Penera insists that the COMELEC Second Division erred in its findings of
fact, basically adopting Andanar’s allegations which, contrary to the belief
of the COMELEC Second Division, Penera never admitted. Penera
maintains that the motorcade was spontaneous and unplanned, and the
supporters merely joined Penera and the other candidates from her party
along the way to, as well as within the premises of, the office of the
COMELEC Municipal Election Officer. Andanar’s averments – that after
Penera and the other candidates from her party filed their COCs, they
held a motorcade in the different barangays of Sta. Monica, waived their
hands to the public and threw candies to the onlookers – were not
supported by competent substantial evidence. Echoing Commissioner
Sarmiento’s dissent from the assailed COMELEC Resolutions, Penera
argues that too much weight and credence were given to the pictures and
Affidavits submitted by Andanar. The declaration by the COMELEC that it
was Penera in the pictures is tenuous and erroneous, as the COMELEC
has no personal knowledge of Penera’s identity, and the said pictures do
not clearly reveal the faces of the individuals and the contents of the
posters therein. In the same vein, the Affidavits of Andanar’s known
supporters, executed almost a month after Andanar filed his Petition for
Disqualification before the ORED-Region XIII, were obviously prepared
and executed by one and the same person, because they have a similar
sentence construction, and computer font and form, and were even
sworn to before the same attesting officer on the same date.
We find no merit in the instant Petition.
The questions of fact
Crystal clear from the above arguments is that Penera is raising only
questions of fact in her Petition presently before us. We do not find any
reason to pass upon the same, as this Court is not a trier of facts. It is not
the function of the Court to review, examine and evaluate or weigh the
probative value of the evidence presented. A question of fact would arise
in such an event.
The sole function of a writ of certiorari is to address issues of want of
jurisdiction or grave abuse of discretion, and it does not include a review
of the tribunal’s evaluation of the evidence.25 Because of its fact-finding
facilities and its knowledge derived from actual experience, the
COMELEC is in a peculiarly advantageous position to evaluate,
appreciate and decide on factual questions before it. Factual findings of
the COMELEC, based on its own assessments and duly supported by
evidence, are conclusive on this Court, more so in the absence of a grave
abuse of discretion, arbitrariness, fraud, or error of law in the questioned
resolutions. Unless any of these causes are clearly substantiated, the
Court will not interfere with the findings of fact of the COMELEC.26
Grave abuse of discretion is such capricious and whimsical exercise of
judgment equivalent to lack of jurisdiction. Mere abuse of discretion is not
enough. It must be grave, as when it is exercised arbitrarily or
despotically by reason of passion or personal hostility. The abuse must
be so patent and so gross as to amount to an evasion of a positive duty
or to a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.27
We find no grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the COMELEC Second Division in disqualifying
Penera as a mayoralty candidate in Sta. Monica in the Resolution dated
24 July 2007; and also on the part of the COMELEC en banc in denying
Penera’s Motion for Reconsideration on the Resolution dated 30 January
2008. Said Resolutions are sufficiently supported by substantial
evidence, meaning, such evidence as a reasonable mind might accept as
adequate to support a conclusion.28
The prohibited act of premature campaigning is defined under Section 80
of the Omnibus Election Code, to wit:
SECTION 80. Election campaign or partisan political activity outside
campaign period. — It shall be unlawful for any person, whether or
not a voter or candidate, or for any party, or association of persons,
to engage in an election campaign or partisan political activity
except during the campaign period: Provided, That political parties
may hold political conventions or meetings to nominate their official
candidates within thirty days before the commencement of the campaign
period and forty-five days for Presidential and Vice-Presidential election.
(Emphasis ours.)
If the commission of the prohibited act of premature campaigning is duly
proven, the consequence of the violation is clearly spelled out in Section
68 of the said Code, which reads:
SECTION. 68. Disqualifications. - Any candidate who, in an action or
protest in which he is a party is declared by final decision of a competent
court guilty of, or found by the Commission of having xxx (e) violated
any of Sections80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc,
subparagraph 6, shall be disqualified from continuing as a candidate,
or if he has been elected, from holding the office. Any person who is
a permanent resident of or an immigrant to a foreign country shall not be
qualified to run for any elective office under this Code, unless said person
has waived his status as permanent resident or immigrant of a foreign
country in accordance with the residence requirement provided for in the
election laws. (Emphases ours.)
In the case at bar, it had been sufficiently established, not just by
Andanar’s evidence, but also those of Penera herself, that Penera and
her partymates, after filing their COCs on 29 March 2007, participated in
a motorcade which passed through the different barangays of Sta.
Monica, waived their hands to the public, and threw candies to the
onlookers.
Indeed, Penera expressly admitted in her Position Paper that:
Respondents actually had a motorcade of only two (2) jeppneys [sic] and
ten (10) motorcycles after filing their Certificate of Candidacy at 3:00
P.M., March 29, 2007 without any speeches made and only one streamer
of a board member Candidate and multi-colored balloons attached to the
jeppneys [sic] and motorcycles.29 (Emphasis ours.)
Additionally, the Joint Affidavit of Marcial Dolar, Allan Llatona, and
Renante Platil, attached to Penera’s Position Paper, gave an even more
straightforward account of the events, thus:
1. That on March 29, 2007 at 3:00 P.M. at Sta. Monica, Surigao
del Norte, Mayoralty Candidates Rosalinda CA. Penera [sic] and
her parties of four (4) kagawads filed their certificate of candidacy
at the COMELEC Office;
2. That their [sic] was a motorcade consisting of two jeppneys
[sic] and 10 motorcycles after actual registration with the
COMELEC with jeeps decorated with balloons and a streamer of
Margarito Longos, Board Member Candidate;
3. That the motorcade proceeded to three (3) barangays out of
the 11 barangays while supporters were throwing sweet candies
to the crowd;
4. That there was merriment and marching music without mention
of any name of the candidates more particularly lead-candidate
Rosalinda CA. Penera [sic];
5. That we were in the motorcade on that afternoon only riding in
one of the jeepneys.30 (Emphases ours.)
In view of the foregoing admissions by Penera and her witnesses, Penera
cannot now be allowed to adopt a conflicting position.
More importantly, the conduct of a motorcade is a form of election
campaign or partisan political activity, falling squarely within the ambit of
Section 79(b)(2) of the Omnibus Election Code, on "[h]olding political
caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking any
campaign or propaganda for or against a candidate[.]" A motorcade is a
procession or parade of automobiles or other motor vehicles.31 The
conduct thereof during election periods by the candidates and their
supporters is a fact that need not be belabored due to its widespread and
pervasive practice. The obvious purpose of the conduct of motorcades is
to introduce the candidates and the positions, to which they seek to be
elected, to the voting public; or to make them more visible so as to
facilitate the recognition and recollection of their names in the minds of
the voters come election time. Unmistakably, motorcades are undertaken
for no other purpose than to promote the election of a particular
candidate or candidates.
In the instant Petition, Penera never denied that she took part in the
conduct of the motorcade after she filed her COC on the day before the
start of the campaign period. She merely claimed that the same was not
undertaken for campaign purposes. Penera proffered the excuse that the
motorcade was already part of the dispersal of the supporters who
spontaneously accompanied Penera and her partymates in filing their
COCs. The said supporters were already being transported back to their
respective barangays after the COC filing. Penera stressed that no
speech was made by any person, and there was only background
marching music and a "grand standing for the purpose of raising the
hands of the candidates in the motorcade.
We are not convinced.
As we previously noted, Penera and her witnesses admitted that the
vehicles, consisting of two jeepneys and ten motorcycles, were festooned
with multi-colored balloons; the motorcade went around three barangays
in Sta. Monica; and Penera and her partymates waved their hands and
threw sweet candies to the crowd. With vehicles, balloons, and even
candies on hand, Penera can hardly persuade us that the motorcade was
spontaneous and unplanned.
For violating Section 80 of the Omnibus Election Code, proscribing
election campaign or partisan political activity outside the campaign
period, Penera must be disqualified from holding the office of Mayor of
Sta. Monica.
The questions of law
The dissenting opinion, however, raises the legal issue that Section 15 of
Republic Act No. 8436, as amended by Republic Act No. 9369, provides
a new definition of the term "candidate," as a result of which, premature
campaigning may no longer be committed.
Under Section 79(a) of the Omnibus Election Code, a candidate is "any
person aspiring for or seeking an elective public office, who has filed a
certificate of candidacy by himself or through an accredited political party,
aggroupment, or coalition of parties."
Republic Act No. 8436,32 enacted on 22 December 1997, authorized the
COMELEC to use an automated election system for the process of
voting, counting of votes, and canvassing/consolidating the results of the
national and local elections. The statute also mandated the COMELEC to
acquire automated counting machines, computer equipment, devices and
materials; and to adopt new electoral forms and printing materials. In
particular, Section 11 of Republic Act No. 8436 provided for the
specifications of the official ballots to be used in the automated election
system and the guidelines for the printing thereof, the relevant portions of
which state:
SECTION 11. Official ballot. - The Commission shall prescribe the size
and form of the official ballot which shall contain the titles of the positions
to be filled and/or the propositions to be voted upon in an initiative,
referendum or plebiscite. Under each position, the names of candidates
shall be arranged alphabetically by surname and uniformly printed using
the same type size. A fixed space where the chairman of the Board of
Election inspectors shall affix his/her signature to authenticate the official
ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to participate in the
election shall not be later than one hundred twenty (120) days before the
elections: Provided, That, any elective official, whether national or local,
running for any office other than the one which he/she is holding in a
permanent capacity, except for president and vice-president, shall be
deemed resigned only upon the start of the campaign period
corresponding to the position for which he/she is running: Provided,
further, That, unlawful acts or omissions applicable to a candidate shall
take effect upon the start of the aforesaid campaign period: Provided,
finally, That, for purposes of the May 11, 1998 elections, the deadline for
filing of the certificate of candidacy for the positions of President, Vice
President, Senators and candidates under the Party-List System as well
as petitions for registration and/or manifestation to participate in the
Party-List System shall be on February 9, 1998 while the deadline for the
filing of certificate of candidacy for other positions shall be on March 27,
1998. (Emphases ours.)
On 10 February 2007, Republic Act No. 936933 took effect. Section 13 of
Republic Act No. 9369 amended Section 11 of Republic Act No. 8436
and renumbered the same as the new Section 15 of Republic Act No.
8436. The pertinent portions of Section 15 of Republic Act No. 8436, as
amended by Republic Act No. 9369, now read:
SECTION.15. Official Ballot. - The Commission shall prescribe the format
of the electronic display and/or the size and form of the official ballot,
which shall contain the titles of the position to be filled and/or the
proposition to be voted upon in an initiative, referendum or plebiscite.
Where practicable, electronic displays must be constructed to present the
names of all candidates for the same position in the same page or
screen, otherwise, the electronic displays must be constructed to present
the entire ballot to the voter, in a series of sequential pages, and to
ensure that the voter sees all of the ballot options on all pages before
completing his or her vote and to allow the voter to review and change all
ballot choices prior to completing and casting his or her ballot. Under
each position to be filled, the names of candidates shall be arranged
alphabetically by surname and uniformly indicated using the same type
size. The maiden or married name shall be listed in the official ballot, as
preferred by the female candidate. Under each proposition to be vote
upon, the choices should be uniformly indicated using the same font and
size.
A fixed space where the chairman of the board of election inspector shall
affix her/her signature to authenticate the official ballot shall be provided.
For this purpose, the Commission shall set the deadline for the filing of
certificate of candidacy/petition of registration/manifestation to participate
in the election. Any person who files his certificate of candidacy within
this period shall only be considered as a candidate at the start of the
campaign period for which he filed his certificate of candidacy: Provided,
That, unlawful acts or omissions applicable to a candidate shall effect
only upon the start of the aforesaid campaign period: Provided, finally,
That any person holding a public appointive office or position, including
active members of the armed forces, and officers, and employees in
government-owned or-controlled corporations, shall be considered ipso
factor resigned from his/her office and must vacate the same at the start
of the day of the filing of his/her certification of candidacy. (Emphases
ours.)
In view of the third paragraph of Section 15 of Republic Act No. 8436, as
amended, the Dissenting Opinion argues that Section 80 of the Omnibus
Election Code can not be applied to the present case since, as the Court
held in Lanot v. Commission on Elections,34 the election campaign or
partisan activity, which constitute the prohibited premature campaigning,
should be designed to promote the election or defeat of a particular
candidate or candidates. Under present election laws, while a person
may have filed his/her COC within the prescribed period for doing so,
said person shall not be considered a candidate until the start of the
campaign period. Thus, prior to the start of the campaign period, there
can be no election campaign or partisan political activity designed to
promote the election or defeat of a particular candidate to public office
because there is no candidate to speak of.
According to the Dissenting Opinion, even if Penera’s acts before the
start of the campaign period constitute election campaigning or partisan
political activities, these are not punishable under Section 80 of the
Omnibus Election Code given that she was not yet a candidate at that
time. On the other hand, Penera’s acts, if committed within the campaign
period, when she was already a candidate, are likewise not covered by
Section 80 as this provision punishes only acts outside the campaign
period.
The Dissenting Opinion ultimately concludes that because of Section 15
of Republic Act No. 8436, as amended, the prohibited act of premature
campaigning in Section 80 of the Omnibus Election Code, is practically
impossible to commit at any time.
We disagree. Section 80 of the Omnibus Election Code remains relevant
and applicable despite Section 15 of Republic Act No. 8436, as
amended.
A close reading of the entire Republic Act No. 9369, which amended
Republic Act No. 8436, would readily reveal that that it did not contain an
express repeal of Section 80 of the Omnibus Election Code. An express
repeal is one wherein a statute declares, usually in its repealing clause,
that a particular and specific law, identified by its number or title, is
repealed.35 Absent this specific requirement, an express repeal may not
be presumed.
Although the title of Republic Act No. 9369 particularly mentioned the
amendment of Batas Pambansa Blg. 881, or the Omnibus Election Code,
to wit:
An Act Amending Republic Act No. 8436, Entitled "An Act Authorizing the
Commission on Elections to Use an Automated Election System x x
x, Amending for the Purpose Batas Pambansa Blg. 881, As
Amended x x x. (Emphasis ours.),
said title explicitly mentions, not the repeal, but the amendment of Batas
Pambansa Blg. 881. Such fact is indeed very material. Repeal of a law
means its complete abrogation by the enactment of a subsequent statute,
whereas the amendment of a statute means an alteration in the law
already existing, leaving some part of the original still standing.36 Section
80 of the Omnibus Election Code is not even one of the specific
provisions of the said code that were expressly amended by Republic Act
No. 9369.
Additionally, Section 46,37 the repealing clause of Republic Act No. 9369,
states that:
Sec. 46. Repealing Clause. – All laws, presidential decrees, executive
orders, rules and regulations or parts thereof inconsistent with the
provisions of this Act are hereby repealed or modified accordingly.
Section 46 of Republic Act No. 9369 is a general repealing clause. It is a
clause which predicates the intended repeal under the condition that a
substantial conflict must be found in existing and prior acts. The failure to
add a specific repealing clause indicates that the intent was not to repeal
any existing law, unless an irreconcilable inconsistency and repugnancy
exist in the terms of the new and old laws. This latter situation falls under
the category of an implied repeal.38
Well-settled is the rule in statutory construction that implied repeals are
disfavored. In order to effect a repeal by implication, the later statute must
be so irreconcilably inconsistent and repugnant with the existing law that
they cannot be made to reconcile and stand together. The clearest case
possible must be made before the inference of implied repeal may be
drawn, for inconsistency is never presumed. There must be a showing of
repugnance clear and convincing in character. The language used in the
later statute must be such as to render it irreconcilable with what had
been formerly enacted. An inconsistency that falls short of that standard
does not suffice.39
Courts of justice, when confronted with apparently conflicting statutes,
should endeavor to reconcile the same instead of declaring outright the
invalidity of one as against the other. Such alacrity should be avoided.
The wise policy is for the judge to harmonize them if this is possible,
bearing in mind that they are equally the handiwork of the same
legislature, and so give effect to both while at the same time also
according due respect to a coordinate department of the government.40
To our mind, there is no absolute and irreconcilable incompatibility
between Section 15 of Republic Act No. 8436, as amended, and Section
80 of the Omnibus Election Code, which defines the prohibited act of
premature campaigning. It is possible to harmonize and reconcile these
two provisions and, thus, give effect to both.
The following points are explanatory:
First, Section 80 of the Omnibus Election Code, on premature
campaigning, explicitly provides that "[i]t shall be unlawful for any person,
whether or not a voter or candidate, or for any party, or association of
persons, to engage in an election campaign or partisan political activity,
except during the campaign period." Very simply, premature campaigning
may be committed even by a person who is not a candidate.
For this reason, the plain declaration in Lanot that "[w]hat Section 80 of
the Omnibus Election Code prohibits is ‘an election campaign or partisan
political activity’ by a ‘candidate’ ‘outside’ of the campaign period,"41 is
clearly erroneous.
Second, Section 79(b) of the Omnibus Election Code defines election
campaign or partisan political activity in the following manner:
SECTION 79. Definitions. - As used in this Code:
xxxx
(b) The term "election campaign" or "partisan political activity" refers to an
act designed to promote the election or defeat of a particular candidate or
candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees or
other groups of persons for the purpose of soliciting votes and/or
undertaking any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies,
parades, or other similar assemblies, for the purpose of soliciting
votes and/or undertaking any campaign or propaganda for or
against a candidate;
(3) Making speeches, announcements or commentaries, or
holding interviews for or against the election of any candidate for
public office;
(4) Publishing or distributing campaign literature or materials
designed to support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or
against a candidate.
True, that pursuant to Section 15 of Republic Act No. 8436, as amended,
even after the filing of the COC but before the start of the campaign
period, a person is not yet officially considered a candidate.
Nevertheless, a person, upon the filing of his/her COC, already explicitly
declares his/her intention to run as a candidate in the coming elections.
The commission by such a person of any of the acts enumerated under
Section 79(b) of the Omnibus Election Code (i.e., holding rallies or
parades, making speeches, etc.) can, thus, be logically and reasonably
construed as for the purpose of promoting his/her intended candidacy.
When the campaign period starts and said person proceeds with his/her
candidacy, his/her intent turning into actuality, we can already consider
his/her acts, after the filing of his/her COC and prior to the campaign
period, as the promotion of his/her election as a candidate, hence,
constituting premature campaigning, for which he/she may be
disqualified. Also, conversely, if said person, for any reason, withdraws
his/her COC before the campaign period, then there is no point to view
his/her acts prior to said period as acts for the promotion of his/her
election as a candidate. In the latter case, there can be no premature
campaigning as there is no candidate, whose disqualification may be
sought, to begin with.42
Third, in connection with the preceding discussion, the line in Section 15
of Republic Act No. 8436, as amended, which provides that "any unlawful
act or omission applicable to a candidate shall take effect only upon the
start of the campaign period," does not mean that the acts constituting
premature campaigning can only be committed, for which the offender
may be disqualified, during the campaign period. Contrary to the
pronouncement in the dissent, nowhere in the said proviso was it stated
that campaigning before the start of the campaign period is lawful, such
that the offender may freely carry out the same with impunity.
As previously established, a person, after filing his/her COC but prior to
his/her becoming a candidate (thus, prior to the start of the campaign
period), can already commit the acts described under Section 79(b) of the
Omnibus Election Code as election campaign or partisan political activity.
However, only after said person officially becomes a candidate, at the
beginning of the campaign period, can said acts be given effect as
premature campaigning under Section 80 of the Omnibus Election Code.
Only after said person officially becomes a candidate, at the start of the
campaign period, can his/her disqualification be sought for acts
constituting premature campaigning. Obviously, it is only at the start of
the campaign period, when the person officially becomes a candidate,
that the undue and iniquitous advantages of his/her prior acts,
constituting premature campaigning, shall accrue to his/her benefit.
Compared to the other candidates who are only about to begin their
election campaign, a candidate who had previously engaged in
premature campaigning already enjoys an unfair headstart in promoting
his/her candidacy.
As can be gleaned from the foregoing disquisition, harmony in the
provisions of Sections 80 and 79 of the Omnibus Election Code, as well
as Section 15 of Republic Act No. 8436, as amended, is not only very
possible, but in fact desirable, necessary and consistent with the
legislative intent and policy of the law.
The laudable and exemplary intention behind the prohibition against
premature campaigning, as declared in Chavez v. Commission on
Elections,43 is to level the playing field for candidates of public office, to
equalize the situation between the popular or rich candidates, on one
hand, and lesser-known or poorer candidates, on the other, by preventing
the former from enjoying undue advantage in exposure and publicity on
account of their resources and popularity. The intention for prohibiting
premature campaigning, as explained in Chavez, could not have been
significantly altered or affected by Republic Act No. 8436, as amended by
Republic Act No. 9369, the avowed purpose of which is to carry-on the
automation of the election system. Whether the election would be held
under the manual or the automated system, the need for prohibiting
premature campaigning – to level the playing field between the popular or
rich candidates, on one hand, and the lesser-known or poorer
candidates, on the other, by allowing them to campaign only within the
same limited period – remains.
We cannot stress strongly enough that premature campaigning is a
pernicious act that is continuously threatening to undermine the conduct
of fair and credible elections in our country, no matter how great or small
the acts constituting the same are. The choice as to who among the
candidates will the voting public bestow the privilege of holding public
office should not be swayed by the shrewd conduct, verging on bad faith,
of some individuals who are able to spend resources to promote their
candidacies in advance of the period slated for campaign activities.
Verily, the consequences provided for in Section 6844 of the Omnibus
Election Code for the commission of the prohibited act of premature
campaigning are severe: the candidate who is declared guilty of
committing the offense shall be disqualified from continuing as a
candidate, or, if he/she has been elected, from holding office. Not to
mention that said candidate also faces criminal prosecution for an
election offense under Section 262 of the same Code.
The Dissenting Opinion, therefore, should not be too quick to pronounce
the ineffectiveness or repeal of Section 80 of the Omnibus Election Code
just because of a change in the meaning of candidate by Section 15 of
Republic Act No. 8436, as amended, primarily, for administrative
purposes. An interpretation should be avoided under which a statute or
provision being construed is defeated, or as otherwise expressed,
nullified, destroyed, emasculated, repealed, explained away, or rendered
insignificant, meaningless, inoperative, or nugatory.45 Indeed, not only will
the prohibited act of premature campaigning be officially decriminalized,
the value and significance of having a campaign period before the
conduct of elections would also be utterly negated. Any unscrupulous
individual with the deepest of campaign war chests could then afford to
spend his/her resources to promote his/her candidacy well ahead of
everyone else. Such is the very evil that the law seeks to prevent. Our
lawmakers could not have intended to cause such an absurd situation.
The Dissenting Opinion attempts to brush aside our preceding arguments
by contending that there is no room for statutory construction in the
present case since Section 15 of Republic Act No. 8436,46 as amended
by Section 13 of Republic Act No. 9369,47 is crystal clear in its meaning.
We disagree. There would only be no need for statutory construction if
there is a provision in Republic Act No. 8436 or Republic Act No. 9369
that explicitly states that there shall be no more premature campaigning.
But absent the same, our position herein, as well as that of the Dissenting
Opinion, necessarily rest on our respective construction of the legal
provisions involved in this case.
Notably, while faulting us for resorting to statutory construction to resolve
the instant case, the Dissenting Opinion itself cites a rule of statutory
construction, particularly, that penal laws should be liberally construed in
favor of the offender. The Dissenting Opinion asserts that because of the
third paragraph in Section 15 of Republic Act No. 8436, as amended, the
election offense described in Section 80 of the Omnibus Election Code is
practically impossible to commit at any time and that this flaw in the law,
which defines a criminal act, must be construed in favor of Penera, the
offender in the instant case.
The application of the above rule is uncalled for. It was acknowledged in
Lanot that a disqualification case has two aspects: one, electoral;48 the
other, criminal.49 The instant case concerns only the electoral aspect of
the disqualification case. Any discussion herein on the matter of Penera’s
criminal liability for premature campaigning would be nothing more than
obiter dictum. More importantly, as heretofore already elaborated upon,
Section 15 of Republic Act No. 8436, as amended, did not expressly or
even impliedly repeal Section 80 of the Omnibus Election Code, and
these two provisions, based on legislative intent and policy, can be
harmoniously interpreted and given effect. Thus, there is no flaw created
in the law, arising from Section 15 of Republic Act No. 8436, as
amended, which needed to be construed in Penera’s favor.
The Dissenting Opinion further expresses the fear that pursuant to our
"theory," all the politicians with "infomercials" prior to the filing of their
COCs would be subject to disqualification, and this would involve
practically all the prospective presidential candidates who are now
leading in the surveys.
This fear is utterly unfounded. It is the filing by the person of his/her COC
through which he/she explicitly declares his/her intention to run as a
candidate in the coming elections. It is such declaration which would
color the subsequent acts of said person to be election campaigning or
partisan political activities as described under Section 79(b) of the
Omnibus Election Code. It bears to point out that, at this point, no
politician has yet submitted his/her COC. Also, the plain solution to this
rather misplaced apprehension is for the politicians themselves to adhere
to the letter and intent of the law and keep within the bounds of fair play
in the pursuit of their candidacies. This would mean that after filing their
COCs, the prudent and proper course for them to take is to wait for the
designated start of the campaign period before they commence their
election campaign or partisan political activities. Indeed, such is the only
way for them to avoid disqualification on the ground of premature
campaigning. It is not for us to carve out exceptions to the law, much
more to decree away the repeal thereof, in order to accommodate any
class of individuals, where no such exception or repeal is warranted.
Lastly, as we have observed at the beginning, Penera’s Petition is
essentially grounded on questions of fact. Penera’s defense against her
disqualification, before the COMELEC and this Court, rests on the
arguments that she and her partymates did not actually hold a
motorcade; that their supporters spontaneously accompanied Penera and
the other candidates from her political party when they filed their
certificates of candidacy; that the alleged motorcade was actually the
dispersal of the supporters of Penera and the other candidates from her
party as said supporters were dropped off at their respective barangays;
and that Andanar was not able to present competent, admissible, and
substantial evidence to prove that Penera committed premature
campaigning. Penera herself never raised the argument that she can no
longer be disqualified for premature campaigning under Section 80, in
relation to Section 68, of the Omnibus Election Code, since the said
provisions have already been, in the words of the Dissenting Opinion,
rendered "inapplicable," "repealed," and "done away with" by Section 15
of Republic Act No. 8436, as amended. This legal argument was wholly
raised by the Dissenting Opinion.
As a rule, a party who deliberately adopts a certain theory upon which the
case is tried and decided by the lower court will not be permitted to
change theory on appeal. Points of law, theories, issues, and arguments
not brought to the attention of the lower court need not be, and ordinarily
will not be, considered by a reviewing court, as these cannot be raised for
the first time at such late stage. Basic considerations of due process
underlie this rule.50 If we do not allow and consider the change in theory
of a case by a party on appeal, should we not also refrain from motu
proprio adopting a theory which none of the parties even raised before
us?
Nonetheless, the questions of fact raised by Penera and questions of law
raised by the Dissenting Opinion must all be resolved against Penera.
Penera should be disqualified from holding office as Mayor of Sta.
Monica for having committed premature campaigning when, right after
she filed her COC, but still a day before the start of the campaign period,
she took part in a motorcade, which consisted of two jeepneys and ten
motorcycles laden with multi-colored balloons that went around several
barangays of Sta. Monica, and gave away candies to the crowd.
Succession
Despite the disqualification of Penera, we cannot grant Andanar’s prayer
to be allowed to assume the position of Mayor of Sta. Monica. The well-
established principle is that the ineligibility of a candidate receiving
majority votes does not entitle the candidate receiving the next highest
number of votes to be declared elected.51
In this case, the rules on succession under the Local Government Code
shall apply, to wit:
SECTION 44. Permanent Vacancies in the Offices of the Governor, Vice-
Governor, Mayor, and Vice-Mayor. – If a permanent vacancy occurs in
the office of the xxx mayor, the x x x vice-mayor concerned shall become
the x x x mayor.
xxxx
For purposes of this Chapter, a permanent vacancy arises when an
elective local official fills a higher vacant office, refuses to assume
office, fails to qualify or is removed from office, voluntarily resigns, or
is otherwise permanently incapacitated to discharge the functions of his
office. (Emphases ours.)
Considering Penera’s disqualification from holding office as Mayor of Sta.
Monica, the proclaimed Vice-Mayor shall then succeed as Mayor.
WHEREFORE, premises considered, the instant Petition for Certiorari is
hereby DISMISSED. The Resolutions dated 24 July 2007 and 30 January
2008 of the COMELEC Second Division and en banc, respectively, in
SPA No. 07-224 are hereby AFFIRMED. In view of the disqualification of
petitioner Rosalinda A. Penera from running for the office of Mayor of Sta.
Monica, Surigao del Norte, and the resulting permanent vacancy therein,
it is hereby DECLARED that the proclaimed Vice-Mayor is the rightful
successor to said office. The Temporary Restraining Order issued on 4
March 2008 is hereby ORDERED lifted. Costs against the petitioner.
SO ORDERED.
G.R. No. 181613               November 25, 2009
ROSALINDA A. PENERA, Petitioner,  campaign period." These two provisions determine the resolution of this
vs.
COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, Respondents.
RESOLUTION
CARPIO, J.:
We grant Rosalinda A. Penera’s (Penera) motion for reconsideration of this
Court’s Decision of 11 September 2009 (Decision).
The assailed Decision dismissed Penera’s petition and affirmed the
Resolution dated 30 July 2008 of the COMELEC En Banc as well as the
Resolution dated 24 July 2007 of the COMELEC Second Division. The
Decision disqualified Penera from running for the office of Mayor in Sta.
Monica, Surigao del Norte and declared that the Vice-Mayor should succeed
Penera.
In support of her motion for reconsideration, Penera submits the following
arguments:
1. Penera was not yet a candidate at the time of the incident under
Section 11 of RA 8436 as amended by Section 13 of RA 9369.
2. The petition for disqualification failed to submit convincing and
substantial evidence against Penera for violation of Section 80 of the
Omnibus Election Code.
3. Penera never admitted the allegations of the petition for
disqualification and has consistently disputed the charge of
premature campaigning.
4. The admission that Penera participated in a motorcade is not the
same as admitting she engaged in premature election campaigning.
Section 79(a) of the Omnibus Election Code defines a "candidate" as "any
person aspiring for or seeking an elective public office, who has filed a
certificate of candidacy x x x." The second sentence, third paragraph, Section
15 of RA 8436, as amended by Section 13 of RA 9369, provides that "[a]ny
person who files his certificate of candidacy within [the period for filing] shall
only be considered as a candidate at the start of the campaign period for
which he filed his certificate of candidacy." The immediately succeeding
proviso in the same third paragraph states that "unlawful acts or omissions
applicable to a candidate shall take effect only upon the start of the aforesaid
case.
The Decision states that "[w]hen the campaign period starts and [the person
who filed his certificate of candidacy] proceeds with his/her candidacy,
his/her intent turning into actuality, we can already consider his/her acts, after
the filing of his/her COC and prior to the campaign period, as the promotion
of his/her election as a candidate, hence, constituting premature
campaigning, for which he/she may be disqualified."1
Under the Decision, a candidate may already be liable for premature
campaigning after the filing of the certificate of candidacy but even before the
start of the campaign period. From the filing of the certificate of candidacy,
even long before the start of the campaign period, the Decision considers the
partisan political acts of a person so filing a certificate of candidacy "as the
promotion of his/her election as a candidate." Thus, such person can be
disqualified for premature campaigning for acts done before the start of the
campaign period. In short, the Decision considers a person who files a
certificate of candidacy already a "candidate" even before the start of the
campaign period. lawphil
The assailed Decision is contrary to the clear intent and letter of the law.
The Decision reverses Lanot v. COMELEC,2 which held that a person who
files a certificate of candidacy is not a candidate until the start of the
campaign period. In Lanot,  this Court explained:
Thus, the essential elements for violation of Section 80 of the Omnibus
Election Code are: (1) a person engages in an election campaign or partisan
political activity; (2) the act is designed to promote the election or defeat of a
particular candidate or candidates; (3) the act is done outside the campaign
period.
The second element requires the existence of a "candidate." Under Section
79(a), a candidate is one who "has filed a certificate of candidacy" to an
elective public office. Unless one has filed his certificate of candidacy, he is
not a "candidate." The third element requires that the campaign period has
not started when the election campaign or partisan political activity is
committed.
Assuming that all candidates to a public office file their certificates of
candidacy on the last day, which under Section 75 of the Omnibus Election
Code is the day before the start of the campaign period, then no one can be
prosecuted for violation of Section 80 for acts done prior to such last day.
Before such last day, there is no "particular candidate or candidates" to
campaign for or against. On the day immediately after the last day of filing,
the campaign period starts and Section 80 ceases to apply since Section 80
covers only acts done "outside" the campaign period.
Thus, if all candidates file their certificates of candidacy on the last day,
Section 80 may only apply to acts done on such last day, which is before the
start of the campaign period and after at least one candidate has filed his
certificate of candidacy. This is perhaps the reason why those running for
elective public office usually file their certificates of candidacy on the last day
or close to the last day.
There is no dispute that Eusebio’s acts of election campaigning or partisan
political activities were committed outside of the campaign period. The only
question is whether Eusebio, who filed his certificate of candidacy on 29
December 2003, was a "candidate" when he committed those acts before the
start of the campaign period on 24 March 2004.
Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the
filing of certificates of candidacy to 120 days before election day. Thus, the
original deadline was moved from 23 March 2004 to 2 January 2004, or 81
days earlier. The crucial question is: did this change in the deadline for filing
the certificate of candidacy make one who filed his certificate of candidacy
before 2 January 2004 immediately liable for violation of Section 80 if he
engaged in election campaign or partisan political activities prior to the start
of the campaign period on 24 March 2004?
Section 11 of RA 8436 provides:
SECTION 11. Official Ballot. – The Commission shall prescribe the size and
form of the official ballot which shall contain the titles of the positions to be
filled and/or the propositions to be voted upon in an initiative, referendum or
plebiscite. Under each position, the names of candidates shall be arranged
alphabetically by surname and uniformly printed using the same type size. A
fixed space where the chairman of the Board of Election Inspectors shall affix
his/her signature to authenticate the official ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of candidacy/petition
for registration/ manifestation to participate in the election shall not be later
than one hundred twenty (120) days before the elections: Provided, That, any
elective official, whether national or local, running for any office other than the
one which he/she is holding in a permanent capacity, except for president
and vice-president, shall be deemed resigned only upon the start of the
campaign period corresponding to the position for which he/she is running:
Provided, further, That, unlawful acts or omissions applicable to a candidate
shall take effect upon the start of the aforesaid campaign period: Provided,
finally, That, for purposes of the May 11, 1998 elections, the deadline for
filing of the certificate of candidacy for the positions of President, Vice-
President, Senators and candidates under the party-list system as well as
petitions for registration and/or manifestation to participate in the party-list
system shall be on February 9, 1998 while the deadline for the filing of
certificate of candidacy for other positions shall be on March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or the
Bangko Sentral ng Pilipinas at the price comparable with that of private
printers under proper security measures which the Commission shall adopt.
The Commission may contract the services of private printers upon
certification by the National Printing Office/Bangko Sentral ng Pilipinas that it
cannot meet the printing requirements. Accredited political parties and
deputized citizens’ arms of the Commission may assign watchers in the
printing, storage and distribution of official ballots.
To prevent the use of fake ballots, the Commission through the Committee
shall ensure that the serial number on the ballot stub shall be printed in
magnetic ink that shall be easily detectable by inexpensive hardware and
shall be impossible to reproduce on a photocopying machine, and that
identification marks, magnetic strips, bar codes and other technical and
security markings, are provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at
the rate of one (1) ballot for every registered voter with a provision of
additional four (4) ballots per precinct.
Under Section 11 of RA 8436, the only purpose for the early filing of
certificates of candidacy is to give ample time for the printing of official
ballots. This is clear from the following deliberations of the Bicameral
Conference Committee:
SENATOR GONZALES. Okay. Then, how about the campaign period, would
it be the same[,] uniform for local and national officials?
THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining
it at the present periods.
SENATOR GONZALES. But the moment one files a certificate of candidacy,
he’s already a candidate, and there are many prohibited acts on the part of
candidate.
THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .
SENATOR GONZALES. And you cannot say that the campaign period has
not yet began (sic).
THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that the filing of
the certificate will not bring about one’s being a candidate.
SENATOR GONZALES. If that’s a fact, the law cannot change a fact.
THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the
filing of the certificate of candidacy will not result in that official vacating his
position, we can also provide that insofar he is concerned, election period or
his being a candidate will not yet commence. Because here, the reason why
we are doing an early filing is to afford enough time to prepare this machine
readable ballots.
So, with the manifestations from the Commission on Elections, Mr.
Chairman, the House Panel will withdraw its proposal and will agree to the
120-day period provided in the Senate version.
THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.
xxxx
SENATOR GONZALES. How about prohibition against campaigning or doing
partisan acts which apply immediately upon being a candidate?
THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this
provision is just to afford the Comelec enough time to print the ballots, this
provision does not intend to change the campaign periods as presently, or
rather election periods as presently fixed by existing law.
THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the
other prohibition.
THE CHAIRMAN (REP. TANJUATCO). That’s right.
THE ACTING CHAIRMAN (SEN. FERNAN). Okay.
THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would
be no conflict anymore because we are talking about the 120-day period
before election as the last day of filing a certificate of candidacy, election
period starts 120 days also. So that is election period already. But he will still
not be considered as a candidate.
Thus, because of the early deadline of 2 January 2004 for purposes of
printing of official ballots, Eusebio filed his certificate of candidacy on 29
December 2003. Congress, however, never intended the filing of a certificate
of candidacy before 2 January 2004 to make the person filing to become
immediately a "candidate" for purposes other than the printing of ballots. This
legislative intent prevents the immediate application of Section 80 of the
Omnibus Election Code to those filing to meet the early deadline. The clear
intention of Congress was to preserve the "election periods as x x x fixed by
existing law" prior to RA 8436 and that one who files to meet the early
deadline "will still not be considered as a candidate."3 (Emphasis in the
original)
Lanot was decided on the ground that one who files a certificate of candidacy
is not a candidate until the start of the campaign period. This ground was
based on the deliberations of the legislators who explained the intent of the
provisions of RA 8436, which laid the legal framework for an automated
election system. There was no express provision in the original RA 8436
stating that one who files a certificate of candidacy is not a candidate until the
start of the campaign period.
When Congress amended RA 8436, Congress decided to expressly
incorporate the Lanot doctrine into law, realizing that Lanot merely relied on
the deliberations of Congress in holding that —
The clear intention of Congress was to preserve the "election periods as x x x
fixed by existing law" prior to RA 8436 and that one who files to meet the
early deadline "will still not be considered as a candidate."4 (Emphasis
supplied)
Congress wanted to insure that no person filing a certificate of candidacy
under the early deadline required by the automated election system would be
disqualified or penalized for any partisan political act done before the start of
the campaign period. Thus, in enacting RA 9369, Congress expressly wrote
the Lanot doctrine into the second sentence, third paragraph of the amended
Section 15 of RA 8436, thus:
xxx
For this purpose, the Commission shall set the deadline for the filing of
certificate of candidacy/petition for registration/manifestation to participate in
the election. Any person who files his certificate of candidacy within this
period shall only be considered as a candidate at the start of the campaign
period for which he filed his certificate of candidacy: Provided, That, unlawful
acts or omissions applicable to a candidate shall take effect only upon the
start of the aforesaid campaign period: Provided, finally, That any person
holding a public appointive office or position, including active members of the
armed forces, and officers and employees in government-owned or
-controlled corporations, shall be considered ipso facto resigned from his/her
office and must vacate the same at the start of the day of the filing of his/her
certificate of candidacy. (Boldfacing and underlining supplied)
Congress elevated the Lanot doctrine into a statute by specifically inserting it
as the second sentence of the third paragraph of the amended Section 15 of
RA 8436, which cannot be annulled by this Court except on the sole ground
of its unconstitutionality. The Decision cannot reverse Lanot without repealing
this second sentence, because to reverse Lanot would mean repealing this
second sentence.
The assailed Decision, however, in reversing Lanot does not claim that this
second sentence or any portion of Section 15 of RA 8436, as amended by
RA 9369, is unconstitutional. In fact, the Decision considers the entire
Section 15 good law. Thus, the Decision is self-contradictory — reversing
Lanot but maintaining the constitutionality of the second sentence, which
embodies the Lanot doctrine. In so doing, the Decision is irreconcilably in
conflict with the clear intent and letter of the second sentence, third
paragraph, Section 15 of RA 8436, as amended by RA 9369.
In enacting RA 9369, Congress even further clarified the first proviso in the
third paragraph of Section 15 of RA 8436. The original provision in RA 8436
states —
x x x Provided, further, That, unlawful acts or omissions applicable to a
candidate shall take effect upon the start of the aforesaid campaign period, x
x x.
In RA 9369, Congress inserted the word "only" so that the first proviso now
reads —
x x x Provided, That, unlawful acts or omissions applicable to a candidate
shall take effect only upon the start of the aforesaid campaign period x x x.
(Emphasis supplied)
Thus, Congress not only reiterated but also strengthened its mandatory
directive that election offenses can be committed by a candidate "only" upon
the start of the campaign period. This clearly means that before the start of
the campaign period, such election offenses cannot be so committed.
When the applicable provisions of RA 8436, as amended by RA 9369, are
read together, these provisions of law do not consider Penera a candidate for
purposes other than the printing of ballots, until the start of the campaign
period. There is absolutely no room for any other interpretation.
We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio:
x x x The definition of a "candidate" in Section 79(a) of the Omnibus Election
Code should be read together with the amended Section 15 of RA 8436. A
"‘candidate’ refers to any person aspiring for or seeking an elective public
office, who has filed a certificate of candidacy by himself or through an
accredited political party, aggroupment or coalition of parties." However, it is
no longer enough to merely file a certificate of candidacy for a person to be
considered a candidate because "any person who files his certificate of
candidacy within [the filing] period shall only be considered a candidate at the
start of the campaign period for which he filed his certificate of candidacy."
Any person may thus file a certificate of candidacy on any day within the
prescribed period for filing a certificate of candidacy yet that person shall be
considered a candidate, for purposes of determining one’s possible violations
of election laws, only during the campaign period. Indeed, there is no
"election campaign" or "partisan political activity" designed to promote the
election or defeat of a particular candidate or candidates to public office
simply because there is no "candidate" to speak of prior to the start of the
campaign period. Therefore, despite the filing of her certificate of candidacy,
the law does not consider Penera a candidate at the time of the questioned
motorcade which was conducted a day before the start of the campaign
period. x x x
The campaign period for local officials began on 30 March 2007 and ended
on 12 May 2007. Penera filed her certificate of candidacy on 29 March 2007.
Penera was thus a candidate on 29 March 2009 only for purposes of printing
the ballots. On 29 March 2007, the law still did not consider Penera a
candidate for purposes other than the printing of ballots. Acts committed by
Penera prior to 30 March 2007, the date when she became a "candidate,"
even if constituting election campaigning or partisan political activities, are
not punishable under Section 80 of the Omnibus Election Code. Such acts
are within the realm of a citizen’s protected freedom of expression. Acts
committed by Penera within the campaign period are not covered by Section
80 as Section 80 punishes only acts outside the campaign period.5
The assailed Decision gives a specious reason in explaining away the first
proviso in the third paragraph, the amended Section 15 of RA 8436 that
election offenses applicable to candidates take effect only upon the start of
the campaign period. The Decision states that:
x x x [T]he line in Section 15 of Republic Act No. 8436, as amended, which
provides that "any unlawful act or omission applicable to a candidate shall
take effect only upon the start of the campaign period," does not mean that
the acts constituting premature campaigning can only be committed, for
which the offender may be disqualified, during the campaign period. Contrary
to the pronouncement in the dissent, nowhere in said proviso was it stated
that campaigning before the start of the campaign period is lawful, such that
the offender may freely carry out the same with impunity.
As previously established, a person, after filing his/her COC but prior to
his/her becoming a candidate (thus, prior to the start of the campaign period),
can already commit the acts described under Section 79(b) of the Omnibus
Election Code as election campaign or partisan political activity, However,
only after said person officially becomes a candidate, at the beginning of the
campaign period, can said acts be given effect as premature campaigning
under Section 80 of the Omnibus Election Code. Only after said person
officially becomes a candidate, at the start of the campaign period, can
his/her disqualification be sought for acts constituting premature
campaigning. Obviously, it is only at the start of the campaign period, when
the person officially becomes a candidate, that the undue and iniquitous
advantages of his/her prior acts, constituting premature campaigning, shall
accrue to his/her benefit. Compared to the other candidates who are only
about to begin their election campaign, a candidate who had previously
engaged in premature campaigning already enjoys an unfair headstart in
promoting his/her candidacy.6(Emphasis supplied)
It is a basic principle of law that any act is lawful unless expressly declared
unlawful by law. This is specially true to expression or speech, which
Congress cannot outlaw except on very narrow grounds involving clear,
present and imminent danger to the State. The mere fact that the law does
not declare an act unlawful ipso facto means that the act is lawful. Thus,
there is no need for Congress to declare in Section 15 of RA 8436, as
amended by RA 9369, that political partisan activities before the start of the
campaign period are lawful. It is sufficient for Congress to state that "any
unlawful act or omission applicable to a candidate shall take effect only upon
the start of the campaign period." The only inescapable and logical result is
that the same acts, if done before the start of the campaign period, are
lawful.
In layman’s language, this means that a candidate is liable for an election
offense only for acts done during the campaign period, not before. The law is
clear as daylight — any election offense that may be committed by a
candidate under any election law cannot be committed before the start of the
campaign period. In ruling that Penera is liable for premature campaigning for
partisan political acts before the start of the campaigning, the assailed
Decision ignores the clear and express provision of the law.
The Decision rationalizes that a candidate who commits premature
campaigning can be disqualified or prosecuted only after the start of the
campaign period. This is not what the law says. What the law says is "any
unlawful act or omission applicable to a candidate shall take effect only upon
the start of the campaign period." The plain meaning of this provision is that
the effective date when partisan political acts become unlawful as to a
candidate is when the campaign period starts. Before the start of the
campaign period, the same partisan political acts are lawful.
The law does not state, as the assailed Decision asserts, that partisan
political acts done by a candidate before the campaign period are unlawful,
but may be prosecuted only upon the start of the campaign period. Neither
does the law state that partisan political acts done by a candidate before the
campaign period are temporarily lawful, but becomes unlawful upon the start
of the campaign period. This is clearly not the language of the law. Besides,
such a law as envisioned in the Decision, which defines a criminal act and
curtails freedom of expression and speech, would be void for vagueness.
Congress has laid down the law — a candidate is liable for election offenses
only upon the start of the campaign period. This Court has no power to
ignore the clear and express mandate of the law that "any person who files
his certificate of candidacy within [the filing] period shall only be considered a
candidate at the start of the campaign period for which he filed his certificate
of candidacy." Neither can this Court turn a blind eye to the express and
clear language of the law that "any unlawful act or omission applicable to a
candidate shall take effect only upon the start of the campaign period."
The forum for examining the wisdom of the law, and enacting remedial
measures, is not this Court but the Legislature. This Court has no recourse
but to apply a law that is as clear, concise and express as the second
sentence, and its immediately succeeding proviso, as written in the third
paragraph of Section 15 of RA 8436, as amended by RA 9369.
WHEREFORE, we GRANT petitioner Rosalinda A. Penera’s Motion for
Reconsideration. We SET ASIDE the Decision of this Court in G.R. No.
181613 promulgated on 11 September 2009, as well as the Resolutions
dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division
and the COMELEC En Banc, respectively, in SPA No. 07-224. Rosalinda A.
Penera shall continue as Mayor of Sta. Monica, Surigao del Norte.
SO ORDERED.
ANTONIO T. CARPIO
G.R. No. 164858             November 16, 2006
HENRY P. LANOT, substituted by MARIO S. RAYMUNDO, Petitioner,  ("Yamat"), and Ram Alan Cruz ("Cruz") (collectively, "petitioners"), filed a
CHARMIE Q. BENAVIDES, Petitioner-Intervenor,  petition for disqualification8 under Sections 68 and 80 of the Omnibus
vs.
COMMISSION ON ELECTIONS and VICENTE P. EUSEBIO, Respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for certiorari1 assailing the Resolution dated 20 August
2004,2 the Resolution dated 21 May 20043of the Commission on Elections
(COMELEC) En Banc, and the Advisory dated 10 May 20044 of COMELEC
Chairman Benjamin S. Abalos ("Chairman Abalos") in SPA No. 04-288.
The 10 May 2004 Advisory of Chairman Abalos enjoined Acting National
Capital Region (NCR) Regional Director Esmeralda Amora-Ladra ("Director
Ladra") from implementing the COMELEC First Division’s 5 May 2004
Resolution.5 The 5 May 2004 Resolution ordered (1) the disqualification of
respondent Vicente P. Eusebio ("Eusebio") as a candidate for Pasig City
Mayor in the 10 May 2004 elections, (2) the deletion of Eusebio’s name from
the certified list of candidates for Pasig City Mayor, (3) the consideration of
votes for Eusebio as stray, (4) the non-inclusion of votes for Eusebio in the
canvass, and (5) the filing of the necessary information against Eusebio by
the COMELEC Law Department.
The 21 May 2004 Order of the COMELEC En Banc set aside the 11 May
2004 Order of the COMELEC En Banc6and directed the Pasig City Board of
Canvassers to proclaim the winning candidate for Pasig City Mayor without
prejudice to the final outcome of Eusebio’s disqualification case. The 11 May
2004 Order suspended the proclamation of Eusebio in the event that he
would receive the winning number of votes.
Finally, the 20 August 2004 COMELEC En Banc resolution set aside the 5
May 2004 Resolution of the COMELEC First Division 7 and nullified the
corresponding order. The COMELEC En Banc referred the case to the
COMELEC Law Department to determine whether Eusebio actually
committed the acts subject of the petition for disqualification.
The Facts
On 19 March 2004, Henry P. Lanot ("Lanot"), Vener Obispo ("Obispo"),
Roberto Peralta ("Peralta"), Reynaldo dela Paz ("dela Paz"), Edilberto Yamat
Election Code against Eusebio before the COMELEC. Lanot, Obispo, and
Eusebio were candidates for Pasig City Mayor, while Peralta, dela Paz,
Yamat, and Cruz were candidates for Pasig City Councilor in the 10 May
2004 elections. The case was docketed as SPA (NCR-RED) No. C04-008.
Petitioners alleged that Eusebio engaged in an election campaign in various
forms on various occasions outside of the designated campaign period, such
as (1) addressing a large group of people during a medical mission
sponsored by the Pasig City government; (2) uttering defamatory statements
against Lanot; (3) causing the publication of a press release predicting his
victory; (4) installing billboards, streamers, posters, and stickers printed with
his surname across Pasig City; and (5) distributing shoes to schoolchildren in
Pasig public schools to induce their parents to vote for him.
In his Answer filed on 29 March 2004, 9 Eusebio denied petitioners’
allegations and branded the petition as a harassment case. Eusebio further
stated that petitioners’ evidence are merely fabricated.
Director Ladra conducted hearings on 2, 5 and 7 April 2004 where she
received the parties’ documentary and testimonial evidence. Petitioners
submitted their memorandum10 on 15 April 2004, while Eusebio submitted his
memorandum11 on 16 April 2004.
The Ruling of the Regional Director
On 4 May 2004, Director Ladra submitted her findings and recommendations
to the COMELEC. Director Ladra recommended that:
WHEREFORE, in view of the foregoing, undersigned respectfully
recommends that the instant petition be GRANTED. Consequently, pursuant
to Section 68 (a) and (e) of the Omnibus Election Code,
respondent VICENTE P. EUSEBIO shall be DISQUALIFIED to run for the
position of Mayor, Pasig City for violation of Section 80 of the Omnibus
Election Code.
Further, undersigned respectfully recommends that the instant case be
referred to the Law Department for it to conduct a preliminary investigation on
the possible violation by the respondent of Sec. 261 (a) of the Omnibus
Election Code.12
The Ruling of the COMELEC
In a resolution dated 5 May 2004, or five days before the elections, the
COMELEC First Division adopted the findings and recommendation of
Director Ladra. The dispositive portion of the resolution read:
WHEREFORE, in view of the foregoing, the Commission (FIRST
DIVISION) RESOLVED as it hereby RESOLVESto ORDER:
1. the disqualification of respondent VICENTE P. EUSEBIO from
being a candidate for mayor of Pasig City in the May 10, 2004
elections;
2. the Election Officers of District I and District II of Pasig City
to DELETE and CANCEL the name of respondent VICENTE P.
EUSEBIO from the certified list of candidates for the City Offices of
Pasig City for the May 10, 2004 elections;
3. the Board of Election Inspectors of all the precincts comprising the
City of Pasig not to count the votes cast for respondent VICENTE
EUSEBIO, the same being cast for a disqualified candidate and
therefore must be considered stray;
4. the City Board of Canvassers of Pasig City not to canvass the
votes erroneously cast for the disqualified candidate respondent
VICENTE P. EUSEBIO, in the event that such votes were recorded
in the election returns[;]
5. the Regional Director of NCR, and the Election Officers of Pasig
City to immediately implement the foregoing directives[;]
6. the Law Department through its Director IV, Atty. ALIODEN
DALAIG to file the necessary information against Vicente P. Eusebio
before the appropriate court.
This Resolution is immediately executory unless restrained by the
Commission En Banc.13 (Emphasis in the original)
In a Very Urgent Advisory14 dated 8 May 2004, or two days before the
elections, Chairman Abalos informed the following election officers of the
resolution of the COMELEC First Division: Director Ladra; Atty. Romeo
Alcazar, Acting Election Officer of the First District of Pasig City; Ms. Marina
Gerona, Acting Election Officer of the Second District of Pasig City; and all
Chairmen and Members of the Board of Election Inspectors and City Board
of Canvassers of Pasig City (collectively, "pertinent election officers").
Director Ladra repeated the dispositive portion of the 5 May 2004 resolution
in a Memorandum15 which she issued the next day. On 9 May 2004, Eusebio
filed a motion for reconsideration16 of the resolution of the COMELEC First
Division.
On election day itself, Chairman Abalos issued the first of the three
questioned COMELEC issuances. In a memorandum, Chairman Abalos
enjoined Director Ladra from implementing the COMELEC First Division’s 5
May 2004 resolution due to Eusebio’s motion for reconsideration. The 10
May 2004 memorandum stated:
Considering the pendency of a Motion for Reconsideration timely filed by
Respondent, Vicente P. Eusebio[,] with the Commission En Banc, you are
hereby ENJOINED from implementing the Resolution promulgated on May 5,
2004, in the x x x case until further orders from the Commission En
Banc.17 (Emphasis in the original)
On 11 May 2004, the day after the elections, petitioners Lanot, Peralta, dela
Paz, Yamat, and Cruz filed before the COMELEC En Banc a motion to
suspend the counting and canvassing of votes and the proclamation of the
winning mayoral candidate for Pasig City.18 Without waiting for Eusebio’s
opposition, the COMELEC En Banc partially denied the motion on the same
day. The dispositive portion of the Order declared:
WHEREFORE, in view of the foregoing, the Commission En Banc DENIES
the motion for suspension of the counting of votes and the canvassing of
votes. However, in order not to render moot and academic the issues for final
disposition by the En Banc and considering that on the basis of the
Resolution of the FIRST DIVISION, the evidence of respondent’s guilt is
strong, the Commission En Banc hereby ORDERS to SUSPEND, UNTIL
FURTHER ORDERS OF THE COMMISSION, the proclamation of
respondent in the event he receives the winning number of
votes.19 (Emphasis in the original)
On 12 May 2004, Eusebio filed his opposition to petitioners’ motion.
On 21 May 2004, the COMELEC En Banc issued the second questioned
issuance. The order quoted from the motion for advisory opinion of the Pasig
City Board of Canvassers which reported that 98% of the total returns of
Pasig City had been canvassed and that there were only 32 uncanvassed
returns involving 6,225 registered voters. Eusebio had 119,693 votes while
Lanot had 108,941 votes. Thus, the remaining returns would not affect
Eusebio’s lead over Lanot. The COMELEC En Banc stated its "established
policy" to "expedite the canvass of votes and proclamation of winning
candidates to ease the post election tension and without prejudice to [its]
action in [the] x x x case"20 and resolved to declare Eusebio as Pasig City
Mayor. The dispositive portion of the 21 May 2004 Order read:
WHEREFORE, this Commission RESOLVED, as it hereby RESOLVES,
to LIFT AND SET ASIDE the order suspending the proclamation of the
respondent.
FURTHER, the City Board of Canvassers is DIRECTED to complete [the]
canvass and immediately proceed with the proclamation of the winning
candidate for Mayor of Pasig City without prejudice to the final outcome
of the case entitled, "Henry P. Lanot, et al., vs. Vicente Eusebio[,
"] docketed as SPA No. 04-288.21 (Emphasis in the original)
Eusebio was proclaimed as Pasig City Mayor on 23 May 2004 based on the
21 May 2004 Order.1âwphi1 On 25 June and 6 July 2004, the COMELEC En
Banc conducted hearings on Eusebio’s motion for reconsideration of the 5
May 2004 COMELEC First Division resolution. On 6 August 2004, Lanot filed
a motion to annul Eusebio’s proclamation and to order his proclamation
instead.22
On 20 August 2004, the COMELEC En Banc promulgated the third
questioned issuance. The COMELEC En Banc invoked Section 1 of
COMELEC Resolution No. 2050 ("Resolution 2050") and this Court’s rulings
in Albaña v. COMELEC,23 Lonzanida v. COMELEC,24 and Sunga v.
COMELEC25 in justifying the annulment of the order to disqualify Eusebio and
the referral of the case to the Law Department for preliminary investigation.
The dispositive portion stated:
WHEREFORE, PREMISES CONSIDERED, the resolution promulgated by
the First Division dated 8 May 2004 on the above-captioned case, affirming
the recommendation of the Regional Director (NCR) to disqualify herein
respondent, is hereby SET ASIDE, and the corresponding ORDER issued
thereunder, ANNULLED. Accordingly, this case is referred to the Law
Department for investigation to finally determine [whether] the acts
complained of were in fact committed by respondent Eusebio.26 (Emphasis in
the original)
Hence, this petition.
The Issues
Lanot alleged that as the COMELEC’s issuances are not supported by
substantial evidence and are contrary to law and settled jurisprudence, the
COMELEC committed grave abuse of discretion amounting to lack of or
excess of jurisdiction. Lanot raised the following issues before this Court:
A. WHETHER PUBLIC RESPONDENT COMELEC, IN ISSUING [ITS]
RESOLUTION DATED AUGUST 20, 2004, ACTED WITH GRAVE ABUSE
OF DISCRETION OR LACK OR IN EXCESS OF JURISDICTION
1. by setting aside the Resolution of Disqualification promulgated by
its First Division on May 5, 2004 affirming the recommendation of the
Regional Election Director (NCR) to disqualify Respondent, and by
annulling the order issued thereunder,
a) erroneously, whimsically and maliciously ADOPTED and
APPLIED Sections 1 and 2 of Rule 2050 to this case,
b) capriciously VIOLATED COMELEC Resolution 6452 and
Sec. 6, R.A. 6646,
c) erroneously, whimsically and capriciously ARROGATED
unto themselves a quasi-judicial legislation, and
d) erroneously and maliciously MISAPPLIED the Albaña and
Sunga cases to the case at bar;
2. by referring the case to the Law Department for investigation, it
illegally, erroneously and maliciously DISMISSED the electoral
aspect of the case and whimsically VIOLATED Resolution 6452 and
Section 6 of RA 6646;
3. by disregarding the Order of disqualification, it erroneously and
whimsically IGNORED and DISREGARDED the inchoate right of
petitioner as the winning party.
B. WHETHER PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF
DISCRETION OR IN EXCESS OR LACK OF JURISDICTION IN ISSUING
ITS RESOLUTION DATED MAY 21, 2004
 1. by lifting and setting aside the Order of suspension of
proclamation by winning candidate issued on May 11, 2004, it
erroneously and intentionally and whimsically DISREGARDED the
strong evidence of guilt of Respondent to warrant the suspension of
his proclamation and erroneously and capriciously VIOLATED
Resolution of May 11, 2004.
C. WHETHER CHAIRMAN BENJAMIN ABALOS OF THE COMELEC
ACTED WITH GRAVE ABUSE OF POWER, AUTHORITY OR DISCRETION
OR LACK OR IN EXCESS OF JURISDICTION
1. by unilaterally enjoining the implementation of the Order of
Respondent’s disqualification despite the condition therein that it
could only be restrained by the Commission En Banc, and whether
or not he illegally, erroneously and blatantly whimsically grabbed the
exclusive adjudicatory power of the Commission En Banc.
D. WHETHER RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
CAPRICIOUSLY DISREGARDING THE RESOLUTION OF MAY 5, 2004 AS
ALREADY FINAL AND EXECUTED AND IN FAILING TO ORDER THE
PROCLAMATION OF PETITIONER.
E. a) WHETHER THERE ARE PREPONDERANT EVIDENCE TO
WARRANT RESPONDENT EUSEBIO’S DISQUALIFICATION.
b) WHETHER RESPONDENT EUSEBIO SHOULD BE DEEMED
DISQUALIFIED WITH FOUR (4) AFFIRMATIVE VOTES OF
COMMISSIONERS, TWO (2) VOTES FROM COMMISSIONERS
BORRA AND GARCILLANO WHO VOTED FOR THE
DISQUALIFICATION IN THE MAY 5, 2004
RESOLUTION (ANNEX "B") AND TWO (2) VOTES FROM
COMMISSIONERS TUAZON, JR. AND SADAIN WHO VOTED TO
DISQUALIFY HIM IN THEIR DISSENTING OPINION (ANNEX "A-1")
SHOULD REFERRAL OF THE CASE TO THE LAW DEPARTMENT
BY RESPONDENT COMELEC BE DECLARED A PATENT
NULLITY.
F. IN CASE OF DISQUALIFICATION OF RESPONDENT EUSEBIO,
WHETHER PETITIONER LANOT CAN BE PROCLAIMED AND ALLOWED
TO SIT AS MAYOR-ELECT, AND WHETHER THE DOCTRINES IN
TOPACIO, CODILLA, JR., LABO AND OTHERS APPLY IN THIS CASE.27
The Ruling of the Court
The petition has no merit.
Parties to the Present Petition
On 13 April 2005, during the pendency of this case, an unidentified person
shot and killed Lanot in Pasig City. It seemed that, like an endangered
specie, the disqualification case would be extinguished by Lanot’s death.
However, on 27 April 2005, Lanot’s counsel manifested, over Eusebio’s
objections, that Mario S. Raymundo ("Raymundo"), a registered voter and
former Mayor of Pasig City, is Lanot’s substitute in this case. Also, on 25
August 2005, Charmie Q. Benavides ("Benavides"), a Pasig City mayoral
candidate and the third placer in the 10 May 2004 elections, filed a petition-
in-intervention. Benavides asked whether she could be proclaimed Pasig City
Mayor because she is the surviving qualified candidate with the highest
number of votes among the remaining candidates.
The law and the COMELEC rules have clear pronouncements that the
electoral aspect of a disqualification case is not rendered inutile by the death
of petitioner, provided that there is a proper substitution or intervention of
parties while there is a pending case. On Raymundo’s substitution, any
citizen of voting age is competent to continue the action in Lanot’s
stead.28 On Benavides’ intervention, Section 6 of Republic Act No. 6646, or
the Electoral Reforms Law of 1987 ("Electoral Reforms Law of 1987"), allows
intervention in proceedings for disqualification even after elections if no final
judgment has been rendered. Although Eusebio was already proclaimed as
Pasig City Mayor, Benavides could still intervene, as there was still no final
judgment in the proceedings for disqualification.29
The case for disqualification exists, and survives, the election and
proclamation of the winning candidate because an outright dismissal will
unduly reward the challenged candidate and may even encourage him to
employ delaying tactics to impede the resolution of the disqualification case
until after he has been proclaimed.30 The exception to the rule of retention of
jurisdiction after proclamation applies when the challenged candidate
becomes a member of the House of Representatives or of the Senate, where
the appropriate electoral tribunal would have jurisdiction. There is no law or
jurisprudence which says that intervention or substitution may only be done
prior to the proclamation of the winning candidate. A substitution is not barred
by prescription because the action was filed on time by the person who died
and who is being substituted. The same rationale applies to a petition-in-
intervention.
COMELEC’s Grave Abuse of Discretion
Propriety of Including Eusebio’s Name in the Pasig City Mayoral Candidates
and of the Counting of Votes and Canvassing of Election Returns
In its 5 May 2004 resolution, the COMELEC First Division ordered the
pertinent election officials to delete and cancel Eusebio’s name from the
certified list of Pasig City mayoral candidates, not to count votes cast in
Eusebio’s favor, and not to include votes cast in Eusebio’s favor in the
canvass of election returns. Eusebio filed a motion for reconsideration of the
resolution on 9 May 2004. Hence, COMELEC Chairman Abalos issued a
memorandum on 10 May 2004 which enjoined the pertinent election officials
from implementing the 5 May 2004 resolution. In a Resolution dated 11 May
2004, the COMELEC En Banc subsequently ratified and adopted Chairman
Abalos’ 10 May 2004 memorandum when it denied Lanot’s motion to
suspend the counting of votes and canvassing of election returns.
Lanot claims that Chairman Abalos whimsically grabbed the adjudicatory
power of the COMELEC En Banc when he issued the 10 May 2004
memorandum. Lanot asserts that the last sentence in the dispositive portion
of the COMELEC First Division’s 5 May 2004 Resolution, "[t]his Resolution is
immediately executory unless restrained by the Commission En Banc,"
should have prevented Chairman Abalos from acting on his own.
Lanot’s claim has no basis, especially in light of the 11 May 2004 Resolution
of the COMELEC En Banc. The COMELEC En Banc’s explanation is apt:
Suspension of these proceedings is tantamount to an implementation of the
Resolution of the FIRST DIVISION which had not yet become final and
executory by reason of the timely filing of a Motion for Reconsideration
thereof. A disposition that has not yet attained finality cannot be implemented
even through indirect means.31
Moreover, Chairman Abalos’ 10 May 2004 memorandum is merely an
advisory required by the circumstances at the time. Eusebio filed a motion for
reconsideration on 9 May 2004, and there was not enough time to resolve
the motion for reconsideration before the elections. Therefore, Eusebio was
not yet disqualified by final judgment at the time of the elections. Section 6 of
the Electoral Reforms Law of 1987 provides that "[a] candidate who has been
declared by final judgment to be disqualified shall not be voted for, and
the votes cast for him shall not be counted." Under Section 13 of the
COMELEC Rules of Procedure, a decision or resolution of a Division in a
special action becomes final and executory after the lapse of fifteen days
following its promulgation while a decision or resolution of the COMELEC En
Banc becomes final and executory after five days from its promulgation
unless restrained by this Court.
Propriety of the Lifting of the Suspension of Eusebio’s Proclamation
In the same 11 May 2004 Resolution, the COMELEC En Banc ordered the
suspension of Eusebio’s proclamation in the event he would receive the
winning number of votes. Ten days later, the COMELEC En Banc set aside
the 11 May 2004 order and directed the Pasig City Board of Canvassers to
proclaim Eusebio as the winning candidate for Pasig City Mayor. The
COMELEC relied on Resolutions 7128 and 712932 to justify the counting of
Eusebio’s votes and quoted from the Resolutions as follows:
Resolution No. 7128 -
xxxx
NOW THEREFORE, the Commission RESOLVED, as it hereby RESOLVES,
to adopt certain policies and to direct all Board of Canvassers, as follows:
1. to speed up its canvass and proclamation of all winning candidates except
under the following circumstances:
a. issuance of an order or resolution suspending the proclamation;
b. valid appeal[s] from the rulings of the board in cases where appeal
is allowed and the subject appeal will affect the results of the
elections;
x x x x.
Resolution No. 7129
xxxx
NOW THEREFORE, the Commission on Elections, by virtue of the powers
vested in it by the Constitution, the Omnibus Election Code and other
elections laws, has RESOLVED, as it hereby RESOLVES, to refrain from
granting motions and petitions seeking to postpone proclamations by the
Board of Canvassers and other pleadings with similar purpose unless they
are grounded on compelling reasons, supported by convincing evidence
and/or violative of the canvassing procedure outlined in Resolution No. 6669.
We agree with Eusebio that the COMELEC En Banc did not commit grave
abuse of discretion in issuing its 21 May 2004 order. The COMELEC has the
discretion to suspend the proclamation of the winning candidate during the
pendency of a disqualification case when evidence of his guilt is
strong.33 However, an order suspending the proclamation of a winning
candidate against whom a disqualification case is filed is merely provisional
in nature and can be lifted when warranted by the evidence.34
Propriety of the Dismissal of the
Disqualification Case and of the
Referral to the COMELEC
Law Department
Lanot filed the petition for disqualification on 19 March 2004, a little less than
two months before the 10 May 2004 elections. Director Ladra conducted
hearings on the petition for disqualification on 2, 5 and 7 April 2004. Director
Ladra submitted her findings and recommendations to the COMELEC on 4
May 2004. The COMELEC First Division issued a resolution adopting
Director Ladra’s recommendations on 5 May 2004. Chairman Abalos
informed the pertinent election officers of the COMELEC First Division’s
resolution through an Advisory dated 8 May 2004. Eusebio filed a Motion for
Reconsideration on 9 May 2004. Chairman Abalos issued a memorandum to
Director Ladra on election day, 10 May 2004, and enjoined her from
implementing the 5 May 2004 COMELEC First Division resolution. The
petition for disqualification was not yet finally resolved at the time of the
elections. Eusebio’s votes were counted and canvassed, after which Eusebio
was proclaimed as the winning candidate for Pasig City Mayor. On 20 August
2004, the COMELEC En Banc set aside the COMELEC First Division’s order
and referred the case to the COMELEC Law Department.
In its 20 August 2004 resolution, the COMELEC En Banc relied heavily on
the timing of the filing of the petition. The COMELEC En Banc invoked
Section 1 of Resolution No. 2050, which states:
1. Any complaint for the disqualification of a duly registered candidate based
upon any of the grounds specifically enumerated under Section 68 of the
Omnibus Election Code, filed directly with the Commission before an election
in which the respondent is a candidate, shall be inquired into by the
Commission for the purpose of determining whether the acts complained of
have in fact been committed. Where the inquiry by the Commission results in
a finding before election, that the respondent candidate did in fact commit the
acts complained, the Commission shall order the disqualification of the
respondent candidate from continuing as such candidate.
In case such complaint was not resolved before the election, the
Commission may motu proprio, or on motion of any of the parties, refer
the complaint to the Law Department of the Commission as the
instrument of the latter in the exercise of its exclusive power to conduct
a preliminary investigation of all cases involving criminal infractions of
the election laws. Such recourse may be availed of irrespective of
whether the respondent has been elected or has lost in the
election. (Emphasis added)
The COMELEC also quoted from Sunga v. COMELEC to justify its referral of
the disqualification case to its Law Department.
x x x We discern nothing in COMELEC Resolution No. 2050 declaring,
ordering or directing the dismissal of a disqualification case filed before the
election but which remained unresolved after the election. What the
Resolution mandates in such a case is for the Commission to refer the
complaint to its Law Department for investigation to determine whether the
acts complained of have in fact been committed by the candidate sought to
be disqualified. The findings of the Law Department then become the basis
for disqualifying the erring candidate. This is totally different from the other
two situations contemplated by Resolution No. 2050, i.e., a disqualification
case filed after the election but before the proclamation of winners and that
filed after the election and the proclamation of winners, wherein it was
specifically directed by the same Resolution to be dismissed as a
disqualification case.35
For his part, Eusebio asserts that the COMELEC has the prerogative to refer
the disqualification case to its Law Department. Thus, no grave abuse of
discretion can be imputed to the COMELEC. Moreover, the pendency of a
case before the Law Department for purposes of preliminary investigation
should be considered as continuation of the COMELEC’s deliberations.
However, contrary to the COMELEC En Banc’s reliance on Resolution No.
2050 in its 20 August 2004 resolution, the prevailing law on the matter is
Section 6 of the Electoral Reforms Law of 1987. Any rule or action by the
COMELEC should be in accordance with the prevailing law. Section 6 of the
Electoral Reforms Law of 1987 provides:
Section 6. Effect of Disqualification Case.  — Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he
is voted for and receives the winning number of votes in such election,
the Court or Commission shall continue with the trial and hearing of the
action, inquiry or protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is strong.
(Emphasis added)
Moreover, this Court’s ruling in Sunga was further explained in Bagatsing v.
COMELEC,36 thus:
The COMELEC in Sunga obviously misapplied Resolution No. 2050 in
dismissing the disqualification case therein simply because it remained
unresolved before the election and, in lieu thereof, referring it to its Law
Department for possible criminal prosecution of the respondent for violation
of the election laws. Notably, there is nothing in paragraph 1 of Resolution
No. 2050 which directs the dismissal of the disqualification case not resolved
before the election. It says the COMELEC "may motu prop[r]io or on motion
of any of the parties, refer the complaint to the Law Department of the
Commission as an instrument of the latter in the exercise of its exclusive
power to conduct a preliminary investigation of all cases involving criminal
infractions of the election laws." The referral to the Law Department is
discretionary on the part of the COMELEC and in no way may it be
interpreted that the COMELEC will dismiss the disqualification case or will no
longer continue with the hearing of the same. The reason for this is that a
disqualification case may have two (2) aspects, the administrative, which
requires only a preponderance of evidence to prove disqualification, and the
criminal, which necessitates proof beyond reasonable doubt to convict.
Where in the opinion of the COMELEC, the acts which are grounds for
disqualification also constitute a criminal offense or offenses, referral of the
case to the Law Department is proper.
xxxx
It bears stressing that the Court in Sunga recognized the difference between
a disqualification case filed before and after an election when, as earlier
mentioned, it stated that the referral of the complaint for disqualification
where the case is filed before election "is totally different from the other two
situations contemplated by Resolution No. 2050, i.e., a disqualification case
filed after the election but before the proclamation of winners and that filed
after the election and the proclamation of winners, wherein it was specifically
directed by the same Resolution to be dismissed as a disqualification case."
Indeed, the 20 August 2004 resolution of the COMELEC En Banc betrayed
its misunderstanding of the two aspects of a disqualification case. The
electoral aspect of a disqualification case determines whether the offender
should be disqualified from being a candidate or from holding office.
Proceedings are summary in character and require only clear preponderance
of evidence. An erring candidate may be disqualified even without prior
determination of probable cause in a preliminary investigation. The electoral
aspect may proceed independently of the criminal aspect, and vice-versa.
The criminal aspect of a disqualification case determines whether there is
probable cause to charge a candidate for an election offense. The prosecutor
is the COMELEC, through its Law Department, which determines whether
probable cause exists.37 If there is probable cause, the COMELEC, through
its Law Department, files the criminal information before the proper court.
Proceedings before the proper court demand a full-blown hearing and require
proof beyond reasonable doubt to convict.38 A criminal conviction shall result
in the disqualification of the offender, which may even include disqualification
from holding a future public office.39
The two aspects account for the variance of the rules on disposition and
resolution of disqualification cases filed before or after an election. When the
disqualification case is filed before the elections, the question of
disqualification is raised before the voting public. If the candidate is
disqualified after the election, those who voted for him assume the risk that
their votes may be declared stray or invalid. There is no such risk if the
petition is filed after the elections.40 The COMELEC En Banc erred when it
ignored the electoral aspect of the disqualification case by setting aside the
COMELEC First Division’s resolution and referring the entire case to the
COMELEC Law Department for the criminal aspect.
Moreover, the COMELEC En Banc’s act and Eusebio’s assertions lose sight
of the provisions of Resolution No. 6452 ("Resolution 6452"), "Rules
Delegating to COMELEC Field Officials the Hearing and Reception of
Evidence of Disqualification Cases Filed in Connection with the May 10, 2004
National and Local Elections; Motu ProprioActions and Disposition of
Disqualification Cases," promulgated on 10 December 2003. The pertinent
portions of Resolution 6452 provide:
Section 1. Delegation of reception of evidence. — The Commission hereby
designates its field officials who are members of the Philippine Bar to hear
and receive evidence in the following petitions:
xxx
c. Petition to disqualify a candidate pursuant to Sec. 68 of the
Omnibus Election Code and disqualify a candidate for lack of
qualifications or possessing same grounds for disqualification;
xxx
Sec. 2. Suspension of the Comelec Rules of Procedure. — In the interest of
justice and in order to attain speedy disposition of cases, the Comelec Rules
of Procedure or any portion thereof inconsistent herewith is hereby
suspended.
Sec. 3. Where to file petitions. — The petitions shall be filed with the
following offices of the Commission:
xxx
b. For x x x local positions including highly-urbanized cities, in the
National Capital Region, with the Regional Election Director of said
region;
xxx
PROVIDED, in cases of highly-urbanized cities the filing of petitions for
disqualification shall be with the Office of the Regional Election Directors. x x
x candidate, or if he has been elected, from holding the office.
xxxx
The Regional Election Directors concerned shall hear and receive evidence
strictly in accordance with the procedure and timeliness herein provided.
Sec. 5. Procedure in filing petitions. — For purposes of the preceding
section, the following procedure shall be observed:
xxxx
C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68 OF
THE OMNIBUS ELECTION CODE AND PETITION TO DISQUALIFY FOR
LACK OF QUALIFICATIONS OR POSSESSING SAME GROUNDS FOR
DISQUALIFICATION
1. The verified petition to disqualify a candidate pursuant to Sec. 68
of the Omnibus Election Code x x x may be filed any day after the
last day [of] filing of certificates of candidacy but not later than the
date of proclamation.
2. The petition to disqualify a candidate pursuant to Sec. 68 of the
Omnibus Election Code shall be filed in ten (10) legible copies with
the concerned office mentioned in Sec. 3 personally or through a
duly authorized representative by any citizen of voting age, or duly
registered political party, organization or coalition of political parties
against any candidate who, in an action or protest in which he is a
party, is declared by final decision of a competent court guilty of, or
found by the Commission of:
2.a having given money or other material consideration to
influence, induce or corrupt the voters or public officials
performing electoral functions; or
xxx
2.d having solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104 of the
Omnibus Elections Code; or
2.e having violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v and cc sub-paragraph 6 of the Omnibus
Election Code, shall be disqualified from continuing as a
xxxx
Indeed, what the COMELEC did in its 20 August 2004 resolution was
contrary to "the interest of justice and x x x speedy disposition of cases."
Resolution No. 2050 referring the electoral aspect to the Law Department is
procedurally inconsistent with Resolution 6452 delegating reception of
evidence of the electoral aspect to the Regional Election Director. The
investigation by the Law Department under Resolution No. 2050 produces
the same result as the investigation under Resolution 6452 by the Regional
Election Director. Commissioner Tuason’s dissent underscored the
inconsistency between the avowed purpose of Resolution 6452 and the
COMELEC En Banc’s 20 August 2004 resolution:
x x x [T]he preliminary investigation for purposes of finding sufficient ground
for [Eusebio’s] disqualification, has already been accomplished by the RED-
NCR prior to the election. There also appears no doubt in my mind, that such
recommendation of the investigating officer, RED-NCR, was substantive and
legally sound. The First Division agreed with the result of the
investigation/recommendation, with the facts of the case clearly distilled in
the assailed resolution. This, I likewise found to be in accord with our very
own rules and the jurisprudential doctrines aforestated. There could be no
rhyme and reason then to dismiss the electoral aspect of the case (i.e.,
disqualification) and refer the same to the Law Department for preliminary
investigation. As held in Sunga, clearly, the legislative intent is that the
COMELEC should continue the trial and hearing of the disqualification case
to its conclusion, i.e., until judgment is rendered thereon. The criminal aspect
of the case is an altogether different issue.
Sunga said the reason is obvious: A candidate guilty of election offenses
would be undeservedly rewarded, instead of punished, by the dismissal of
the disqualification case against him simply because the investigating body
was unable, for any reason caused upon it, to determine before the election if
the offenses were indeed committed by the candidate sought to be
disqualified. All that the erring aspirant would need to do is to employ
delaying tactics so that the disqualification case based on the commission of
election offenses would not be decided before the election. This scenario is
productive of more fraud which certainly is not the main intent and purpose of
the law.41
We agree with Lanot that the COMELEC committed grave abuse of
discretion when it ordered the dismissal of the disqualification case pending
preliminary investigation of the COMELEC Law Department. A review of the
COMELEC First Division’s 5 May 2004 resolution on Eusebio’s
disqualification is in order, in view of the grave abuse of discretion committed
by the COMELEC En Banc in its 20 August 2004 resolution.
Rightful Pasig City Mayor
Eusebio’s Questioned Acts
We quote the findings and recommendations of Director Ladra as adopted by
the COMELEC First Division:
The questioned acts of [Eusebio] are as follows:
1) The speech uttered on February 14, 2004 during the meeting
dubbed as "Lingap sa Barangay" in Barangay San Miguel, Pasig
City wherein [Eusebio] allegedly asked the people to vote for
him and solicited for their support x x x:
xxxx
2) Another speech given on March 17, 2004 in ROTC St.,
Rosario, Pasig City wherein [Eusebio] again allegedly uttered
defamatory statements against co-[candidate] Lanot and
campaigned for his (respondent’s) and his group’s candidacy.
xxxx
3) He caused to be published in leading newspapers about a
survey allegedly done by Survey Specialist, Inc. showing him to
be leading in the mayoralty race in Pasig City.
xxxx
4) He paid a political advertisement in the Philippine Free Press
in the amount of ₱193,660.00 as published in its issue dated
February 7, 2004.
xxxx
5) The display of billboards containing the words "Serbisyo
Eusebio" and "ST" which means "Serbisyong Totoo" before the
start of the campaign period.
xxxx
6) Posters showing the respondent and his running mate
Yoyong Martirez as well those showing the name "KA ENTENG
EUSEBIO" and "BOBBY EUSEBIO" in connection with the
dengue project were posted everywhere even before the start of
the campaign period.
xxxx
7) Streamers bearing the words "Pasig City is for PEACE" were
likewise displayed with the two letters "E" prominently written.
xxxx
8) Stickers of [Eusebio] were likewise pasted all over the city
before the start of the campaign period.
xxxx
9) [Eusebio] engaged in vote-buying by distributing shoes to the
students while telling the parents that by way of gratitude, they
should vote for him.
x x x x (Emphasis in the original)42
Eusebio argues that: (1) Lanot is in estoppel for participating in the
proceedings before the COMELEC Law Department; (2) Lanot abandoned
the present petition also because of his participation in the proceedings
before the COMELEC Law Department; and (3) Lanot is guilty of forum-
shopping. These arguments fail for lack of understanding of the two aspects
of disqualification cases. The proceedings before the COMELEC Law
Department concern the criminal aspect, while the proceedings before this
Court concern the electoral aspect, of disqualification cases. The
proceedings in one may proceed independently of the other.
Eusebio is correct when he asserts that this Court is not a trier of facts. What
he overlooks, however, is that this Court may review the factual findings of
the COMELEC when there is grave abuse of discretion and a showing of
arbitrariness in the COMELEC’s decision, order or resolution.43 We find that
the COMELEC committed grave abuse of discretion in issuing its 20 August
2004 resolution.
Our review of the factual findings of the COMELEC, as well as the law
applicable to this case, shows that there is no basis to disqualify Eusebio.
Director Ladra recommended the disqualification of Eusebio "for violation of
Section 80 of the Omnibus Election Code." The COMELEC First Division
approved Director Ladra’s recommendation and disqualified Eusebio.
Section 80 of the Omnibus Election Code provides:
SECTION 80. Election campaign or partisan political activity outside
campaign period. — It shall be unlawful for any person, whether or not a
voter or candidate, or for any party, or association of persons, to engage in
an election campaign or partisan political activity except during the campaign
period: Provided, That political parties may hold political conventions or
meetings to nominate their official candidates within thirty days before the
commencement of the campaign period and forty-five days for Presidential
and Vice-Presidential election. (Emphasis supplied)
What Section 80 of the Omnibus Election Code prohibits is "an election
campaign or partisan political activity" by a "candidate" "outside" of the
campaign period. Section 79 of the same Code defines "candidate," "election
campaign" and "partisan political activity" as follows:
SECTION 79. Definitions. — As used in this Code:
(a) The term "candidate" refers to any person aspiring for or seeking
an elective public office, who has filed a certificate of candidacy by
himself or through an accredited political party, aggroupment, or
coalition of parties;
(b) The term "election campaign" or "partisan political activity" refers
to an act designed to promote the election or defeat of a particular
candidate or candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees
or other groups of persons for the purpose of soliciting votes
and/or undertaking any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings,
rallies, parades, or other similar assemblies, for the purpose
of soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or
holding interviews for or against the election of any
candidate for public office;
(4) Publishing or distributing campaign literature or materials
designed to support or oppose the election of any candidate;
or
(5) Directly or indirectly soliciting votes, pledges or support
for or against a candidate.
The foregoing enumerated acts if performed for the purpose of enhancing the
chances of aspirants for 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.
Thus, the essential elements for violation of Section 80 of the Omnibus
Election Code are: (1) a person engages in an election campaign or partisan
political activity; (2) the act is designed to promote the election or defeat of a
particular candidate or candidates; (3) the act is done outside the campaign
period.
The second element requires the existence of a "candidate." Under Section
79(a), a candidate is one who "has filed a certificate of candidacy" to an
elective public office. Unless one has filed his certificate of candidacy, he is
not a "candidate." The third element requires that the campaign period has
not started when the election campaign or partisan political activity is
committed.
Assuming that all candidates to a public office file their certificates of
candidacy on the last day, which under Section 75 of the Omnibus Election
Code is the day before the start of the campaign period, then no one can be
prosecuted for violation of Section 80 for acts done prior to such last day.
Before such last day, there is no "particular candidate or candidates" to
campaign for or against. On the day immediately after the last day of filing,
the campaign period starts and Section 80 ceases to apply since Section 80
covers only acts done "outside" the campaign period.
Thus, if all candidates file their certificates of candidacy on the last day,
Section 80 may only apply to acts done on such last day, which is before the
start of the campaign period and after at least one candidate has filed his
certificate of candidacy. This is perhaps the reason why those running for
elective public office usually file their certificates of candidacy on the last day
or close to the last day.
There is no dispute that Eusebio’s acts of election campaigning or partisan
political activities were committed outside of the campaign period. The only
question is whether Eusebio, who filed his certificate of candidacy on 29
December 2003, was a "candidate" when he committed those acts before the
start of the campaign period on 24 March 2004.
Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the
filing of certificates of candidacy to 120 days before election day. Thus, the
original deadline was moved from 23 March 2004 to 2 January 2004, or 81
days earlier. The crucial question is: did this change in the deadline for filing
the certificate of candidacy make one who filed his certificate of candidacy
before 2 January 2004 immediately liable for violation of Section 80 if he
engaged in election campaign or partisan political activities prior to the start
of the campaign period on 24 March 2004?
Section 11 of RA 8436 provides:
SECTION 11. Official Ballot. – The Commission shall prescribe the size and
form of the official ballot which shall contain the titles of the positions to be
filled and/or the propositions to be voted upon in an initiative, referendum or
plebiscite. Under each position, the names of candidates shall be arranged
alphabetically by surname and uniformly printed using the same type size. A
fixed space where the chairman of the Board of Election Inspectors shall affix
his/her signature to authenticate the official ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to participate in the
election shall not be later than one hundred twenty (120) days before
the elections: Provided, That, any elective official, whether national or local,
running for any office other than the one which he/she is holding in a
permanent capacity, except for president and vice-president, shall be
deemed resigned only upon the start of the campaign period corresponding
to the position for which he/she is running: Provided, further, That, unlawful
acts or omissions applicable to a candidate shall take effect upon the start of
the aforesaid campaign period: Provided, finally, That, for purposes of the
May 11, 1998 elections, the deadline for filing of the certificate of candidacy
for the positions of President, Vice-President, Senators and candidates under
the party-list system as well as petitions for registration and/or manifestation
to participate in the party-list system shall be on February 9, 1998 while the
deadline for the filing of certificate of candidacy for other positions shall be on
March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or
the Bangko Sentral ng Pilipinas at the price comparable with that of private
printers under proper security measures which the Commission shall adopt.
The Commission may contract the services of private printers upon
certification by the National Printing Office/Bangko Sentral ng Pilipinas  that it
cannot meet the printing requirements. Accredited political parties and
deputized citizens’ arms of the Commission may assign watchers in the
printing, storage and distribution of official ballots.
To prevent the use of fake ballots, the Commission through the Committee
shall ensure that the serial number on the ballot stub shall be printed in
magnetic ink that shall be easily detectable by inexpensive hardware and
shall be impossible to reproduce on a photocopying machine, and that
identification marks, magnetic strips, bar codes and other technical and
security markings, are provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at
the rate of one (1) ballot for every registered voter with a provision of
additional four (4) ballots per precinct.44 (Emphasis added)
Under Section 11 of RA 8436, the only purpose for the early filing of
certificates of candidacy is to give ample time for the printing of official
ballots. This is clear from the following deliberations of the Bicameral
Conference Committee:
SENATOR GONZALES. Okay. Then, how about the campaign period, would
it be the same[,] uniform for local and national officials?
THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining
it at the present periods.
SENATOR GONZALES. But the moment one files a certificate of candidacy,
he’s already a candidate, and there are many prohibited acts on the part of
candidate.
THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .
SENATOR GONZALES. And you cannot say that the campaign period has
not yet began [sic].
THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that the filing of
the certificate will not bring about one’s being a candidate.
SENATOR GONZALES. If that’s a fact, the law cannot change a fact.
THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the
filing of the certificate of candidacy will not result in that official vacating his
position, we can also provide that insofar he is concerned, election period or
his being a candidate will not yet commence. Because here, the reason why
we are doing an early filing is to afford enough time to prepare this machine
readable ballots.
So, with the manifestations from the Commission on Elections, Mr.
Chairman, the House Panel will withdraw its proposal and will agree to the
120-day period provided in the Senate version.
THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.
xxxx
SENATOR GONZALES. How about prohibition against campaigning or doing
partisan acts which apply immediately upon being a candidate?
THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this
provision is just to afford the Comelec enough time to print the ballots, this
provision does not intend to change the campaign
periods as presently, or rather election periods as presently fixed by existing
law.
THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the
other prohibition.
THE CHAIRMAN (REP. TANJUATCO). That’s right.
THE ACTING CHAIRMAN (SEN. FERNAN). Okay.
THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would
be no conflict anymore because we are talking about the 120-day period
before election as the last day of filing a certificate of candidacy, election
period starts 120 days also. So that is election period already. But he will still
not be considered as a candidate.45(Emphasis added)
Thus, because of the early deadline of 2 January 2004 for purposes of
printing of official ballots, Eusebio filed his certificate of candidacy on 29
December 2003. Congress, however, never intended the filing of a certificate
of candidacy before 2 January 2004 to make the person filing to become
immediately a "candidate" for purposes other than the printing of ballots. This
legislative intent prevents the immediate application of Section 80 of the
Omnibus Election Code to those filing to meet the early deadline. The clear
intention of Congress was to preserve the "election periods as x x x fixed by
existing law" prior to RA 8436 and that one who files to meet the early
deadline "will still not be considered as a candidate."
Under Section 3(b) of the Omnibus Election Code, the applicable law prior to
RA 8436, the campaign period for local officials commences 45 days before
election day. For the 2004 local elections, this puts the start of the campaign
period on 24 March 2004. This also puts the last day for the filing of
certificate of candidacy, under the law prior to RA 8436, on 23 March 2004.
Eusebio is deemed to have filed his certificate of candidacy on
this date for purposes other than the printing of ballots because this is the
interpretation of Section 80 of the Omnibus Election Code most favorable to
one charged of its violation. Since Section 80 defines a criminal offense, 46 its
provisions must be construed liberally in favor of one charged of its violation.
Thus, Eusebio became a "candidate" only on 23 March 2004 for purposes
other than the printing of ballots.
Acts committed by Eusebio prior to his being a "candidate" on 23 March
2004, even if constituting election campaigning or partisan political activities,
are not punishable under Section 80 of the Omnibus Election Code. Such
acts are protected as part of freedom of expression of a citizen before he
becomes a candidate for elective public office. Acts committed by Eusebio on
or after 24 March 2004, or during the campaign period, are not covered by
Section 80 which punishes only acts outside the campaign period.
We now examine the specific questioned acts of Eusebio whether they
violate Section 80 of the Omnibus Election Code.
We begin with the 14 February 2004 and the 17 March 2004 speeches of
Eusebio:
 1) The speech uttered on February 14, 2004 during the meeting
dubbed as "Lingap sa Barangay" in Barangay San Miguel, Pasig
City wherein [Eusebio] allegedly asked the people to vote for
him and solicited for their support x x x:
2) Another speech given on March 17, 2004 in ROTC St.,
Rosario, Pasig City wherein [Eusebio] again allegedly uttered
defamatory statements against co-[candidate] Lanot and
campaigned for his (respondent’s) and his group’s
candidacy.47 (Emphasis in the original)
The 14 February 2004 and 17 March 2004 speeches happened before the
date Eusebio is deemed to have filed his certificate of candidacy on 23 March
2004 for purposes other than the printing of ballots. Eusebio, not being a
candidate then, is not liable for speeches on 14 February 2004 and 17 March
2004 asking the people to vote for him.
The survey showing Eusebio leading in the mayoralty race was published
before Eusebio was deemed to have filed his certificate of candidacy on 23
March 2004. Thus:
3) He caused to be published in leading newspapers about a survey
allegedly done by Survey Specialist, Inc. showing him to be leading in
the mayoralty race in Pasig City.
xxxx
They also presented Certification issued by Mr. Diego Cagahastian, News
Editor of Manila Bulletin dated 10 March 2004 and Mr. Isaac G. Belmonte,
Editor-in-Chief of Philippine Star dated March 2, 2004 to the effect that the
articles in question came from the camp of [Eusebio].48 (Emphasis in the
original)
Eusebio is not liable for this publication which was made before he became a
candidate on 23 March 2004.
The political advertisement in the Philippine Free Press issue of 7 February
2004 was also made before Eusebio became a candidate on 23 March 2004.
Thus:
4) He paid a political advertisement in the Philippine Free Press in the
amount of ₱193,660.00 as published in its issue dated February 7,
2004.49 (Emphasis in the original)
The display of Eusebio’s billboards, posters, stickers, and streamers, as well
as his distribution of free shoes, all happened also before Eusebio became a
candidate on 23 March 2004. Thus:
5) The display of billboards containing the words "Serbisyo Eusebio"
and "ST" which means "Serbisyong Totoo" before the start of the
campaign period.
xxxx
6) Posters showing the respondent and his running mate Yoyong
Martinez as well those showing the name "KA ENTENG EUSEBIO" and
"BOBBY EUSEBIO" in connection with the dengue project were posted
everywhere even before the start of the campaign period.
xxxx
Petitioners’ witnesses Alfonso Cordova and Alfredo Lacsamana as well as
Hermogenes Garcia stated in their respective affidavits marked as Exhs. "L"
and "L-1" that the pictures were taken on March 3, 7 & 8, 2004.
xxxx
7) Streamers bearing the words "Pasig City is for PEACE" were likewise
displayed with the two letters "E" prominently written.
xxxx
Said streamers were among those captured by the camera of the petitioners’
witnesses Hermogenes Garcia and Nelia Sarmiento before the start of the
campaign period.
8) Stickers of [Eusebio] were likewise pasted all over the city before the
start of the campaign period.
xxxx
9) [Eusebio] engaged in vote-buying by distributing shoes to the
students while telling the parents that by way of gratitude, they should
vote for him.
The affidavits of Ceferino Tantay marked as Exh. "M" and Flor Montefalcon,
Norie Altiche and Myrna Verdillo marked as Exh. "O" are uncontroverted.
Their statement that free shoes were given to the students of Rizal High
School was corroborated by the Manila Bulletin issue of February 6, 2004
which showed the picture of the respondent delivering his speech before a
group of students.
x x x x50 (Emphasis in the original)
Based on the findings of Director Ladra, the questioned acts attributed to
Eusebio all occurred before the start of the campaign period on 24 March
2004. Indeed, Director Ladra applied Section 80 of the Omnibus Election
Code against Eusebio precisely because Eusebio committed these acts
"outside" of the campaign period. However, Director Ladra erroneously
assumed that Eusebio became a "candidate," for purposes of Section 80,
when Eusebio filed his certificate of candidacy on 29 December 2003.
Under Section 11 of RA 8436, Eusebio became a "candidate," for purposes
of Section 80 of the Omnibus Election Code, only on 23 March 2004, the last
day for filing certificates of candidacy. Applying the facts - as found by
Director Ladra and affirmed by the COMELEC First Division - to Section 11 of
RA 8436, Eusebio clearly did not violate Section 80 of the Omnibus Election
Code which requires the existence of a "candidate," one who has filed his
certificate of candidacy, during the commission of the questioned acts.
Eusebio asserts that Section 11 of RA 8436 exculpates him from any liability
for the questioned acts.1âwphi1 Eusebio points out that Section 11 contains
the following proviso:
Provided, further, That, unlawful acts or omissions applicable to a candidate
shall take effect upon the start of the aforesaid campaign period: x x x
Eusebio theorizes that since the questioned acts admittedly took place before
the start of the campaign period, such acts are not "unlawful acts or
omissions applicable to a candidate."
We find no necessity to apply in the present case this proviso in Section 11 of
RA 8436. Eusebio’s theory legalizes election campaigning or partisan
political activities before the campaign period even if a person has already
filed his certificate of candidacy based on the election periods under existing
laws prior to RA 8436. Under Eusebio’s theory, Section 11 of RA 8436
punishes unlawful acts applicable to a candidate only if committed during the
campaign period.
By definition, the election offense in Section 80 of the Omnibus Election
Code cannot be committed during the campaign period. On the other hand,
under Eusebio’s theory, unlawful acts applicable to a candidate cannot be
committed outside of the campaign period. The net result is to make the
election offense in Section 80 physically impossible to commit at any time.
We shall leave this issue for some other case in the future since the present
case can be resolved without applying the proviso in Section 11 of RA 8436.
Effect of Eusebio’s Possible
Disqualification
As second placer, Lanot prayed that he be proclaimed as the rightful Pasig
City Mayor in the event of Eusebio’s disqualification. As third placer,
Benavides, on the other hand, prays that she be proclaimed as the rightful
Pasig City Mayor in the event of Eusebio’s disqualification and in view of
Lanot’s death. Even if we assume Eusebio’s disqualification as fact, we
cannot grant either prayer.
The disqualification of the elected candidate does not entitle the candidate
who obtained the second highest number of votes to occupy the office
vacated because of the disqualification.51 Votes cast in favor of a candidate
who obtained the highest number of votes, against whom a petition for
disqualification was filed before the election, are presumed to have been cast
in the belief that he was qualified. For this reason, the second placer cannot
be declared elected.52
The exception to this rule rests on two assumptions. First, the one who
obtained the highest number of votes is disqualified. Second, the voters are
so fully aware in fact and in law of a candidate’s disqualification to bring such
awareness within the realm of notoriety but nonetheless the voters still cast
their votes in favor of the ineligible candidate.53 Lanot and Benavides failed to
prove that the exception applies in the present case. Thus, assuming for the
sake of argument that Eusebio is disqualified, the rule on succession
provides that the duly elected Vice-Mayor of Pasig City shall succeed in
Eusebio’s place.54
WHEREFORE, we DISMISS the petition. We find no grave abuse of
discretion in the 10 May 2004 Advisory of Chairman Benjamin S. Abalos and
in the 21 May 2004 Order of the Commission on Elections En Banc. We SET
ASIDE the 20 August 2004 Resolution of the Commission En Banc since
respondent Vicente P. Eusebio did not commit any act which would disqualify
him as a candidate in the 10 May 2004 elections.
SO ORDERED.
G.R. No. 221697
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,  When petitioner was five (5) years old, celebrity spouses Ronald Allan
vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.
x-----------------------x
G.R. No. 221698-700
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners, 
vs.
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND
AMADO D. VALDEZ Respondents.
DECISION
PEREZ, J.:
Before the Court are two consolidated petitions under Rule 64 in relation
to Rule 65 of the Rules of Court with extremely urgent application for
an ex parte issuance of temporary restraining order/status quo
ante order and/or writ of preliminary injunction assailing the following: (1)
1 December 2015 Resolution of the Commission on Elections
(COMELEC) Second Division; (2) 23 December 2015 Resolution of the
COMELEC En Banc, in SPA No. 15-001 (DC); (3) 11 December 2015
Resolution of the COMELEC First Division; and ( 4) 23 December 2015
Resolution of the COMELEC En Banc, in SPA No. 15-002 (DC), SPA No.
15-007 (DC) and SPA No. 15-139 (DC) for having been issued without
jurisdiction or with grave abuse of discretion amounting to lack or excess
of jurisdiction.
The Facts
Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found
abandoned as a newborn infant in the Parish Church of Jaro, Iloilo by a
certain Edgardo Militar (Edgardo) on 3 September 1968. Parental care
and custody over petitioner was passed on by Edgardo to his relatives,
Emiliano Militar (Emiliano) and his wife. Three days after, 6 September
1968, Emiliano reported and registered petitioner as a foundling with the
Office of the Civil Registrar of Iloilo City (OCR-Iloilo). In her Foundling
Certificate and Certificate of Live Birth, the petitioner was given the name
"Mary Grace Natividad Contreras Militar."  1
Kelley Poe (a.k.a. Fenando Poe, Jr.) and Jesusa Sonora Poe (a.k.a.
Susan Roces) filed a petition for her adoption with the Municipal Trial
Court (MTC) of San Juan City. On 13 May 1974, the trial court granted
their petition and ordered that petitioner's name be changed from "Mary
Grace Natividad Contreras Militar" to "Mary Grace Natividad Sonora
Poe." Although necessary notations were made by OCR-Iloilo on
petitioner's foundling certificate reflecting the court decreed adoption,  the
2
petitioner's adoptive mother discovered only sometime in the second half
of 2005 that the lawyer who handled petitioner's adoption failed to secure
from the OCR-Iloilo a new Certificate of Live Birth indicating petitioner's
new name and the name of her adoptive parents.   Without delay,
3
petitioner's mother executed an affidavit attesting to the lawyer's omission
which she submitted to the OCR-Iloilo. On 4 May 2006, OCR-Iloilo issued
a new Certificate of Live Birth in the name of Mary Grace Natividad
Sonora Poe. 4
Having reached the age of eighteen (18) years in 1986, petitioner
registered as a voter with the local COMELEC Office in San Juan City.
On 13 December 1986, she received her COMELEC Voter's Identification
Card for Precinct No. 196 in Greenhills, San Juan, Metro Manila. 5
On 4 April 1988, petitioner applied for and was issued Philippine Passport
No. F927287  by the Department of Foreign Affairs (DFA). Subsequently,
6
on 5 April 1993 and 19 May 1998, she renewed her Philippine passport
and respectively secured Philippine Passport Nos. L881511 and
DD156616. 7
Initially, the petitioner enrolled and pursued a degree in Development
Studies at the University of the Philippines but she opted to continue her
8
studies abroad and left for the United States of America (U.S.) in 1988.
Petitioner graduated in 1991 from Boston College in Chestnuts Hill,
Massachusetts where she earned her Bachelor of Arts degree in Political
Studies. 9
On 27 July 1991, petitioner married Teodoro Misael Daniel V.
Llamanzares (Llamanzares), a citizen of both the Philippines and the
U.S., at Sanctuario de San Jose Parish in San Juan City.   Desirous of
10
being with her husband who was then based in the U.S., the couple flew
back to the U.S. two days after the wedding ceremony or on 29 July
1991. 11
While in the U.S., the petitioner gave birth to her eldest child Brian Daniel
(Brian) on 16 April 1992.  Her two daughters Hanna MacKenzie (Hanna)
12
and Jesusa Anika (Anika) were both born in the Philippines on 10 July
1998 and 5 June 2004, respectively.  13
On 18 October 2001, petitioner became a naturalized American
citizen.   She obtained U.S. Passport No. 017037793 on 19 December
14
2001. 15
On 8 April 2004, the petitioner came back to the Philippines together with
Hanna to support her father's candidacy for President in the May 2004
elections. It was during this time that she gave birth to her youngest
daughter Anika. She returned to the U.S. with her two daughters on 8
July 2004.  16
After a few months, specifically on 13 December 2004, petitioner rushed
back to the Philippines upon learning of her father's deteriorating medical
condition.   Her father slipped into a coma and eventually expired. The
17
petitioner stayed in the country until 3 February 2005 to take care of her
father's funeral arrangements as well as to assist in the settlement of his
estate. 18
According to the petitioner, the untimely demise of her father was a
severe blow to her entire family. In her earnest desire to be with her
grieving mother, the petitioner and her husband decided to move and
reside permanently in the Philippines sometime in the first quarter of
2005.  The couple began preparing for their resettlement including
19
notification of their children's schools that they will be transferring to
Philippine schools for the next semester; coordination with property
20
movers for the relocation of their household goods, furniture and cars
from the U.S. to the Philippines;  and inquiry with Philippine authorities as
21
to the proper procedure to be followed in bringing their pet dog into the
country.  As early as 2004, the petitioner already quit her job in the U.S.
22 23
Finally, petitioner came home to the Philippines on 24 May 2005  and 24
without delay, secured a Tax Identification Number from the Bureau of
Internal Revenue. Her three (3) children immediately followed  while her
25
husband was forced to stay in the U.S. to complete pending projects as
well as to arrange the sale of their family home there. 26
The petitioner and her children briefly stayed at her mother's place until
she and her husband purchased a condominium unit with a parking slot
at One Wilson Place Condominium in San Juan City in the second half of
2005.  The corresponding Condominium Certificates of Title covering the
27
unit and parking slot were issued by the Register of Deeds of San Juan
City to petitioner and her husband on 20 February 2006.  Meanwhile, her
28
children of school age began attending Philippine private schools.
On 14 February 2006, the petitioner made a quick trip to the U.S. to
supervise the disposal of some of the family's remaining household
belongings.  She travelled back to the Philippines on 11 March 2006.
29 30
In late March 2006, petitioner's husband officially informed the U.S.
Postal Service of the family's change and abandonment of their address
in the U.S.  The family home was eventually sold on 27 April
31
2006.  Petitioner's husband resigned from his job in the U.S. in April
32
2006, arrived in the country on 4 May 2006 and started working for a
major Philippine company in July 2006. 33
In early 2006, petitioner and her husband acquired a 509-square meter
lot in Corinthian Hills, Quezon City where they built their family
home  and to this day, is where the couple and their children have been
34
residing.  A Transfer Certificate of Title covering said property was issued
35
in the couple's name by the Register of Deeds of Quezon City on 1June
2006.
On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of
the Philippines pursuant to Republic Act (R.A.) No. 9225 or the
Citizenship Retention and Re-acquisition Act of 2003.  Under the same
36
Act, she filed with the Bureau of Immigration (BI) a sworn petition to
reacquire Philippine citizenship together with petitions for derivative
citizenship on behalf of her three minor children on 10 July 2006.  As can
37
be gathered from its 18 July 2006 Order, the BI acted favorably on
petitioner's petitions and declared that she is deemed to have reacquired
her Philippine citizenship while her children are considered as citizens of
the Philippines.  Consequently, the BI issued Identification Certificates
38
(ICs) in petitioner's name and in the names of her three (3) children. 39
Again, petitioner registered as a voter of Barangay Santa Lucia, San
Juan City on 31 August 2006.  She also secured from the DFA a new
40
Philippine Passport bearing the No. XX4731999.  This passport was
41
renewed on 18 March 2014 and she was issued Philippine Passport No.
EC0588861 by the DFA. 42
On 6 October 2010, President Benigno S. Aquino III appointed petitioner
as Chairperson of the Movie and Television Review and Classification
Board (MTRCB).  Before assuming her post, petitioner executed an
43
"Affidavit of Renunciation of Allegiance to the United States of America
and Renunciation of American Citizenship" before a notary public in
Pasig City on 20 October 2010,  in satisfaction of the legal requisites
44
stated in Section 5 of R.A. No. 9225.  The following day, 21 October
45
2010 petitioner submitted the said affidavit to the BI  and took her oath of
46
office as Chairperson of the MTRCB.  From then on, petitioner stopped
47
using her American passport. 48
On 12 July 2011, the petitioner executed before the Vice Consul of the
U.S. Embassy in Manila an "Oath/Affirmation of Renunciation of
Nationality of the United States."  On that day, she accomplished a sworn
49
questionnaire before the U.S. Vice Consul wherein she stated that she
had taken her oath as MTRCB Chairperson on 21 October 2010 with the
intent, among others, of relinquishing her American citizenship.  In the
50
same questionnaire, the petitioner stated that she had resided outside of
the U.S., specifically in the Philippines, from 3 September 1968 to 29 July
1991 and from May 2005 to present. 51
On 9 December 2011, the U.S. Vice Consul issued to petitioner a
"Certificate of Loss of Nationality of the United States" effective 21
October 2010. 52
On 2 October 2012, the petitioner filed with the COMELEC her Certificate
of Candidacy (COC) for Senator for the 2013 Elections wherein she
answered "6 years and 6 months" to the question "Period of residence in
the Philippines before May 13, 2013."  Petitioner obtained the highest
53
number of votes and was proclaimed Senator on 16 May 2013.  54
On 19 December 2013, petitioner obtained Philippine Diplomatic
Passport No. DE0004530.  55
On 15 October 2015, petitioner filed her COC for the Presidency for the
May 2016 Elections.   In her COC, the petitioner declared that she is a
56
natural-born citizen and that her residence in the Philippines up to the
day before 9 May 2016 would be ten (10) years and eleven (11) months
counted from 24 May 2005.  The petitioner attached to her COC an
57
"Affidavit Affirming Renunciation of U.S.A. Citizenship" subscribed and
sworn to before a notary public in Quezon City on 14 October 2015.  58
Petitioner's filing of her COC for President in the upcoming elections
triggered the filing of several COMELEC cases against her which were
the subject of these consolidated cases.
Origin of Petition for Certiorari in G.R. No. 221697
A day after petitioner filed her COC for President, Estrella Elamparo
(Elamparo) filed a petition to deny due course or cancel said COC which
was docketed as SPA No. 15-001 (DC) and raffled to the COMELEC
Second Division. She is convinced that the COMELEC has jurisdiction
59
over her petition.  Essentially, Elamparo's contention is that petitioner
60
committed material misrepresentation when she stated in her COC that
she is a natural-born Filipino citizen and that she is a resident of the
Philippines for at least ten (10) years and eleven (11) months up to the
day before the 9 May 2016 Elections. 61
On the issue of citizenship, Elamparo argued that petitioner cannot be
considered as a natural-born Filipino on account of the fact that she was
a foundling.  Elamparo claimed that international law does not confer
62
natural-born status and Filipino citizenship on foundlings.  Following this
63
line of reasoning, petitioner is not qualified to apply for reacquisition of
Filipino citizenship under R.A. No. 9225 for she is not a natural-born
Filipino citizen to begin with. Even assuming arguendo that petitioner
64
was a natural-born Filipino, she is deemed to have lost that status when
she became a naturalized American citizen.  According to Elamparo,
65
natural-born citizenship must be continuous from birth. 66
On the matter of petitioner's residency, Elamparo pointed out that
petitioner was bound by the sworn declaration she made in her 2012
COC for Senator wherein she indicated that she had resided in the
country for only six ( 6) years and six ( 6) months as of May 2013
Elections. Elamparo likewise insisted that assuming arguendo that
petitioner is qualified to regain her natural-born status under R.A. No.
9225, she still fell short of the ten-year residency requirement of the
Constitution as her residence could only be counted at the earliest from
July 2006, when she reacquired Philippine citizenship under the said Act.
Also on the assumption that petitioner is qualified to reacquire lost
Philippine Citizenship, Elamparo is of the belief that she failed to
reestablish her domicile in the Philippines.67
Petitioner seasonably filed her Answer wherein she countered that:
(1) the COMELEC did not have jurisdiction over Elamparo's
petition as it was actually a petition for quo warranto which could
only be filed if Grace Poe wins in the Presidential elections, and
that the Department of Justice (DOJ) has primary jurisdiction to
revoke the BI's July 18, 2006 Order;
(2) the petition failed to state a cause of action because it did not
contain allegations which, if hypothetically admitted, would make
false the statement in her COC that she is a natural-born Filipino
citizen nor was there any allegation that there was a willful or
deliberate intent to misrepresent on her part;
(3) she did not make any material misrepresentation in the COC
regarding her citizenship and residency qualifications for:
a. the 1934 Constitutional Convention deliberations show
that foundlings were considered citizens;
b. foundlings are presumed under international law to
have been born of citizens of the place where they are
found;
c. she reacquired her natural-born Philippine citizenship
under the provisions of R.A. No. 9225;
d. she executed a sworn renunciation of her American
citizenship prior to the filing of her COC for President in
the May 9, 2016 Elections and that the same is in full
force and effect and has not been withdrawn or recanted;
e. the burden was on Elamparo in proving that she did not
possess natural-born status;
f. residence is a matter of evidence and that she
reestablished her domicile in the Philippines as early as
May 24, 2005;
g. she could reestablish residence even before she
reacquired natural-born citizenship under R.A. No. 9225;
h. statement regarding the period of residence in her
2012 COC for Senator was an honest mistake, not
binding and should give way to evidence on her true date
of reacquisition of domicile;
i. Elamparo's petition is merely an action to usurp the
sovereign right of the Filipino people to decide a purely
political question, that is, should she serve as the
country's next leader. 68
After the parties submitted their respective Memoranda, the petition was
deemed submitted for resolution.
On 1 December 2015, the COMELEC Second Division promulgated a
Resolution finding that petitioner's COC, filed for the purpose of running
for the President of the Republic of the Philippines in the 9 May 2016
National and Local Elections, contained material representations which
are false. The fallo of the aforesaid Resolution reads:
WHEREFORE, in view of all the foregoing considerations, the instant
Petition to Deny Due Course to or Cancel Certificate of Candidacy is
hereby GRANTED. Accordingly, the Certificate of Candidacy for
President of the Republic of the Philippines in the May 9, 2016 National
and Local Elections filed by respondent Mary Grace Natividad Sonora
Poe Llamanzares is hereby CANCELLED. 69
Motion for Reconsideration of the 1 December 2015 Resolution was filed
by petitioner which the COMELEC En Banc resolved in its 23 December
2015 Resolution by denying the same. 70
Origin of Petition for Certiorari in G.R. Nos. 221698-700
This case stemmed from three (3) separate petitions filed by Francisco S.
Tatad (Tatad), Antonio P. Contreras (Contreras) and Amado D. Valdez
(Valdez) against petitioner before the COMELEC which were
consolidated and raffled to its First Division.
In his petition to disqualify petitioner under Rule 25 of the COMELEC
Rules of Procedure,  docketed as SPA No. 15-002 (DC), Tatad alleged
71
that petitioner lacks the requisite residency and citizenship to qualify her
for the Presidency.72
Tatad theorized that since the Philippines adheres to the principle of jus
sanguinis, persons of unknown parentage, particularly foundlings, cannot
be considered natural-born Filipino citizens since blood relationship is
determinative of natural-born status.  Tatad invoked the rule of statutory
73
construction that what is not included is excluded. He averred that the
fact that foundlings were not expressly included in the categories of
citizens in the 193 5 Constitution is indicative of the framers' intent to
exclude them.  Therefore, the burden lies on petitioner to prove that she
74
is a natural-born citizen. 75
Neither can petitioner seek refuge under international conventions or
treaties to support her claim that foundlings have a
nationality.  According to Tatad, international conventions and treaties
76
are not self-executory and that local legislations are necessary in order to
give effect to treaty obligations assumed by the Philippines.  He also
77
stressed that there is no standard state practice that automatically
confers natural-born status to foundlings. 78
Similar to Elamparo's argument, Tatad claimed that petitioner cannot
avail of the option to reacquire Philippine citizenship under R.A. No. 9225
because it only applies to former natural-born citizens and petitioner was
not as she was a foundling. 79
Referring to petitioner's COC for Senator, Tatad concluded that she did
not comply with the ten (10) year residency requirement.  Tatad opined
80
that petitioner acquired her domicile in Quezon City only from the time
she renounced her American citizenship which was sometime in 2010 or
2011.  Additionally, Tatad questioned petitioner's lack of intention to
81
abandon her U.S. domicile as evinced by the fact that her husband
stayed thereat and her frequent trips to the U.S. 82
In support of his petition to deny due course or cancel the COC of
petitioner, docketed as SPA No. 15-139 (DC), Valdez alleged that her
repatriation under R.A. No. 9225 did not bestow upon her the status of a
natural-born citizen.  He advanced the view that former natural-born
83
citizens who are repatriated under the said Act reacquires only their
Philippine citizenship and will not revert to their original status as natural-
born citizens. 84
He further argued that petitioner's own admission in her COC for Senator
that she had only been a resident of the Philippines for at least six (6)
years and six (6) months prior to the 13 May 2013 Elections operates
against her. Valdez rejected petitioner's claim that she could have validly
reestablished her domicile in the Philippines prior to her reacquisition of
Philippine citizenship. In effect, his position was that petitioner did not
meet the ten (10) year residency requirement for President.
Unlike the previous COMELEC cases filed against petitioner, Contreras'
petition,  docketed as SPA No. 15-007 (DC), limited the attack to the
85
residency issue. He claimed that petitioner's 2015 COC for President
should be cancelled on the ground that she did not possess the ten-year
period of residency required for said candidacy and that she made false
entry in her COC when she stated that she is a legal resident of the
Philippines for ten (10) years and eleven (11) months by 9 May
2016.  Contreras contended that the reckoning period for computing
86
petitioner's residency in the Philippines should be from 18 July 2006, the
date when her petition to reacquire Philippine citizenship was approved
by the BI.  He asserted that petitioner's physical presence in the country
87
before 18 July 2006 could not be valid evidence of reacquisition of her
Philippine domicile since she was then living here as an American citizen
and as such, she was governed by the Philippine immigration laws. 88
In her defense, petitioner raised the following arguments:
First, Tatad's petition should be dismissed outright for failure to state a
cause of action. His petition did not invoke grounds proper for a
disqualification case as enumerated under Sections 12 and 68 of the
Omnibus Election Code.  Instead, Tatad completely relied on the alleged
89
lack of residency and natural-born status of petitioner which are not
among the recognized grounds for the disqualification of a candidate to
an elective office. 90
Second, the petitions filed against her are basically petitions for quo
warranto as they focus on establishing her ineligibility for the
Presidency.  A petition for quo warranto falls within the exclusive
91
jurisdiction of the Presidential Electoral Tribunal (PET) and not the
COMELEC. 92
Third, the burden to prove that she is not a natural-born Filipino citizen is
on the respondents.  Otherwise stated, she has a presumption in her
93
favor that she is a natural-born citizen of this country.
Fourth, customary international law dictates that foundlings are entitled to
a nationality and are presumed to be citizens of the country where they
are found.  Consequently, the petitioner is considered as a natural-born
94
citizen of the Philippines. 95
Fifth, she claimed that as a natural-born citizen, she has every right to be
repatriated under R.A. No. 9225 or the right to reacquire her natural-born
status.  Moreover, the official acts of the Philippine Government enjoy the
96
presumption of regularity, to wit: the issuance of the 18 July 2006 Order
of the BI declaring her as natural-born citizen, her appointment as
MTRCB Chair and the issuance of the decree of adoption of San Juan
RTC.  She believed that all these acts reinforced her position that she is
97
a natural-born citizen of the Philippines.98
Sixth, she maintained that as early as the first quarter of 2005, she
started reestablishing her domicile of choice in the Philippines as
demonstrated by her children's resettlement and schooling in the country,
purchase of a condominium unit in San Juan City and the construction of
their family home in Corinthian Hills.99
Seventh, she insisted that she could legally reestablish her domicile of
choice in the Philippines even before she renounced her American
citizenship as long as the three determinants for a change of domicile are
complied with.  She reasoned out that there was no requirement that
100
renunciation of foreign citizenship is a prerequisite for the acquisition of a
new domicile of choice. 101
Eighth, she reiterated that the period appearing in the residency portion
of her COC for Senator was a mistake made in good faith. 102
In a Resolution  promulgated on 11 December 2015, the COMELEC
103
First Division ruled that petitioner is not a natural-born citizen, that she
failed to complete the ten (10) year residency requirement, and that she
committed material misrepresentation in her COC when she declared
therein that she has been a resident of the Philippines for a period of ten
(10) years and eleven (11) months as of the day of the elections on 9
May 2016. The COMELEC First Division concluded that she is not
qualified for the elective position of President of the Republic of the
Philippines. The dispositive portion of said Resolution reads:
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES, to GRANT the Petitions and cancel the Certificate of
Candidacy of MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES for the elective position of President of the Republic of
the Philippines in connection with the 9 May 2016 Synchronized Local
and National Elections.
Petitioner filed a motion for reconsideration seeking a reversal of the
COMELEC First Division's Resolution. On 23 December 2015, the
COMELEC En Banc issued a Resolution denying petitioner's motion for
reconsideration.
Alarmed by the adverse rulings of the COMELEC, petitioner instituted the
present petitions for certiorari with urgent prayer for the issuance of an ex
parte temporary restraining order/status quo ante order and/or writ of
preliminary injunction. On 28 December 2015, temporary restraining
orders were issued by the Court enjoining the COMELEC and its
representatives from implementing the assailed COMELEC Resolutions
until further orders from the Court. The Court also ordered the
consolidation of the two petitions filed by petitioner in its Resolution of 12
January 2016. Thereafter, oral arguments were held in these cases.
The Court GRANTS the petition of Mary Grace Natividad S. Poe-
Llamanzares and to ANNUL and SET ASIDE the:
1. Resolution dated 1 December 2015 rendered through its
Second Division, in SPA No. 15-001 (DC),
entitled Estrella C. Elamparo, petitioner, vs. Mary Grace
Natividad Sonora Poe-Llamanzares.
2. Resolution dated 11 December 2015, rendered through its First
Division, in the consolidated cases SPA No. 15-002 (DC)
entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad
Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC)
entitled Antonio P. Contreras, petitioner, vs. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent; and SPA No.
15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent.
3. Resolution dated 23 December 2015 of the Commission En
Banc, upholding the 1 December 2015 Resolution of the Second
Division.
4. Resolution dated 23 December 2015 of the Commission En
Banc, upholding the 11 December 2015 Resolution of the First
Division.
The procedure and the conclusions from which the questioned
Resolutions emanated are tainted with grave abuse of discretion
amounting to lack of jurisdiction. The petitioner is a QUALIFIED
CANDIDATE for President in the 9 May 2016 National Elections.
The issue before the COMELEC is whether or not the COC of petitioner
should be denied due course or cancelled "on the exclusive ground" that
she made in the certificate a false material representation. The exclusivity
of the ground should hedge in the discretion of the COMELEC and
restrain it from going into the issue of the qualifications of the candidate
for the position, if, as in this case, such issue is yet undecided or
undetermined by the proper authority. The COMELEC cannot itself, in the
same cancellation case, decide the qualification or lack thereof of the
candidate.
We rely, first of all, on the Constitution of our Republic, particularly its
provisions in Article IX, C, Section 2:
Section 2. The Commission on Elections shall exercise the following
powers and functions:
(1) Enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum, and
recall.
(2) Exercise exclusive original jurisdiction over all contests
relating to the elections, returns, and qualifications of all elective
regional, provincial, and city officials, and appellate jurisdiction
over all contests involving elective municipal officials decided by
trial courts of general jurisdiction, or involving elective barangay
officials decided by trial courts of limited jurisdiction.
Decisions, final orders, or rulings of the Commission on election
contests involving elective municipal and barangay offices shall
be final, executory, and not appealable.
(3) Decide, except those involving the right to vote, all questions
affecting elections, including determination of the number and
location of polling places, appointment of election officials and
inspectors, and registration of voters.
(4) Deputize, with the concurrence of the President, law
enforcement agencies and instrumentalities of the Government,
including the Armed Forces of the Philippines, for the exclusive
purpose of ensuring free, orderly, honest, peaceful, and credible
elections.
(5) Register, after sufficient publication, political parties,
organizations, or coalitions which, in addition to other
requirements, must present their platform or program of
government; and accredit citizens' arms of the Commission on
Elections. Religious denominations and sects shall not be
registered. Those which seek to achieve their goals through
violence or unlawful means, or refuse to uphold and adhere to
this Constitution, or which are supported by any foreign
government shall likewise be refused registration.
Financial contributions from foreign governments and their
agencies to political parties, organizations, coalitions, or
candidates related to elections constitute interference in national
affairs, and, when accepted, shall be an additional ground for the
cancellation of their registration with the Commission, in addition
to other penalties that may be prescribed by law.
(6) File, upon a verified complaint, or on its own initiative,
petitions in court for inclusion or exclusion of voters; investigate
and, where appropriate, prosecute cases of violations of election
laws, including acts or omissions constituting election frauds,
offenses, and malpractices.
(7) Recommend to the Congress effective measures to minimize
election spending, including limitation of places where
propaganda materials shall be posted, and to prevent and
penalize all forms of election frauds, offenses, malpractices, and
nuisance candidacies.
(8) Recommend to the President the removal of any officer or
employee it has deputized, or the imposition of any other
disciplinary action, for violation or disregard of, or disobedience to
its directive, order, or decision.
(9) Submit to the President and the Congress a comprehensive
report on the conduct of each election, plebiscite, initiative,
referendum, or recall.
Not any one of the enumerated powers approximate the exactitude of the
provisions of Article VI, Section 17 of the same basic law stating that:
The Senate and the House of Representatives shall each have
an Electoral Tribunal which shall be the sole judge of all contests
relating to the election, returns, and qualifications of their
respective Members. Each Electoral Tribunal shall be composed
of nine Members, three of whom shall be Justices of the Supreme
Court to be designated by the Chief Justice, and the remaining
six shall be Members of the Senate or the House of
Representatives, as the case may be, who shall be chosen on the
basis of proportional representation from the political parties and
 the parties or organizations registered under the party-list system
represented therein. The senior Justice in the Electoral Tribunal
shall be its Chairman.
or of the last paragraph of Article VII, Section 4 which provides that:
The Supreme Court, sitting en banc, shall be the sole judge of all
contests relating to the election, returns, and qualifications of the
President or Vice-President, and may promulgate its rules for the
purpose.
The tribunals which have jurisdiction over the question of the
qualifications of the President, the Vice-President, Senators and the
Members of the House of Representatives was made clear by the
Constitution. There is no such provision for candidates for these
positions.
Can the COMELEC be such judge?
The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v.
Commission on Elections,  which was affirmatively cited in the En
104
Banc decision in Fermin v. COMELEC  is our guide. The citation
105
in Fermin reads:
Apparently realizing the lack of an authorized proceeding for declaring
the ineligibility of candidates, the COMELEC amended its rules on
February 15, 1993 so as to provide in Rule 25 § 1, the following:
Grounds for disqualification. - Any candidate who does not
possess all the qualifications of a candidate as provided for by the
Constitution or by existing law or who commits any act declared
by law to be grounds for disqualification may be disqualified from
continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates, however,
cannot be supplied by a mere rule. Such an act is equivalent to the
creation of a cause of action which is a substantive matter which the
COMELEC, in the exercise of its rule-making power under Art. IX, A, §6
of the Constitution, cannot do it. It is noteworthy that the Constitution
withholds from the COMELEC even the power to decide cases involving
the right to vote, which essentially involves an inquiry
into qualifications based on age, residence and citizenship of voters. [Art.
IX, C, §2(3)]
The assimilation in Rule 25 of the COMELEC rules of grounds for
ineligibility into grounds for disqualification is contrary to the evident
intention of the law. For not only in their grounds but also in their
consequences are proceedings for "disqualification" different from those
for a declaration of "ineligibility." "Disqualification" proceedings, as
already stated, are based on grounds specified in § 12 and §68 of the
Omnibus Election Code and in §40 of the Local Government Code and
are for the purpose of barring an individual from becoming a candidate or
from continuing as a candidate for public office. In a word, their purpose
is to eliminate a candidate from the race either from the start or during its
progress. "Ineligibility," on the other hand, refers to the lack of the
qualifications prescribed in the Constitution or the statutes for holding
public office and the purpose of the proceedings for declaration of
ineligibility is to remove the incumbent from office.
Consequently, that an individual possesses the qualifications for a public
office does not imply that he is not disqualified from becoming a
candidate or continuing as a candidate for a public office and vice versa.
We have this sort of dichotomy in our Naturalization Law. (C.A. No. 473)
That an alien has the qualifications prescribed in §2 of the Law does not
imply that he does not suffer from any of [the] disqualifications provided in
§4.
Before we get derailed by the distinction as to grounds and the
consequences of the respective proceedings, the importance of the
opinion is in its statement that "the lack of provision for declaring the
ineligibility of candidates, however, cannot be supplied by a mere rule".
Justice Mendoza lectured in Romualdez-Marcos that:
Three reasons may be cited to explain the absence of an authorized
proceeding for determining before election the qualifications of a
candidate.
First is the fact that unless a candidate wins and is proclaimed elected,
there is no necessity for determining his eligibility for the office. In
contrast, whether an individual should be disqualified as a candidate for
acts constituting election offenses (e.g., vote buying, over spending,
commission of prohibited acts) is a prejudicial question which should be
determined lest he wins because of the very acts for which his
disqualification is being sought. That is why it is provided that if the
grounds for disqualification are established, a candidate will not be voted
for; if he has been voted for, the votes in his favor will not be counted;
and if for some reason he has been voted for and he has won, either he
will not be proclaimed or his proclamation will be set aside.
Second is the fact that the determination of a candidates'
eligibility, e.g., his citizenship or, as in this case, his domicile, may take a
long time to make, extending beyond the beginning of the term of the
office. This is amply demonstrated in the companion case (G.R. No.
120265, Agapito A. Aquino v. COMELEC) where the determination of
Aquino's residence was still pending in the COMELEC even after the
elections of May 8, 1995. This is contrary to the summary character
proceedings relating to certificates of candidacy. That is why the law
makes the receipt of certificates of candidacy a ministerial duty of the
COMELEC and its officers. The law is satisfied if candidates state in their
certificates of candidacy that they are eligible for the position which they
seek to fill, leaving the determination of their qualifications to be made
after the election and only in the event they are elected. Only in cases
involving charges of false representations made in certificates of
candidacy is the COMELEC given jurisdiction.
Third is the policy underlying the prohibition against pre-proclamation
cases in elections for President, Vice President, Senators and members
of the House of Representatives. (R.A. No. 7166, § 15) The purpose is to
preserve the prerogatives of the House of Representatives Electoral
Tribunal and the other Tribunals as "sole judges" under the Constitution
of the election, returns and qualifications of members of Congress of the
President and Vice President, as the case may be. 106
To be sure, the authoritativeness of the Romualdez pronouncements as
reiterated in Fermin, led to the amendment through COMELEC
Resolution No. 9523, on 25 September 2012 of its Rule 25. This, the 15
February1993 version of Rule 25, which states that:
Grounds for disqualification. -Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by
existing law or who commits any act declared by law to be grounds for
disqualification may be disqualified from continuing as a candidate. 107
was in the 2012 rendition, drastically changed to:
Grounds. - Any candidate who, in action or protest in which he is a party,
is declared by final decision of a competent court, guilty of, or found by
the Commission to be suffering from any disqualification provided by law
or the Constitution.
A Petition to Disqualify a Candidate invoking grounds for a Petition to
Deny to or Cancel a Certificate of Candidacy or Petition to Declare a
Candidate as a Nuisance Candidate, or a combination thereof, shall be
summarily dismissed.
Clearly, the amendment done in 2012 is an acceptance of the reality of
absence of an authorized proceeding for determining before election the
qualifications of candidate. Such that, as presently required, to disqualify
a candidate there must be a declaration by a final judgment of a
competent court that the candidate sought to be disqualified "is guilty of
or found by the Commission to be suffering from any disqualification
provided by law or the Constitution."
Insofar as the qualification of a candidate is concerned, Rule 25 and Rule
23 are flipsides of one to the other. Both do not allow, are not
authorizations, are not vestment of jurisdiction, for the COMELEC to
determine the qualification of a candidate. The facts of qualification must
beforehand be established in a prior proceeding before an authority
properly vested with jurisdiction. The prior determination of qualification
may be by statute, by executive order or by a judgment of a competent
court or tribunal.
If a candidate cannot be disqualified without a prior finding that he or she
is suffering from a disqualification "provided by law or the Constitution,"
neither can the certificate of candidacy be cancelled or denied due
course on grounds of false representations regarding his or her
qualifications, without a prior authoritative finding that he or she is not
qualified, such prior authority being the necessary measure by which the
falsity of the representation can be found. The only exception that can be
conceded are self-evident facts of unquestioned or unquestionable
veracity and judicial confessions. Such are, anyway, bases equivalent to
prior decisions against which the falsity of representation can be
determined.
The need for a predicate finding or final pronouncement in a proceeding
under Rule 23 that deals with, as in this case, alleged false
representations regarding the candidate's citizenship and residence,
forced the COMELEC to rule essentially that since foundlings  are not
108
mentioned in the enumeration of citizens under the 1935
Constitution,  they then cannot be citizens. As the COMELEC stated in
109
oral arguments, when petitioner admitted that she is a foundling, she said
it all. This borders on bigotry. Oddly, in an effort at tolerance, the
COMELEC, after saying that it cannot rule that herein petitioner
possesses blood relationship with a Filipino citizen when "it is certain that
such relationship is indemonstrable," proceeded to say that "she now has
the burden to present evidence to prove her natural filiation with a Filipino
parent."
The fact is that petitioner's blood relationship with a Filipino citizen is
DEMONSTRABLE.
At the outset, it must be noted that presumptions regarding paternity is
neither unknown nor unaccepted in Philippine Law. The Family Code of
the Philippines has a whole chapter on Paternity and Filiation.  That
110
said, there is more than sufficient evider1ce that petitioner has Filipino
parents and is therefore a natural-born Filipino. Parenthetically, the
burden of proof was on private respondents to show that petitioner is not
a Filipino citizen. The private respondents should have shown that both of
petitioner's parents were aliens. Her admission that she is a foundling did
not shift the burden to her because such status did not exclude the
possibility that her parents were Filipinos, especially as in this case where
there is a high probability, if not certainty, that her parents are Filipinos.
The factual issue is not who the parents of petitioner are, as their
identities are unknown, but whether such parents are Filipinos. Under
Section 4, Rule 128:
Sect. 4. Relevancy, collateral matters - Evidence must have such a
relation to the fact in issue as to induce belief in its existence or no-
existence. Evidence on collateral matters shall not be allowed, except
when it tends in any reasonable degree to establish the probability of
improbability of the fact in issue.
The Solicitor General offered official statistics from the Philippine
Statistics Authority (PSA)  that from 1965 to 1975, the total number of
111
foreigners born in the Philippines was 15,986 while the total number of
Filipinos born in the country was 10,558,278. The statistical probability
that any child born in the Philippines in that decade is natural-born
Filipino was 99.83%. For her part, petitioner presented census statistics
for Iloilo Province for 1960 and 1970, also from the PSA. In 1960, there
were 962,532 Filipinos and 4,734 foreigners in the province; 99.62% of
the population were Filipinos. In 1970, the figures were 1,162,669
Filipinos and 5,304 foreigners, or 99.55%. Also presented were figures
for the child producing ages (15-49). In 1960, there were 230,528 female
Filipinos as against 730 female foreigners or 99.68%. In the same year,
there were 210,349 Filipino males and 886 male aliens, or 99.58%. In
1970, there were 270,299 Filipino females versus 1, 190 female aliens,
or 99.56%. That same year, there were 245,740 Filipino males as against
only 1,165 male aliens or 99.53%. COMELEC did not dispute these
figures. Notably, Commissioner Arthur Lim admitted, during the oral
arguments, that at the time petitioner was found in 1968, the majority of
the population in Iloilo was Filipino.
112
Other circumstantial evidence of the nationality of petitioner's parents are
the fact that she was abandoned as an infant in a Roman Catholic
Church in Iloilo City.  She also has typical Filipino features: height, flat
1âwphi1
nasal bridge, straight black hair, almond shaped eyes and an oval face.
There is a disputable presumption that things have happened according
to the ordinary course of nature and the ordinary habits of life.  All of the
113
foregoing evidence, that a person with typical Filipino features is
abandoned in Catholic Church in a municipality where the population of
the Philippines is overwhelmingly Filipinos such that there would be more
than a 99% chance that a child born in the province would be a Filipino,
would indicate more than ample probability if not statistical certainty, that
petitioner's parents are Filipinos. That probability and the evidence on
which it is based are admissible under Rule 128, Section 4 of the Revised
Rules on Evidence.
To assume otherwise is to accept the absurd, if not the virtually
impossible, as the norm. In the words of the Solicitor General:
Second. It is contrary to common sense because foreigners do not come
to the Philippines so they can get pregnant and leave their newborn
babies behind. We do not face a situation where the probability is such
that every foundling would have a 50% chance of being a Filipino and a
50% chance of being a foreigner. We need to frame our questions
properly. What are the chances that the parents of anyone born in the
Philippines would be foreigners? Almost zero. What are the chances that
the parents of anyone born in the Philippines would be Filipinos? 99.9%.
According to the Philippine Statistics Authority, from 2010 to 2014, on a
yearly average, there were 1,766,046 children born in the Philippines to
Filipino parents, as opposed to 1,301 children in the Philippines of foreign
parents. Thus, for that sample period, the ratio of non-Filipino children to
natural born Filipino children is 1:1357. This means that the statistical
probability that any child born in the Philippines would be a natural born
Filipino is 99.93%.
From 1965 to 1975, the total number of foreigners born in the Philippines
is 15,986 while the total number of Filipinos born in the Philippines is
15,558,278. For this period, the ratio of non-Filipino children is 1:661.
This means that the statistical probability that any child born in the
Philippines on that decade would be a natural born Filipino is 99.83%.
We can invite statisticians and social anthropologists to crunch the
numbers for us, but I am confident that the statistical probability that a
child born in the Philippines would be a natural born Filipino will not be
affected by whether or not the parents are known. If at all, the likelihood
that a foundling would have a Filipino parent might even be higher than
99.9%. Filipinos abandon their children out of poverty or perhaps, shame.
We do not imagine foreigners abandoning their children here in the
Philippines thinking those infants would have better economic
opportunities or believing that this country is a tropical paradise suitable
for raising abandoned children. I certainly doubt whether a foreign couple
has ever considered their child excess baggage that is best left behind.
As pointed out by petitioner as well as the Solicitor General, the
deliberations of the 1934 Constitutional Convention show that the framers
intended foundlings to be covered by the enumeration. The following
exchange is recorded:
Sr. Rafols: For an amendment. I propose that after subsection 2, the
following is inserted: "The natural children of a foreign father and a
Filipino mother not recognized by the father.
xxxx
President:
[We] would like to request a clarification from the proponent of the
amendment. The gentleman refers to natural children or to any kind of
illegitimate children?

To deny full Filipino citizenship to all foundlings and render them Sr. Rafols:
stateless just because there may be a theoretical chance that one among To all kinds of illegitimate children. It also includes natural children of
the thousands of these foundlings might be the child of not just one, but unknown parentage, natural or illegitimate children of unknown parents.
two, foreigners is downright discriminatory, irrational, and unjust. It just
doesn't make any sense. Given the statistical certainty - 99.9% - that any
Sr. Montinola:
child born in the Philippines would be a natural born citizen, a decision
For clarification. The gentleman said "of unknown parents." Current
denying foundlings such status is effectively a denial of their birthright.
codes consider them Filipino, that is, I refer to the Spanish Code wherein
There is no reason why this Honorable Court should use an improbable
all children of unknown parentage born in Spanish territory are
hypothetical to sacrifice the fundamental political rights of an entire class
considered Spaniards, because the presumption is that a child of
of human beings. Your Honor, constitutional interpretation and the use of
unknown parentage is the son of a Spaniard. This may be applied in the
common sense are not separate disciplines.
Philippines in that a child of unknown parentage born in the Philippines is
deemed to be Filipino, and there is no need ...
As a matter of law, foundlings are as a class, natural-born citizens. While
the 1935 Constitution's enumeration is silent as to foundlings, there is no
Sr. Rafols:
restrictive language which would definitely exclude foundlings either.
There is a need, because we are relating the conditions that are
Because of silence and ambiguity in the enumeration with respect to
[required] to be Filipino.
foundlings, there is a need to examine the intent of the framers.
In Nitafan v. Commissioner of Internal Revenue,  this Court held that:
114

Sr. Montinola:
But that is the interpretation of the law, therefore, there is no [more] need
The ascertainment of that intent is but in keeping with the
for amendment.
fundamental principle of constitutional construction that the intent
of the framers of the organic law and of the people adopting it
should be given effect. The primary task in constitutional Sr. Rafols:
construction is to ascertain and thereafter assure the realization The amendment should read thus:
of the purpose of the framers and of the people in the adoption of "Natural or illegitimate of a foreign father and a Filipino mother
the Constitution. It may also be safely assumed that the people in recognized by one, or the children of unknown parentage."
ratifying the Constitution were guided mainly by the explanation
offered by the framers. 115
Sr. Briones:
The amendment [should] mean children born in the Philippines of
unknown parentage.
Sr. Rafols:
The son of a Filipina to a Foreigner, although this [person] does not
recognize the child, is not unknown.
President:
Does the gentleman accept the amendment or not?
Sr. Rafols:
I do not accept the amendment because the amendment would exclude
the children of a Filipina with a foreigner who does not recognize the
child. Their parentage is not unknown and I think those of overseas
Filipino mother and father [whom the latter] does not recognize, should
also be considered as Filipinos.
President:
The question in order is the amendment to the amendment from the
Gentleman from Cebu, Mr. Briones.
Sr. Busion:
Mr. President, don't you think it would be better to leave this matter in the
hands of the Legislature?
Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in
between, that the constitution need [not] refer to them. By international
law the principle that children or people born in a country of unknown
parents are citizens in this nation is recognized, and it is not necessary to
include a provision on the subject exhaustively. 116
Though the Rafols amendment was not carried out, it was not because
there was any objection to the notion that persons of "unknown
parentage" are not citizens but only because their number was not
enough to merit specific mention. Such was the account,  cited by
117
petitioner, of delegate and constitution law author Jose Aruego who said:
During the debates on this provision, Delegate Rafols presented
an amendment to include as Filipino citizens the illegitimate
children with a foreign father of a mother who was a citizen of the
Philippines, and also foundlings; but this amendment was
defeated primarily because the Convention believed that the
cases, being too few to warrant the inclusion of a provision in the
Constitution to apply to them, should be governed by statutory
legislation. Moreover, it was believed that the rules of
international law were already clear to the effect that illegitimate
children followed the citizenship of the mother, and
that foundlings followed the nationality of the place where they
were found, thereby making unnecessary the inclusion in the
Constitution of the proposed amendment.
This explanation was likewise the position of the Solicitor General during
the 16 February 2016 Oral Arguments:
We all know that the Rafols proposal was rejected. But note that what
was declined was the proposal for a textual and explicit recognition of
foundlings as Filipinos. And so, the way to explain the constitutional
silence is by saying that it was the view of Montinola and Roxas which
prevailed that there is no more need to expressly declare foundlings as
Filipinos.
Obviously, it doesn't matter whether Montinola's or Roxas' views were
legally correct. Framers of a constitution can constitutionalize rules based
on assumptions that are imperfect or even wrong. They can even
overturn existing rules. This is basic. What matters here is that Montinola
and Roxas were able to convince their colleagues in the convention that
there is no more need to expressly declare foundlings as Filipinos
because they are already impliedly so recognized.
In other words, the constitutional silence is fully explained in terms of
linguistic efficiency and the avoidance of redundancy. The policy is clear:
it is to recognize foundlings, as a class, as Filipinos under Art. IV, Section
1 (3) of the 1935 Constitution. This inclusive policy is carried over into the
1973 and 1987 Constitution. It is appropriate to invoke a famous scholar
as he was paraphrased by Chief Justice Fernando: the constitution is not
silently silent, it is silently vocal. 
118
The Solicitor General makes the further point that the framers "worked to
create a just and humane society," that "they were reasonable patriots
and that it would be unfair to impute upon them a discriminatory intent
against foundlings." He exhorts that, given the grave implications of the
argument that foundlings are not natural-born Filipinos, the Court must
search the records of the 1935, 1973 and 1987 Constitutions "for an
express intention to deny foundlings the status of Filipinos. The burden is
on those who wish to use the constitution to discriminate against
foundlings to show that the constitution really intended to take this path to
the dark side and inflict this across the board marginalization."
We find no such intent or language permitting discrimination against
foundlings. On the contrary, all three Constitutions guarantee the basic
right to equal protection of the laws. All exhort the State to render social
justice. Of special consideration are several provisions in the present
charter: Article II, Section 11 which provides that the "State values the
dignity of every human person and guarantees full respect for human
rights," Article XIII, Section 1 which mandates Congress to "give highest
priority to the enactment of measures that protect and enhance the right
of all the people to human dignity, reduce social, economic, and political
inequalities x x x" and Article XV, Section 3 which requires the State to
defend the "right of children to assistance, including proper care and
nutrition, and special protection from all forms of neglect, abuse, cruelty,
exploitation, and other conditions prejudicial to their development."
Certainly, these provisions contradict an intent to discriminate against
foundlings on account of their unfortunate status.
Domestic laws on adoption also support the principle that foundlings are
Filipinos. These laws do not provide that adoption confers citizenship
upon the adoptee. Rather, the adoptee must be a Filipino in the first place
to be adopted. The most basic of such laws is Article 15 of the Civil Code
which provides that "[l]aws relating to family rights, duties, status,
conditions, legal capacity of persons are binding on citizens of the
Philippines even though living abroad." Adoption deals with status, and a
Philippine adoption court will have jurisdiction only if the adoptee is a
Filipino. In Ellis and Ellis v. Republic,  a child left by an unidentified
119
mother was sought to be adopted by aliens. This Court said:
In this connection, it should be noted that this is a proceedings in
rem, which no court may entertain unless it has jurisdiction, not only over
the subject matter of the case and over the parties, but also over the
res, which is the personal status of Baby Rose as well as that of
petitioners herein. Our Civil Code (Art. 15) adheres to the theory that
jurisdiction over the status of a natural person is determined by the
latter's nationality. Pursuant to this theory, we have jurisdiction over the
status of Baby Rose, she being a citizen of the Philippines, but not over
the status of the petitioners, who are foreigners. (Underlining supplied)
120
Recent legislation is more direct. R.A. No. 8043 entitled "An Act
Establishing the Rules to Govern the Inter-Country Adoption of Filipino
Children and For Other Purposes" (otherwise known as the "Inter-
Country Adoption Act of 1995"), R.A. No. 8552, entitled "An Act
Establishing the Rules and Policies on the Adoption of Filipino Children
and For Other Purposes" (otherwise known as the Domestic Adoption Act
of 1998) and this Court's A.M. No. 02-6-02-SC or the "Rule on Adoption,"
all expressly refer to "Filipino children" and include foundlings as among
Filipino children who may be adopted.
It has been argued that the process to determine that the child is a
foundling leading to the issuance of a foundling certificate under these
laws and the issuance of said certificate are acts to acquire or perfect
Philippine citizenship which make the foundling a naturalized Filipino at
best. This is erroneous. Under Article IV, Section 2 "Natural-born citizens
are those who are citizens of the Philippines from birth without having to
perform any act to acquire or perfect their Philippine citizenship." In the
first place, "having to perform an act" means that the act must be
personally done by the citizen. In this instance, the determination of
foundling status is done not by the child but by the
authorities.  Secondly, the object of the process is the determination of
121
the whereabouts of the parents, not the citizenship of the child. Lastly, the
process is certainly not analogous to naturalization proceedings to
acquire Philippine citizenship, or the election of such citizenship by one
born of an alien father and a Filipino mother under the 1935 Constitution,
which is an act to perfect it.
In this instance, such issue is moot because there is no dispute that
petitioner is a foundling, as evidenced by a Foundling Certificate issued in
her favor.  The Decree of Adoption issued on 13 May 1974, which
122
approved petitioner's adoption by Jesusa Sonora Poe and Ronald Allan
Kelley Poe, expressly refers to Emiliano and his wife, Rosario Militar, as
her "foundling parents," hence effectively affirming petitioner's status as a
foundling. 123
Foundlings are likewise citizens under international law. Under the 1987
Constitution, an international law can become part of the sphere of
domestic law either by transformation or incorporation. The
transformation method requires that an international law be transformed
into a domestic law through a constitutional mechanism such as local
legislation.  On the other hand, generally accepted principles of
124
international law, by virtue of the incorporation clause of the Constitution,
form part of the laws of the land even if they do not derive from treaty
obligations. Generally accepted principles of international law include
international custom as evidence of a general practice accepted as law,
and general principles of law recognized by civilized
nations.  International customary rules are accepted as binding as a
125
result from the combination of two elements: the established, widespread, In 1986, the country also ratified the 1966 International Covenant on Civil
and consistent practice on the part of States; and a psychological and Political Rights (ICCPR). Article 24 thereof provide for the right
element known as the opinionjuris sive necessitates (opinion as to law or of every child "to acquire a nationality:"
necessity). Implicit in the latter element is a belief that the practice in
question is rendered obligatory by the existence of a rule of law requiring Article 24
it.  "General principles of law recognized by civilized nations" are
126

principles "established by a process of reasoning" or judicial logic, based 1. Every child shall have, without any discrimination as to race, colour,
on principles which are "basic to legal systems generally,"  such as
127
sex, language, religion, national or social origin, property or birth, the
"general principles of equity, i.e., the general principles of fairness and right, to such measures of protection as are required by his status as a
justice," and the "general principle against discrimination" which is minor, on the part of his family, society and the State.
embodied in the "Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural Rights, the
2. Every child shall be registered immediately after birth and shall have a
International Convention on the Elimination of All Forms of Racial
name.
Discrimination, the Convention Against Discrimination in Education, the
Convention (No. 111) Concerning Discrimination in Respect of
Employment and Occupation."  These are the same core principles
128 3. Every child has the right to acquire a nationality.
which underlie the Philippine Constitution itself, as embodied in the due
process and equal protection clauses of the Bill of Rights. 129 The common thread of the UDHR, UNCRC and ICCPR is to obligate the
Philippines to grant nationality from birth and ensure that no child is
Universal Declaration of Human Rights ("UDHR") has been interpreted by stateless. This grant of nationality must be at the time of birth, and it
this Court as part of the generally accepted principles of international law cannot be accomplished by the application of our present naturalization
and binding on the State.  Article 15 thereof states:
130 laws, Commonwealth Act No. 473, as amended, and R.A. No. 9139, both
of which require the applicant to be at least eighteen (18) years old.
1. Everyone has the right to a nationality.
The principles found in two conventions, while yet unratified by the
Philippines, are generally accepted principles of international law. The
2. No one shall be arbitrarily deprived of his nationality nor denied
first is Article 14 of the 1930 Hague Convention on Certain Questions
the right to change his nationality.
Relating to the Conflict of Nationality Laws under which a foundling is
presumed to have the "nationality of the country of birth," to wit:
The Philippines has also ratified the UN Convention on the Rights of the
Child (UNCRC). Article 7 of the UNCRC imposes the following obligations
Article 14
on our country:
A child whose parents are both unknown shall have the nationality of the
Article 7
country of birth. If the child's parentage is established, its nationality shall
be determined by the rules applicable in cases where the parentage is
1. The child shall be registered immediately after birth and shall have the known.
right from birth to a name, the right to acquire a nationality and as far as
possible, the right to know and be cared for by his or her parents.
A foundling is, until the contrary is proved, presumed to have been born
on the territory of the State in which it was found. (Underlining supplied)
2. States Parties shall ensure the implementation of these rights in
accordance with their national law and their obligations under the relevant
The second is the principle that a foundling is presumed born of
international instruments in this field, in particular where the child would
citizens of the country where he is found, contained in Article 2 of the
otherwise be stateless.
1961 United Nations Convention on the Reduction of Statelessness:
 Article 2
A foundling found in the territory of a Contracting State shall, in the
absence of proof to the contrary, be considered to have been born within
the territory of parents possessing the nationality of that State.
That the Philippines is not a party to the 1930 Hague Convention nor to
the 1961 Convention on the Reduction of Statelessness does not mean
that their principles are not binding. While the Philippines is not a party to
the 1930 Hague Convention, it is a signatory to the Universal Declaration
on Human Rights, Article 15(1) ofwhich effectively affirms Article 14 of
131
the 1930 Hague Convention. Article 2 of the 1961 "United Nations
Convention on the Reduction of Statelessness" merely "gives effect" to
Article 15(1) of the UDHR.  In Razon v. Tagitis,   this Court noted that
132 133
the Philippines had not signed or ratified the "International Convention for
the Protection of All Persons from Enforced Disappearance." Yet, we
ruled that the proscription against enforced disappearances in the said
convention was nonetheless binding as a "generally accepted principle of
international law." Razon v. Tagitis is likewise notable for declaring the
ban as a generally accepted principle of international law although the
convention had been ratified by only sixteen states and had not even
come into force and which needed the ratification of a minimum of twenty
states. Additionally, as petitioner points out, the Court was content with
the practice of international and regional state organs, regional state
practice in Latin America, and State Practice in the United States.
Another case where the number of ratifying countries was not
determinative is Mijares v. Ranada,   where only four countries had
134
"either ratified or acceded to"  the 1966 "Convention on the Recognition
135
and Enforcement of Foreign Judgments in Civil and Commercial Matters"
when the case was decided in 2005. The Court also pointed out that that
nine member countries of the European Common Market had acceded to
the Judgments Convention. The Court also cited U.S. laws and
jurisprudence on recognition of foreign judgments. In all, only the
practices of fourteen countries were considered and yet, there was
pronouncement that recognition of foreign judgments was widespread
practice.
Our approach in Razon and Mijares effectively takes into account the fact
that "generally accepted principles of international law" are based not
only on international custom, but also on "general principles of law
recognized by civilized nations," as the phrase is understood in Article
38.1 paragraph (c) of the ICJ Statute. Justice, fairness, equity and the
policy against discrimination, which are fundamental principles underlying
the Bill of Rights and which are "basic to legal systems
generally,"  support the notion that the right against enforced
136
disappearances and the recognition of foreign judgments, were correctly
considered as "generally accepted principles of international law" under
the incorporation clause.
Petitioner's evidence  shows that at least sixty countries in Asia, North
137
and South America, and Europe have passed legislation recognizing
foundlings as its citizen. Forty-two (42) of those countries follow the jus
sanguinis regime. Of the sixty, only thirty-three (33) are parties to the
1961 Convention on Statelessness; twenty-six (26) are not signatories to
the Convention. Also, the Chief Justice, at the 2 February 2016 Oral
Arguments pointed out that in 166 out of 189 countries surveyed (or
87.83%), foundlings are recognized as citizens. These circumstances,
including the practice of jus sanguinis countries, show that it is a
generally accepted principle of international law to presume foundlings as
having been born of nationals of the country in which the foundling is
found.
Current legislation reveals the adherence of the Philippines to this
generally accepted principle of international law. In particular, R.A. No.
8552, R.A. No. 8042 and this Court's Rules on Adoption, expressly refer
to "Filipino children." In all of them, foundlings are among the Filipino
children who could be adopted. Likewise, it has been pointed that the
DFA issues passports to foundlings. Passports are by law, issued only to
citizens. This shows that even the executive department, acting through
the DFA, considers foundlings as Philippine citizens.
Adopting these legal principles from the 1930 Hague Convention and the
1961 Convention on Statelessness is rational and reasonable and
consistent with the jus sanguinis regime in our Constitution. The
presumption of natural-born citizenship of foundlings stems from the
presumption that their parents are nationals of the Philippines. As the
empirical data provided by the PSA show, that presumption is at more
than 99% and is a virtual certainty.
In sum, all of the international law conventions and instruments on the
matter of nationality of foundlings were designed to address the plight of
a defenseless class which suffers from a misfortune not of their own
making. We cannot be restrictive as to their application if we are a
country which calls itself civilized and a member of the community of
nations. The Solicitor General's warning in his opening statement is
relevant:
.... the total effect of those documents is to signify to this Honorable Court
that those treaties and conventions were drafted because the world
community is concerned that the situation of foundlings renders them
legally invisible. It would be tragically ironic if this Honorable Court ended
up using the international instruments which seek to protect and uplift
foundlings a tool to deny them political status or to accord them second-
class citizenship.138
The COMELEC also ruled  that petitioner's repatriation in July 2006
139
under the provisions of R.A. No. 9225 did not result in the reacquisition of
natural-born citizenship. The COMELEC reasoned that since the
applicant must perform an act, what is reacquired is not "natural-born"
citizenship but only plain "Philippine citizenship."
The COMELEC's rule arrogantly disregards consistent jurisprudence on
the matter of repatriation statutes in general and of R.A. No. 9225 in
particular.
In the seminal case of Bengson Ill v. HRET,   repatriation was explained
140
as follows:
Moreover, repatriation results in the recovery of the original nationality.
This means that a naturalized Filipino who lost his citizenship will be
restored to his prior status as a naturalized Filipino citizen. On the other
hand, if he was originally a natural-born citizen before he lost his
Philippine citizenship, he will be restored to his former status as a natural-
born Filipino.
R.A. No. 9225 is a repatriation statute and has been described as such in
several cases. They include Sobejana-Condon v. COMELEC  where we 141
described it as an "abbreviated repatriation process that restores one's
Filipino citizenship x x x." Also included is Parreno v. Commission on
Audit,  which cited Tabasa v. Court of Appeals, where we said that
142 143
"[t]he repatriation of the former Filipino will allow him to recover his
natural-born citizenship. Parreno v. Commission on Audit  is categorical
144
that "if petitioner reacquires his Filipino citizenship (under R.A. No. 9225),
he will ... recover his natural-born citizenship."
The COMELEC construed the phrase "from birth" in the definition of
natural citizens as implying "that natural-born citizenship must begin at
birth and remain uninterrupted and continuous from birth." R.A. No. 9225
was obviously passed in line with Congress' sole prerogative to
determine how citizenship may be lost or reacquired. Congress saw it fit
to decree that natural-born citizenship may be reacquired even if it had
been once lost. It is not for the COMELEC to disagree with the Congress'
determination.
More importantly, COMELEC's position that natural-born status must be
continuous was already rejected in Bengson III v. HRET  where the
145
phrase "from birth" was clarified to mean at the time of birth: "A person
who at the time of his birth, is a citizen of a particular country, is a natural-
born citizen thereof." Neither is "repatriation" an act to "acquire or perfect"
one's citizenship. In Bengson III v. HRET, this Court pointed out that
there are only two types of citizens under the 1987 Constitution: natural-
born citizen and naturalized, and that there is no third category for
repatriated citizens:
It is apparent from the enumeration of who are citizens under the present
Constitution that there are only two classes of citizens: (1) those who are
natural-born and (2) those who are naturalized in accordance with law. A
citizen who is not a naturalized Filipino, ie., did not have to undergo the
process of naturalization to obtain Philippine citizenship, necessarily is a
natural-born Filipino. Noteworthy is the absence in said enumeration of a
separate category for persons who, after losing Philippine citizenship,
subsequently reacquire it. The reason therefor is clear: as to such
persons, they would either be natural-born or naturalized depending on
the reasons for the loss of their citizenship and the mode prescribed by
the applicable law for the reacquisition thereof. As respondent Cruz was
not required by law to go through naturalization proceedings in order to
reacquire his citizenship, he is perforce a natural-born Filipino. As such,
he possessed all the necessary qualifications to be elected as member of
the House of Representatives. 146
The COMELEC cannot reverse a judicial precedent. That is reserved to
this Court. And while we may always revisit a doctrine, a new rule
reversing standing doctrine cannot be retroactively applied. In Morales v.
Court of Appeals and Jejomar Erwin S. Binay, Jr.,  where we decreed
147
reversed the condonation doctrine, we cautioned that it "should be
prospective in application for the reason that judicial decisions applying or
interpreting the laws of the Constitution, until reversed, shall form part of
the legal system of the Philippines." This Court also said that "while the
future may ultimately uncover a doctrine's error, it should be, as a general
rule, recognized as good law prior to its abandonment. Consequently, the
people's reliance thereupon should be respected." 148
Lastly, it was repeatedly pointed out during the oral arguments that
petitioner committed a falsehood when she put in the spaces for "born to"
in her application for repatriation under R.A. No. 9225 the names of her
adoptive parents, and this misled the BI to presume that she was a
natural-born Filipino. It has been contended that the data required were
the names of her biological parents which are precisely unknown.
This position disregards one important fact - petitioner was legally
adopted. One of the effects of adoption is "to sever all legal ties between
the biological parents and the adoptee, except when the biological parent
is the spouse of the adoptee."  Under R.A. No. 8552, petitioner was also
149
entitled to an amended birth certificate "attesting to the fact that the
adoptee is the child of the adopter(s)" and which certificate "shall not bear
any notation that it is an amended issue."  That law also requires that
150
"[a]ll records, books, and papers relating to the adoption cases in the files
of the court, the Department [of Social Welfare and Development], or any
other agency or institution participating in the adoption proceedings shall
be kept strictly confidential."  The law therefore allows petitioner to state
151
that her adoptive parents were her birth parents as that was what would
be stated in her birth certificate anyway. And given the policy of strict
confidentiality of adoption records, petitioner was not obligated to
disclose that she was an adoptee.
Clearly, to avoid a direct ruling on the qualifications of petitioner, which it
cannot make in the same case for cancellation of COC, it resorted to
opinionatedness which is, moreover, erroneous. The whole process
undertaken by COMELEC is wrapped in grave abuse of discretion.
On Residence
The tainted process was repeated in disposing of the issue of whether or
not petitioner committed false material representation when she stated in
her COC that she has before and until 9 May 2016 been a resident of the
Philippines for ten (10) years and eleven (11) months.
Petitioner's claim that she will have been a resident for ten (10) years and
eleven (11) months on the day before the 2016 elections, is true.
The Constitution requires presidential candidates to have ten (10) years'
residence in the Philippines before the day of the elections. Since the
forthcoming elections will be held on 9 May 2016, petitioner must have
been a resident of the Philippines prior to 9 May 2016 for ten (10) years.
In answer to the requested information of "Period of Residence in the
Philippines up to the day before May 09, 2016," she put in "10 years 11
months" which according to her pleadings in these cases corresponds to
a beginning date of 25 May 2005 when she returned for good from the
U.S.
When petitioner immigrated to the U.S. in 1991, she lost her original
domicile, which is the Philippines. There are three requisites to acquire a
new domicile: 1. Residence or bodily presence in a new locality; 2. an
intention to remain there; and 3. an intention to abandon the old
domicile.  To successfully effect a change of domicile, one must
152
demonstrate an actual removal or an actual change of domicile; a bona
fide intention of abandoning the former place of residence and
establishing a new one and definite acts which correspond with the
purpose. In other words, there must basically be animus
manendi coupled with animus non revertendi. The purpose to remain in
or at the domicile of choice must be for an indefinite period of time; the
change of residence must be voluntary; and the residence at the place
chosen for the new domicile must be actual. 153
Petitioner presented voluminous evidence showing that she and her
family abandoned their U.S. domicile and relocated to the Philippines for
good. These evidence include petitioner's former U.S. passport showing
her arrival on 24 May 2005 and her return to the Philippines every time
she travelled abroad; e-mail correspondences starting in March 2005 to
September 2006 with a freight company to arrange for the shipment of
their household items weighing about 28,000 pounds to the Philippines;
e-mail with the Philippine Bureau of Animal Industry inquiring how to ship
their dog to the Philippines; school records of her children showing
enrollment in Philippine schools starting June 2005 and for succeeding
years; tax identification card for petitioner issued on July 2005; titles for
condominium and parking slot issued in February 2006 and their
corresponding tax declarations issued in April 2006; receipts dated 23
February 2005 from the Salvation Army in the U.S. acknowledging
donation of items from petitioner's family; March 2006 e-mail to the U.S.
Postal Service confirming request for change of address; final statement
from the First American Title Insurance Company showing sale of their
U.S. home on 27 April 2006; 12 July 2011 filled-up questionnaire
submitted to the U.S. Embassy where petitioner indicated that she had
been a Philippine resident since May 2005; affidavit from Jesusa Sonora
Poe (attesting to the return of petitioner on 24 May 2005 and that she and
her family stayed with affiant until the condominium was purchased); and
Affidavit from petitioner's husband (confirming that the spouses jointly
decided to relocate to the Philippines in 2005 and that he stayed behind
in the U.S. only to finish some work and to sell the family home).
The foregoing evidence were undisputed and the facts were even listed
by the COMELEC, particularly in its Resolution in the Tatad, Contreras
and Valdez cases.
However, the COMELEC refused to consider that petitioner's domicile
had been timely changed as of 24 May 2005. At the oral arguments,
COMELEC Commissioner Arthur Lim conceded the presence of the first
two requisites, namely, physical presence and animus manendi, but
maintained there was no animus non-revertendi.  The COMELEC
154
disregarded the import of all the evidence presented by petitioner on the
basis of the position that the earliest date that petitioner could have
started residence in the Philippines was in July 2006 when her
application under R.A. No. 9225 was approved by the BI. In this regard,
COMELEC relied on Coquilla v. COMELEC,  Japzon v.
155
COMELEC  and Caballero v. COMELEC.   During the oral arguments,
156 157
the private respondents also added Reyes v. COMELEC.  Respondents 158
contend that these cases decree that the stay of an alien former Filipino
cannot be counted until he/she obtains a permanent resident visa or
reacquires Philippine citizenship, a visa-free entry under
a balikbayan stamp being insufficient. Since petitioner was still an
American (without any resident visa) until her reacquisition of citizenship
under R.A. No. 9225, her stay from 24 May 2005 to 7 July 2006 cannot
be counted.
But as the petitioner pointed out, the facts in these four cases are very
different from her situation. In Coquilla v. COMELEC,  the only evidence
159
presented was a community tax certificate secured by the candidate and
his declaration that he would be running in the elections. Japzon v.
COMELEC  did not involve a candidate who wanted to count residence
160
prior to his reacquisition of Philippine citizenship. With the Court
decreeing that residence is distinct from citizenship, the issue there was
whether the candidate's acts after reacquisition sufficed to establish
residence. In Caballero v. COMELEC,   the candidate admitted that his
161
place of work was abroad and that he only visited during his frequent
vacations. In Reyes v. COMELEC,  the candidate was found to be an
162
American citizen who had not even reacquired Philippine citizenship
under R.A. No. 9225 or had renounced her U.S. citizenship. She was
disqualified on the citizenship issue. On residence, the only proof she
offered was a seven-month stint as provincial officer. The COMELEC,
quoted with approval by this Court, said that "such fact alone is not
sufficient to prove her one-year residency."
It is obvious that because of the sparse evidence on residence in the four
cases cited by the respondents, the Court had no choice but to hold that
residence could be counted only from acquisition of a permanent resident
visa or from reacquisition of Philippine citizenship. In contrast, the
evidence of petitioner is overwhelming and taken together leads to no
other conclusion that she decided to permanently abandon her U.S.
residence (selling the house, taking the children from U.S. schools,
getting quotes from the freight company, notifying the U.S. Post Office of
the abandonment of their address in the U.S., donating excess items to
the Salvation Army, her husband resigning from U.S. employment right
after selling the U.S. house) and permanently relocate to the Philippines
and actually re-established her residence here on 24 May 2005 (securing
T.I.N, enrolling her children in Philippine schools, buying property here,
constructing a residence here, returning to the Philippines after all trips
abroad, her husband getting employed here). Indeed, coupled with her
eventual application to reacquire Philippine citizenship and her family's
actual continuous stay in the Philippines over the years, it is clear that
when petitioner returned on 24 May 2005 it was for good.
In this connection, the COMELEC also took it against petitioner that she
had entered the Philippines visa-free as a balikbayan. A closer look at
R.A. No. 6768 as amended, otherwise known as the "An Act Instituting a
Balikbayan Program," shows that there is no overriding intent to
treat balikbayans as temporary visitors who must leave after one year.
Included in the law is a former Filipino who has been naturalized abroad
and "comes or returns to the Philippines."   The law institutes
163
a balikbayan program "providing the opportunity to avail of the necessary
training to enable the balikbayan to become economically self-reliant
members of society upon their return to the country" in line with the
164
government's "reintegration program."  Obviously, balikbayans are not
165
ordinary transients.
Given the law's express policy to facilitate the return of a balikbayan and
help him reintegrate into society, it would be an unduly harsh conclusion
to say in absolute terms that the balikbayan must leave after one year.
That visa-free period is obviously granted him to allow him to re-establish
his life and reintegrate himself into the community before he attends to
the necessary formal and legal requirements of repatriation. And that is
exactly what petitioner did - she reestablished life here by enrolling her
children and buying property while awaiting the return of her husband and
then applying for repatriation shortly thereafter.
No case similar to petitioner's, where the former Filipino's evidence of
change in domicile is extensive and overwhelming, has as yet been
decided by the Court. Petitioner's evidence of residence is
unprecedented. There is no judicial precedent that comes close to the
facts of residence of petitioner. There is no indication in Coquilla v.
COMELEC,  and the other cases cited by the respondents that the Court
166
intended to have its rulings there apply to a situation where the facts are
different. Surely, the issue of residence has been decided particularly on
the facts-of-the case basis.
To avoid the logical conclusion pointed out by the evidence of residence
of petitioner, the COMELEC ruled that petitioner's claim of residence of
ten (10) years and eleven (11) months by 9 May 2016 in her 2015 COC
was false because she put six ( 6) years and six ( 6) months as "period of
residence before May 13, 2013" in her 2012 COC for Senator. Thus,
according to the COMELEC, she started being a Philippine resident only
in November 2006. In doing so, the COMELEC automatically assumed as
true the statement in the 2012 COC and the 2015 COC as false.
As explained by petitioner in her verified pleadings, she misunderstood
the date required in the 2013 COC as the period of residence as of the
day she submitted that COC in 2012. She said that she reckoned
residency from April-May 2006 which was the period when the U.S.
house was sold and her husband returned to the Philippines. In that
regard, she was advised by her lawyers in 2015 that residence could be
counted from 25 May 2005.
Petitioner's explanation that she misunderstood the query in 2012 (period
of residence before 13 May 2013) as inquiring about residence as of the
time she submitted the COC, is bolstered by the change which the
COMELEC itself introduced in the 2015 COC which is now "period of
residence in the Philippines up to the day before May 09, 2016." The
COMELEC would not have revised the query if it did not acknowledge
that the first version was vague.
That petitioner could have reckoned residence from a date earlier than
the sale of her U.S. house and the return of her husband is plausible
given the evidence that she had returned a year before. Such evidence,
to repeat, would include her passport and the school records of her
children.
It was grave abuse of discretion for the COMELEC to treat the 2012 COC
as a binding and conclusive admission against petitioner. It could be
given in evidence against her, yes, but it was by no means conclusive.
There is precedent after all where a candidate's mistake as to period of
residence made in a COC was overcome by evidence. In Romualdez-
Marcos v. COMELEC,  the candidate mistakenly put seven (7) months
167
as her period of residence where the required period was a minimum of
one year. We said that "[i]t is the fact of residence, not a statement in a
certificate of candidacy which ought to be decisive in determining
whether or not an individual has satisfied the constitutions residency
qualification requirement." The COMELEC ought to have looked at the
evidence presented and see if petitioner was telling the truth that she was
in the Philippines from 24 May 2005. Had the COMELEC done its duty, it
would have seen that the 2012 COC and the 2015 COC both correctly
stated the pertinent period of residency.
The COMELEC, by its own admission, disregarded the evidence that
petitioner actually and physically returned here on 24 May 2005 not
because it was false, but only because COMELEC took the position that
domicile could be established only from petitioner's repatriation under
R.A. No. 9225 in July 2006. However, it does not take away the fact that
in reality, petitioner had returned from the U.S. and was here to stay
permanently, on 24 May 2005. When she claimed to have been a
resident for ten (10) years and eleven (11) months, she could do so in
good faith.
For another, it could not be said that petitioner was attempting to hide
anything. As already stated, a petition for quo warranto had been filed
against her with the SET as early as August 2015. The event from which
the COMELEC pegged the commencement of residence, petitioner's
repatriation in July 2006 under R.A. No. 9225, was an established fact to
repeat, for purposes of her senatorial candidacy.
Notably, on the statement of residence of six (6) years and six (6) months
in the 2012 COC, petitioner recounted that this was first brought up in the
media on 2 June 2015 by Rep. Tobias Tiangco of the United Nationalist
Alliance. Petitioner appears to have answered the issue immediately,
also in the press. Respondents have not disputed petitioner's evidence
on this point. From that time therefore when Rep. Tiangco discussed it in
the media, the stated period of residence in the 2012 COC and the
circumstances that surrounded the statement were already matters of
public record and were not hidden.
Petitioner likewise proved that the 2012 COC was also brought up in the
SET petition for quo warranto. Her Verified Answer, which was filed on 1
September 2015, admitted that she made a mistake in the 2012 COC
when she put in six ( 6) years and six ( 6) months as she misunderstood
the question and could have truthfully indicated a longer period. Her
answer in the SET case was a matter of public record. Therefore, when
petitioner accomplished her COC for President on 15 October 2015, she
could not be said to have been attempting to hide her erroneous
statement in her 2012 COC for Senator which was expressly mentioned
in her Verified Answer.
The facts now, if not stretched to distortion, do not show or even hint at
an intention to hide the 2012 statement and have it covered by the 2015
representation. Petitioner, moreover, has on her side this Court's
pronouncement that:
Concededly, a candidate's disqualification to run for public office does not
necessarily constitute material misrepresentation which is the sole
ground for denying due course to, and for the cancellation of, a COC.
Further, as already discussed, the candidate's misrepresentation in his
COC must not only refer to a material fact (eligibility and qualifications for
elective office), but should evince a deliberate intent to mislead,
misinform or hide a fact which would otherwise render a candidate
ineligible. It must be made with an intention to deceive the electorate as
to one's qualifications to run for public office.
168
In sum, the COMELEC, with the same posture of infallibilism, virtually
ignored a good number of evidenced dates all of which can
evince animus manendi to the Philippines and animus non revertedi to
the United States of America. The veracity of the events of coming and
staying home was as much as dismissed as inconsequential, the focus
having been fixed at the petitioner's "sworn declaration in her COC for
Senator" which the COMELEC said "amounts to a declaration and
therefore an admission that her residence in the Philippines only
commence sometime in November 2006"; such that "based on this
declaration, [petitioner] fails to meet the residency requirement for
President." This conclusion, as already shown, ignores the standing
jurisprudence that it is the fact of residence, not the statement of the
person that determines residence for purposes of compliance with the
constitutional requirement of residency for election as President. It
ignores the easily researched matter that cases on questions of
residency have been decided favorably for the candidate on the basis of
facts of residence far less in number, weight and substance than that
presented by petitioner.  It ignores, above all else, what we consider as
169
a primary reason why petitioner cannot be bound by her declaration in
her COC for Senator which declaration was not even considered by the
SET as an issue against her eligibility for Senator. When petitioner made
the declaration in her COC for Senator that she has been a resident for a
period of six (6) years and six (6) months counted up to the 13 May 2013
Elections, she naturally had as reference the residency requirements for
election as Senator which was satisfied by her declared years of
residence. It was uncontested during the oral arguments before us that at
the time the declaration for Senator was made, petitioner did not have as
yet any intention to vie for the Presidency in 2016 and that the general
public was never made aware by petitioner, by word or action, that she
would run for President in 2016. Presidential candidacy has a length-of-
residence different from that of a senatorial candidacy. There are facts of
residence other than that which was mentioned in the COC for Senator.
Such other facts of residence have never been proven to be false, and
these, to repeat include:
[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's]
husband however stayed in the USA to finish pending projects and
arrange the sale of their family home.
Meanwhile [petitioner] and her children lived with her mother in San Juan
City. [Petitioner] enrolled Brian in Beacon School in Taguig City in 2005
and Hanna in Assumption College in Makati City in 2005. Anika was
enrolled in Learning Connection in San Juan in 2007, when she was
already old enough to go to school.
In the second half of 2005, [petitioner] and her husband acquired Unit 7F
of One Wilson Place Condominium in San Juan. [Petitioner] and her
family lived in Unit 7F until the construction of their family home in
Corinthian Hills was completed.
Sometime in the second half of 2005, [petitioner's] mother discovered
that her former lawyer who handled [petitioner's] adoption in 1974 failed
to secure from the Office of the Civil Registrar of Iloilo a new Certificate of
Live Birth indicating [petitioner's] new name and stating that her parents
are "Ronald Allan K. Poe" and "Jesusa L. Sonora."
In February 2006, [petitioner] travelled briefly to the US in order to
supervise the disposal of some of the family's remaining household
belongings.  [Petitioner] returned to the Philippines on 11 March 2006.
1a\^/phi1
In late March 2006, [petitioner's] husband informed the United States
Postal Service of the family's abandonment of their address in the US.
The family home in the US was sole on 27 April 2006.
In April 2006, [petitioner's] husband resigned from his work in the US. He
returned to the Philippines on 4 May 2006 and began working for a
Philippine company in July 2006.
In early 2006, [petitioner] and her husband acquired a vacant lot in
Corinthian Hills, where they eventually built their family home. 170
In light of all these, it was arbitrary for the COMELEC to satisfy its
intention to let the case fall under the exclusive ground of false
representation, to consider no other date than that mentioned by
petitioner in her COC for Senator.
All put together, in the matter of the citizenship and residence of
petitioner for her candidacy as President of the Republic, the questioned
Resolutions of the COMELEC in Division and En Banc are, one and all,
deadly diseased with grave abuse of discretion from root to fruits.
WHEREFORE, the petition is GRANTED. The Resolutions, to wit:
1. dated 1 December 2015 rendered through the COMELEC Second
Division, in SPA No. 15-001 (DC), entitled Estrella C. Elamparo,
petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent, stating that:
[T]he Certificate of Candidacy for President of the Republic of the
Philippines in the May 9, 2016 National and Local Elections filed by
respondent Mary Grace Natividad Sonora Poe-Llamanzares is hereby
GRANTED.
2. dated 11 December 2015, rendered through the COMELEC First
Division, in the consolidated cases SPA No. 15-002 (DC)
entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora
Poe-Llamanzares, respondent; SPA No. 15-007 (DC) entitled Antonio P.
Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D.
Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent; stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES, to GRANT the petitions and cancel the Certificate of
Candidacy of MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES for the elective position of President of the Republic of
the Philippines in connection with the 9 May 2016 Synchronized Local
and National Elections.
3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1
December 2015 Resolution of the Second Division stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES, to DENY the Verified Motion for Reconsideration of
SENATOR MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES.
The Resolution dated 11 December 2015 of the Commission First
Division is AFFIRMED.
4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11
December 2015 Resolution of the First Division.
are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE
NATIVIDAD SONORA POE-LLAMANZARES is DECLARED
QUALIFIED to be a candidate for President in the National and Local
Elections of 9 May 2016.
SO ORDERED.
G.R. No. 221697
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners, 
vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.
x-----------------------x
G.R. No. 221698-700
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners, 
vs.
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND
AMADO D. VALDEZ Respondents.
DECISION
PEREZ, J.:
Before the Court are two consolidated petitions under Rule 64 in relation
to Rule 65 of the Rules of Court with extremely urgent application for
an ex parte issuance of temporary restraining order/status quo
ante order and/or writ of preliminary injunction assailing the following: (1)
1 December 2015 Resolution of the Commission on Elections
(COMELEC) Second Division; (2) 23 December 2015 Resolution of the
COMELEC En Banc, in SPA No. 15-001 (DC); (3) 11 December 2015
Resolution of the COMELEC First Division; and ( 4) 23 December 2015
Resolution of the COMELEC En Banc, in SPA No. 15-002 (DC), SPA No.
15-007 (DC) and SPA No. 15-139 (DC) for having been issued without
jurisdiction or with grave abuse of discretion amounting to lack or excess
of jurisdiction.
The Facts
Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found
abandoned as a newborn infant in the Parish Church of Jaro, Iloilo by a
certain Edgardo Militar (Edgardo) on 3 September 1968. Parental care
and custody over petitioner was passed on by Edgardo to his relatives,
Emiliano Militar (Emiliano) and his wife. Three days after, 6 September
1968, Emiliano reported and registered petitioner as a foundling with the
Office of the Civil Registrar of Iloilo City (OCR-Iloilo). In her Foundling
Certificate and Certificate of Live Birth, the petitioner was given the name
"Mary Grace Natividad Contreras Militar."  1
When petitioner was five (5) years old, celebrity spouses Ronald Allan
Kelley Poe (a.k.a. Fenando Poe, Jr.) and Jesusa Sonora Poe (a.k.a.
Susan Roces) filed a petition for her adoption with the Municipal Trial
Court (MTC) of San Juan City. On 13 May 1974, the trial court granted
their petition and ordered that petitioner's name be changed from "Mary
Grace Natividad Contreras Militar" to "Mary Grace Natividad Sonora
Poe." Although necessary notations were made by OCR-Iloilo on
petitioner's foundling certificate reflecting the court decreed adoption,  the
2
petitioner's adoptive mother discovered only sometime in the second half
of 2005 that the lawyer who handled petitioner's adoption failed to secure
from the OCR-Iloilo a new Certificate of Live Birth indicating petitioner's
new name and the name of her adoptive parents.   Without delay,
3
petitioner's mother executed an affidavit attesting to the lawyer's omission
which she submitted to the OCR-Iloilo. On 4 May 2006, OCR-Iloilo issued
a new Certificate of Live Birth in the name of Mary Grace Natividad
Sonora Poe. 4
Having reached the age of eighteen (18) years in 1986, petitioner
registered as a voter with the local COMELEC Office in San Juan City.
On 13 December 1986, she received her COMELEC Voter's Identification
Card for Precinct No. 196 in Greenhills, San Juan, Metro Manila. 5
On 4 April 1988, petitioner applied for and was issued Philippine Passport
No. F927287  by the Department of Foreign Affairs (DFA). Subsequently,
6
on 5 April 1993 and 19 May 1998, she renewed her Philippine passport
and respectively secured Philippine Passport Nos. L881511 and
DD156616. 7
Initially, the petitioner enrolled and pursued a degree in Development
Studies at the University of the Philippines but she opted to continue her
8
studies abroad and left for the United States of America (U.S.) in 1988.
Petitioner graduated in 1991 from Boston College in Chestnuts Hill,
Massachusetts where she earned her Bachelor of Arts degree in Political
Studies. 9
On 27 July 1991, petitioner married Teodoro Misael Daniel V.
Llamanzares (Llamanzares), a citizen of both the Philippines and the
U.S., at Sanctuario de San Jose Parish in San Juan City.   Desirous of
10
being with her husband who was then based in the U.S., the couple flew
back to the U.S. two days after the wedding ceremony or on 29 July
1991. 11
While in the U.S., the petitioner gave birth to her eldest child Brian Daniel
(Brian) on 16 April 1992.  Her two daughters Hanna MacKenzie (Hanna)
12
and Jesusa Anika (Anika) were both born in the Philippines on 10 July
1998 and 5 June 2004, respectively.  13
On 18 October 2001, petitioner became a naturalized American
citizen.   She obtained U.S. Passport No. 017037793 on 19 December
14
2001. 15
On 8 April 2004, the petitioner came back to the Philippines together with
Hanna to support her father's candidacy for President in the May 2004
elections. It was during this time that she gave birth to her youngest
daughter Anika. She returned to the U.S. with her two daughters on 8
July 2004.  16
After a few months, specifically on 13 December 2004, petitioner rushed
back to the Philippines upon learning of her father's deteriorating medical
condition.   Her father slipped into a coma and eventually expired. The
17
petitioner stayed in the country until 3 February 2005 to take care of her
father's funeral arrangements as well as to assist in the settlement of his
estate.18
According to the petitioner, the untimely demise of her father was a
severe blow to her entire family. In her earnest desire to be with her
grieving mother, the petitioner and her husband decided to move and
reside permanently in the Philippines sometime in the first quarter of
2005.  The couple began preparing for their resettlement including
19
notification of their children's schools that they will be transferring to
Philippine schools for the next semester; coordination with property
20
movers for the relocation of their household goods, furniture and cars
from the U.S. to the Philippines;  and inquiry with Philippine authorities as
21
to the proper procedure to be followed in bringing their pet dog into the
country.  As early as 2004, the petitioner already quit her job in the U.S.
22
Finally, petitioner came home to the Philippines on 24 May 2005  and 24
without delay, secured a Tax Identification Number from the Bureau of
Internal Revenue. Her three (3) children immediately followed  while her
25
husband was forced to stay in the U.S. to complete pending projects as
well as to arrange the sale of their family home there.26
The petitioner and her children briefly stayed at her mother's place until
she and her husband purchased a condominium unit with a parking slot
at One Wilson Place Condominium in San Juan City in the second half of
2005.  The corresponding Condominium Certificates of Title covering the
27
unit and parking slot were issued by the Register of Deeds of San Juan
City to petitioner and her husband on 20 February 2006.  Meanwhile, her
28
children of school age began attending Philippine private schools.
On 14 February 2006, the petitioner made a quick trip to the U.S. to
supervise the disposal of some of the family's remaining household
belongings.  She travelled back to the Philippines on 11 March 2006.
29
In late March 2006, petitioner's husband officially informed the U.S.
Postal Service of the family's change and abandonment of their address
in the U.S.  The family home was eventually sold on 27 April
31
2006.  Petitioner's husband resigned from his job in the U.S. in April
32
2006, arrived in the country on 4 May 2006 and started working for a
major Philippine company in July 2006. 33
In early 2006, petitioner and her husband acquired a 509-square meter
lot in Corinthian Hills, Quezon City where they built their family
home  and to this day, is where the couple and their children have been
34
residing.  A Transfer Certificate of Title covering said property was issued
35
in the couple's name by the Register of Deeds of Quezon City on 1June
2006.
On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of
the Philippines pursuant to Republic Act (R.A.) No. 9225 or the
Citizenship Retention and Re-acquisition Act of 2003.  Under the same
36
Act, she filed with the Bureau of Immigration (BI) a sworn petition to
reacquire Philippine citizenship together with petitions for derivative
citizenship on behalf of her three minor children on 10 July 2006.  As can 37
be gathered from its 18 July 2006 Order, the BI acted favorably on
petitioner's petitions and declared that she is deemed to have reacquired
her Philippine citizenship while her children are considered as citizens of
the Philippines.  Consequently, the BI issued Identification Certificates
38
23
(ICs) in petitioner's name and in the names of her three (3) children.  39
Again, petitioner registered as a voter of Barangay Santa Lucia, San
Juan City on 31 August 2006.  She also secured from the DFA a new
40
Philippine Passport bearing the No. XX4731999.  This passport was
41
renewed on 18 March 2014 and she was issued Philippine Passport No.
EC0588861 by the DFA. 42
On 6 October 2010, President Benigno S. Aquino III appointed petitioner
as Chairperson of the Movie and Television Review and Classification
Board (MTRCB).  Before assuming her post, petitioner executed an
43
"Affidavit of Renunciation of Allegiance to the United States of America
and Renunciation of American Citizenship" before a notary public in
Pasig City on 20 October 2010,  in satisfaction of the legal requisites
44
stated in Section 5 of R.A. No. 9225.  The following day, 21 October
45
2010 petitioner submitted the said affidavit to the BI  and took her oath of
46
office as Chairperson of the MTRCB.  From then on, petitioner stopped
47
using her American passport. 48
30
On 12 July 2011, the petitioner executed before the Vice Consul of the
U.S. Embassy in Manila an "Oath/Affirmation of Renunciation of
Nationality of the United States."  On that day, she accomplished a sworn
49
questionnaire before the U.S. Vice Consul wherein she stated that she
had taken her oath as MTRCB Chairperson on 21 October 2010 with the
intent, among others, of relinquishing her American citizenship.  In the
50
same questionnaire, the petitioner stated that she had resided outside of
the U.S., specifically in the Philippines, from 3 September 1968 to 29 July
1991 and from May 2005 to present. 51
On 9 December 2011, the U.S. Vice Consul issued to petitioner a
"Certificate of Loss of Nationality of the United States" effective 21
October 2010. 52
On 2 October 2012, the petitioner filed with the COMELEC her Certificate
of Candidacy (COC) for Senator for the 2013 Elections wherein she
answered "6 years and 6 months" to the question "Period of residence in
the Philippines before May 13, 2013."  Petitioner obtained the highest
53
number of votes and was proclaimed Senator on 16 May 2013.  54
On 19 December 2013, petitioner obtained Philippine Diplomatic
Passport No. DE0004530.  55
On 15 October 2015, petitioner filed her COC for the Presidency for the
May 2016 Elections.   In her COC, the petitioner declared that she is a
56
natural-born citizen and that her residence in the Philippines up to the
day before 9 May 2016 would be ten (10) years and eleven (11) months
counted from 24 May 2005.  The petitioner attached to her COC an
57
"Affidavit Affirming Renunciation of U.S.A. Citizenship" subscribed and
sworn to before a notary public in Quezon City on 14 October 2015.  58
Petitioner's filing of her COC for President in the upcoming elections
triggered the filing of several COMELEC cases against her which were
the subject of these consolidated cases.
Origin of Petition for Certiorari in G.R. No. 221697
A day after petitioner filed her COC for President, Estrella Elamparo
(Elamparo) filed a petition to deny due course or cancel said COC which
was docketed as SPA No. 15-001 (DC) and raffled to the COMELEC
Second Division. She is convinced that the COMELEC has jurisdiction
59
over her petition.  Essentially, Elamparo's contention is that petitioner
60
committed material misrepresentation when she stated in her COC that
she is a natural-born Filipino citizen and that she is a resident of the
Philippines for at least ten (10) years and eleven (11) months up to the
day before the 9 May 2016 Elections. 61
On the issue of citizenship, Elamparo argued that petitioner cannot be
considered as a natural-born Filipino on account of the fact that she was
a foundling.  Elamparo claimed that international law does not confer
62
natural-born status and Filipino citizenship on foundlings.  Following this
63
line of reasoning, petitioner is not qualified to apply for reacquisition of
Filipino citizenship under R.A. No. 9225 for she is not a natural-born
Filipino citizen to begin with. Even assuming arguendo that petitioner
64
was a natural-born Filipino, she is deemed to have lost that status when
she became a naturalized American citizen.  According to Elamparo,
65
natural-born citizenship must be continuous from birth. 66
On the matter of petitioner's residency, Elamparo pointed out that
petitioner was bound by the sworn declaration she made in her 2012
COC for Senator wherein she indicated that she had resided in the
country for only six ( 6) years and six ( 6) months as of May 2013
Elections. Elamparo likewise insisted that assuming arguendo that
petitioner is qualified to regain her natural-born status under R.A. No.
9225, she still fell short of the ten-year residency requirement of the
Constitution as her residence could only be counted at the earliest from
July 2006, when she reacquired Philippine citizenship under the said Act.
Also on the assumption that petitioner is qualified to reacquire lost
Philippine Citizenship, Elamparo is of the belief that she failed to
reestablish her domicile in the Philippines.
67
Petitioner seasonably filed her Answer wherein she countered that:
(1) the COMELEC did not have jurisdiction over Elamparo's
petition as it was actually a petition for quo warranto which could
only be filed if Grace Poe wins in the Presidential elections, and
that the Department of Justice (DOJ) has primary jurisdiction to
revoke the BI's July 18, 2006 Order;
(2) the petition failed to state a cause of action because it did not
contain allegations which, if hypothetically admitted, would make
false the statement in her COC that she is a natural-born Filipino
citizen nor was there any allegation that there was a willful or
deliberate intent to misrepresent on her part;
(3) she did not make any material misrepresentation in the COC
regarding her citizenship and residency qualifications for:
a. the 1934 Constitutional Convention deliberations show
that foundlings were considered citizens;
b. foundlings are presumed under international law to
have been born of citizens of the place where they are
found;
c. she reacquired her natural-born Philippine citizenship
under the provisions of R.A. No. 9225;
d. she executed a sworn renunciation of her American
citizenship prior to the filing of her COC for President in
 the May 9, 2016 Elections and that the same is in full
force and effect and has not been withdrawn or recanted;
e. the burden was on Elamparo in proving that she did not
possess natural-born status;
f. residence is a matter of evidence and that she
reestablished her domicile in the Philippines as early as
May 24, 2005;
g. she could reestablish residence even before she
reacquired natural-born citizenship under R.A. No. 9225;
h. statement regarding the period of residence in her
2012 COC for Senator was an honest mistake, not
binding and should give way to evidence on her true date
of reacquisition of domicile;
i. Elamparo's petition is merely an action to usurp the
sovereign right of the Filipino people to decide a purely
political question, that is, should she serve as the
country's next leader.68
After the parties submitted their respective Memoranda, the petition was
deemed submitted for resolution.
On 1 December 2015, the COMELEC Second Division promulgated a
Resolution finding that petitioner's COC, filed for the purpose of running
for the President of the Republic of the Philippines in the 9 May 2016
National and Local Elections, contained material representations which
are false. The fallo of the aforesaid Resolution reads:
WHEREFORE, in view of all the foregoing considerations, the instant
Petition to Deny Due Course to or Cancel Certificate of Candidacy is
hereby GRANTED. Accordingly, the Certificate of Candidacy for
President of the Republic of the Philippines in the May 9, 2016 National
and Local Elections filed by respondent Mary Grace Natividad Sonora
Poe Llamanzares is hereby CANCELLED. 69
Motion for Reconsideration of the 1 December 2015 Resolution was filed
by petitioner which the COMELEC En Banc resolved in its 23 December
2015 Resolution by denying the same. 70
Origin of Petition for Certiorari in G.R. Nos. 221698-700
This case stemmed from three (3) separate petitions filed by Francisco S.
Tatad (Tatad), Antonio P. Contreras (Contreras) and Amado D. Valdez
(Valdez) against petitioner before the COMELEC which were
consolidated and raffled to its First Division.
In his petition to disqualify petitioner under Rule 25 of the COMELEC
Rules of Procedure,  docketed as SPA No. 15-002 (DC), Tatad alleged
71
that petitioner lacks the requisite residency and citizenship to qualify her
for the Presidency. 72
Tatad theorized that since the Philippines adheres to the principle of jus
sanguinis, persons of unknown parentage, particularly foundlings, cannot
be considered natural-born Filipino citizens since blood relationship is
determinative of natural-born status.  Tatad invoked the rule of statutory
73
construction that what is not included is excluded. He averred that the
fact that foundlings were not expressly included in the categories of
citizens in the 193 5 Constitution is indicative of the framers' intent to
exclude them.  Therefore, the burden lies on petitioner to prove that she
74
is a natural-born citizen. 75
Neither can petitioner seek refuge under international conventions or
treaties to support her claim that foundlings have a
nationality.  According to Tatad, international conventions and treaties
76
are not self-executory and that local legislations are necessary in order to
give effect to treaty obligations assumed by the Philippines.  He also
77
stressed that there is no standard state practice that automatically
confers natural-born status to foundlings. 78
Similar to Elamparo's argument, Tatad claimed that petitioner cannot
avail of the option to reacquire Philippine citizenship under R.A. No. 9225
because it only applies to former natural-born citizens and petitioner was
not as she was a foundling. 79
Referring to petitioner's COC for Senator, Tatad concluded that she did
not comply with the ten (10) year residency requirement.  Tatad opined
80
that petitioner acquired her domicile in Quezon City only from the time
she renounced her American citizenship which was sometime in 2010 or
2011.  Additionally, Tatad questioned petitioner's lack of intention to
81
abandon her U.S. domicile as evinced by the fact that her husband
stayed thereat and her frequent trips to the U.S. 82
In support of his petition to deny due course or cancel the COC of
petitioner, docketed as SPA No. 15-139 (DC), Valdez alleged that her
repatriation under R.A. No. 9225 did not bestow upon her the status of a
natural-born citizen.  He advanced the view that former natural-born
83
citizens who are repatriated under the said Act reacquires only their
Philippine citizenship and will not revert to their original status as natural-
born citizens. 84
He further argued that petitioner's own admission in her COC for Senator
that she had only been a resident of the Philippines for at least six (6)
years and six (6) months prior to the 13 May 2013 Elections operates
against her. Valdez rejected petitioner's claim that she could have validly
reestablished her domicile in the Philippines prior to her reacquisition of
Philippine citizenship. In effect, his position was that petitioner did not
meet the ten (10) year residency requirement for President.
Unlike the previous COMELEC cases filed against petitioner, Contreras'
petition,  docketed as SPA No. 15-007 (DC), limited the attack to the
85
residency issue. He claimed that petitioner's 2015 COC for President
should be cancelled on the ground that she did not possess the ten-year
period of residency required for said candidacy and that she made false
entry in her COC when she stated that she is a legal resident of the
Philippines for ten (10) years and eleven (11) months by 9 May
2016.  Contreras contended that the reckoning period for computing
86
petitioner's residency in the Philippines should be from 18 July 2006, the
date when her petition to reacquire Philippine citizenship was approved
by the BI.  He asserted that petitioner's physical presence in the country
87
before 18 July 2006 could not be valid evidence of reacquisition of her
Philippine domicile since she was then living here as an American citizen
and as such, she was governed by the Philippine immigration laws. 88
In her defense, petitioner raised the following arguments:
First, Tatad's petition should be dismissed outright for failure to state a
cause of action. His petition did not invoke grounds proper for a
disqualification case as enumerated under Sections 12 and 68 of the
Omnibus Election Code.  Instead, Tatad completely relied on the alleged
89
lack of residency and natural-born status of petitioner which are not
among the recognized grounds for the disqualification of a candidate to
an elective office. 90
Second, the petitions filed against her are basically petitions for quo
warranto as they focus on establishing her ineligibility for the
Presidency.  A petition for quo warranto falls within the exclusive
91
jurisdiction of the Presidential Electoral Tribunal (PET) and not the
COMELEC. 92
Third, the burden to prove that she is not a natural-born Filipino citizen is
on the respondents.  Otherwise stated, she has a presumption in her
93
favor that she is a natural-born citizen of this country.
Fourth, customary international law dictates that foundlings are entitled to
a nationality and are presumed to be citizens of the country where they
are found.  Consequently, the petitioner is considered as a natural-born
94
citizen of the Philippines. 95
Fifth, she claimed that as a natural-born citizen, she has every right to be
repatriated under R.A. No. 9225 or the right to reacquire her natural-born
status.  Moreover, the official acts of the Philippine Government enjoy the
96
presumption of regularity, to wit: the issuance of the 18 July 2006 Order
of the BI declaring her as natural-born citizen, her appointment as
MTRCB Chair and the issuance of the decree of adoption of San Juan
RTC.  She believed that all these acts reinforced her position that she is
97
a natural-born citizen of the Philippines. 98
Sixth, she maintained that as early as the first quarter of 2005, she
started reestablishing her domicile of choice in the Philippines as
demonstrated by her children's resettlement and schooling in the country,
purchase of a condominium unit in San Juan City and the construction of
their family home in Corinthian Hills. 99
Seventh, she insisted that she could legally reestablish her domicile of
choice in the Philippines even before she renounced her American
citizenship as long as the three determinants for a change of domicile are
complied with.  She reasoned out that there was no requirement that
100
renunciation of foreign citizenship is a prerequisite for the acquisition of a
new domicile of choice. 101
Eighth, she reiterated that the period appearing in the residency portion
of her COC for Senator was a mistake made in good faith. 102
In a Resolution  promulgated on 11 December 2015, the COMELEC
103
First Division ruled that petitioner is not a natural-born citizen, that she
failed to complete the ten (10) year residency requirement, and that she
committed material misrepresentation in her COC when she declared
therein that she has been a resident of the Philippines for a period of ten
(10) years and eleven (11) months as of the day of the elections on 9
May 2016. The COMELEC First Division concluded that she is not
qualified for the elective position of President of the Republic of the
Philippines. The dispositive portion of said Resolution reads:
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES, to GRANT the Petitions and cancel the Certificate of
Candidacy of MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES for the elective position of President of the Republic of
the Philippines in connection with the 9 May 2016 Synchronized Local
and National Elections.
Petitioner filed a motion for reconsideration seeking a reversal of the
COMELEC First Division's Resolution. On 23 December 2015, the
COMELEC En Banc issued a Resolution denying petitioner's motion for
reconsideration.
Alarmed by the adverse rulings of the COMELEC, petitioner instituted the
present petitions for certiorari with urgent prayer for the issuance of an ex
parte temporary restraining order/status quo ante order and/or writ of
preliminary injunction. On 28 December 2015, temporary restraining
orders were issued by the Court enjoining the COMELEC and its
representatives from implementing the assailed COMELEC Resolutions
until further orders from the Court. The Court also ordered the
consolidation of the two petitions filed by petitioner in its Resolution of 12
January 2016. Thereafter, oral arguments were held in these cases.
The Court GRANTS the petition of Mary Grace Natividad S. Poe-
Llamanzares and to ANNUL and SET ASIDE the:
1. Resolution dated 1 December 2015 rendered through its
Second Division, in SPA No. 15-001 (DC),
entitled Estrella C. Elamparo, petitioner, vs. Mary Grace
Natividad Sonora Poe-Llamanzares.
2. Resolution dated 11 December 2015, rendered through its First
Division, in the consolidated cases SPA No. 15-002 (DC)
entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad
Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC)
entitled Antonio P. Contreras, petitioner, vs. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent; and SPA No.
15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent.
3. Resolution dated 23 December 2015 of the Commission En
Banc, upholding the 1 December 2015 Resolution of the Second
Division.
4. Resolution dated 23 December 2015 of the Commission En
Banc, upholding the 11 December 2015 Resolution of the First
Division.
The procedure and the conclusions from which the questioned
Resolutions emanated are tainted with grave abuse of discretion
amounting to lack of jurisdiction. The petitioner is a QUALIFIED
CANDIDATE for President in the 9 May 2016 National Elections.
The issue before the COMELEC is whether or not the COC of petitioner
should be denied due course or cancelled "on the exclusive ground" that
she made in the certificate a false material representation. The exclusivity
of the ground should hedge in the discretion of the COMELEC and
restrain it from going into the issue of the qualifications of the candidate
for the position, if, as in this case, such issue is yet undecided or
undetermined by the proper authority. The COMELEC cannot itself, in the
same cancellation case, decide the qualification or lack thereof of the
candidate.
We rely, first of all, on the Constitution of our Republic, particularly its
provisions in Article IX, C, Section 2:
Section 2. The Commission on Elections shall exercise the following
powers and functions:
(1) Enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum, and
recall.
(2) Exercise exclusive original jurisdiction over all contests
relating to the elections, returns, and qualifications of all elective
regional, provincial, and city officials, and appellate jurisdiction
over all contests involving elective municipal officials decided by
trial courts of general jurisdiction, or involving elective barangay
officials decided by trial courts of limited jurisdiction.
Decisions, final orders, or rulings of the Commission on election
contests involving elective municipal and barangay offices shall
be final, executory, and not appealable.
(3) Decide, except those involving the right to vote, all questions
affecting elections, including determination of the number and
location of polling places, appointment of election officials and
inspectors, and registration of voters.
(4) Deputize, with the concurrence of the President, law
enforcement agencies and instrumentalities of the Government,
including the Armed Forces of the Philippines, for the exclusive
purpose of ensuring free, orderly, honest, peaceful, and credible
elections.
(5) Register, after sufficient publication, political parties,
organizations, or coalitions which, in addition to other
requirements, must present their platform or program of
government; and accredit citizens' arms of the Commission on
Elections. Religious denominations and sects shall not be
registered. Those which seek to achieve their goals through
violence or unlawful means, or refuse to uphold and adhere to
this Constitution, or which are supported by any foreign
government shall likewise be refused registration.
Financial contributions from foreign governments and their
agencies to political parties, organizations, coalitions, or
candidates related to elections constitute interference in national
affairs, and, when accepted, shall be an additional ground for the
cancellation of their registration with the Commission, in addition
to other penalties that may be prescribed by law.
(6) File, upon a verified complaint, or on its own initiative,
petitions in court for inclusion or exclusion of voters; investigate
and, where appropriate, prosecute cases of violations of election
laws, including acts or omissions constituting election frauds,
offenses, and malpractices.
(7) Recommend to the Congress effective measures to minimize
election spending, including limitation of places where
propaganda materials shall be posted, and to prevent and
penalize all forms of election frauds, offenses, malpractices, and
nuisance candidacies.
(8) Recommend to the President the removal of any officer or
employee it has deputized, or the imposition of any other
disciplinary action, for violation or disregard of, or disobedience to
its directive, order, or decision.
(9) Submit to the President and the Congress a comprehensive
report on the conduct of each election, plebiscite, initiative,
referendum, or recall.
Not any one of the enumerated powers approximate the exactitude of the
provisions of Article VI, Section 17 of the same basic law stating that:
The Senate and the House of Representatives shall each have
an Electoral Tribunal which shall be the sole judge of all contests
relating to the election, returns, and qualifications of their
respective Members. Each Electoral Tribunal shall be composed
of nine Members, three of whom shall be Justices of the Supreme
Court to be designated by the Chief Justice, and the remaining
six shall be Members of the Senate or the House of
Representatives, as the case may be, who shall be chosen on the
basis of proportional representation from the political parties and
the parties or organizations registered under the party-list system
represented therein. The senior Justice in the Electoral Tribunal
shall be its Chairman.
or of the last paragraph of Article VII, Section 4 which provides that:
The Supreme Court, sitting en banc, shall be the sole judge of all
contests relating to the election, returns, and qualifications of the
President or Vice-President, and may promulgate its rules for the
purpose.
The tribunals which have jurisdiction over the question of the
qualifications of the President, the Vice-President, Senators and the
Members of the House of Representatives was made clear by the
Constitution. There is no such provision for candidates for these
positions.
Can the COMELEC be such judge?
The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v.
Commission on Elections,  which was affirmatively cited in the En
104
Banc decision in Fermin v. COMELEC  is our guide. The citation
105
in Fermin reads:
Apparently realizing the lack of an authorized proceeding for declaring
the ineligibility of candidates, the COMELEC amended its rules on
February 15, 1993 so as to provide in Rule 25 § 1, the following:
Grounds for disqualification. - Any candidate who does not
possess all the qualifications of a candidate as provided for by the
Constitution or by existing law or who commits any act declared
by law to be grounds for disqualification may be disqualified from
continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates, however,
cannot be supplied by a mere rule. Such an act is equivalent to the
creation of a cause of action which is a substantive matter which the
COMELEC, in the exercise of its rule-making power under Art. IX, A, §6
of the Constitution, cannot do it. It is noteworthy that the Constitution
withholds from the COMELEC even the power to decide cases involving
the right to vote, which essentially involves an inquiry
into qualifications based on age, residence and citizenship of voters. [Art.
IX, C, §2(3)]
The assimilation in Rule 25 of the COMELEC rules of grounds for
ineligibility into grounds for disqualification is contrary to the evident
intention of the law. For not only in their grounds but also in their
consequences are proceedings for "disqualification" different from those
for a declaration of "ineligibility." "Disqualification" proceedings, as
already stated, are based on grounds specified in § 12 and §68 of the
Omnibus Election Code and in §40 of the Local Government Code and
are for the purpose of barring an individual from becoming a candidate or
from continuing as a candidate for public office. In a word, their purpose
is to eliminate a candidate from the race either from the start or during its
progress. "Ineligibility," on the other hand, refers to the lack of the
qualifications prescribed in the Constitution or the statutes for holding
public office and the purpose of the proceedings for declaration of
ineligibility is to remove the incumbent from office.
Consequently, that an individual possesses the qualifications for a public
office does not imply that he is not disqualified from becoming a
candidate or continuing as a candidate for a public office and vice versa.
We have this sort of dichotomy in our Naturalization Law. (C.A. No. 473)
That an alien has the qualifications prescribed in §2 of the Law does not
imply that he does not suffer from any of [the] disqualifications provided in
§4.
Before we get derailed by the distinction as to grounds and the
consequences of the respective proceedings, the importance of the
opinion is in its statement that "the lack of provision for declaring the
ineligibility of candidates, however, cannot be supplied by a mere rule".
Justice Mendoza lectured in Romualdez-Marcos that:
Three reasons may be cited to explain the absence of an authorized
proceeding for determining before election the qualifications of a
candidate.
First is the fact that unless a candidate wins and is proclaimed elected,
there is no necessity for determining his eligibility for the office. In
contrast, whether an individual should be disqualified as a candidate for
acts constituting election offenses (e.g., vote buying, over spending,
commission of prohibited acts) is a prejudicial question which should be
determined lest he wins because of the very acts for which his
disqualification is being sought. That is why it is provided that if the
grounds for disqualification are established, a candidate will not be voted
for; if he has been voted for, the votes in his favor will not be counted;
and if for some reason he has been voted for and he has won, either he
will not be proclaimed or his proclamation will be set aside.
Second is the fact that the determination of a candidates'
eligibility, e.g., his citizenship or, as in this case, his domicile, may take a
long time to make, extending beyond the beginning of the term of the
office. This is amply demonstrated in the companion case (G.R. No.
120265, Agapito A. Aquino v. COMELEC) where the determination of
Aquino's residence was still pending in the COMELEC even after the
elections of May 8, 1995. This is contrary to the summary character
proceedings relating to certificates of candidacy. That is why the law
makes the receipt of certificates of candidacy a ministerial duty of the
COMELEC and its officers. The law is satisfied if candidates state in their
certificates of candidacy that they are eligible for the position which they
seek to fill, leaving the determination of their qualifications to be made
after the election and only in the event they are elected. Only in cases
involving charges of false representations made in certificates of
candidacy is the COMELEC given jurisdiction.
Third is the policy underlying the prohibition against pre-proclamation
cases in elections for President, Vice President, Senators and members
of the House of Representatives. (R.A. No. 7166, § 15) The purpose is to
preserve the prerogatives of the House of Representatives Electoral
Tribunal and the other Tribunals as "sole judges" under the Constitution
of the election, returns and qualifications of members of Congress of the
President and Vice President, as the case may be. 106
To be sure, the authoritativeness of the Romualdez pronouncements as
reiterated in Fermin, led to the amendment through COMELEC
Resolution No. 9523, on 25 September 2012 of its Rule 25. This, the 15
February1993 version of Rule 25, which states that:
Grounds for disqualification. -Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by
existing law or who commits any act declared by law to be grounds for
disqualification may be disqualified from continuing as a candidate. 107
was in the 2012 rendition, drastically changed to:
Grounds. - Any candidate who, in action or protest in which he is a party,
is declared by final decision of a competent court, guilty of, or found by
the Commission to be suffering from any disqualification provided by law
or the Constitution.
A Petition to Disqualify a Candidate invoking grounds for a Petition to
Deny to or Cancel a Certificate of Candidacy or Petition to Declare a
Candidate as a Nuisance Candidate, or a combination thereof, shall be
summarily dismissed.
Clearly, the amendment done in 2012 is an acceptance of the reality of
absence of an authorized proceeding for determining before election the
qualifications of candidate. Such that, as presently required, to disqualify
a candidate there must be a declaration by a final judgment of a
competent court that the candidate sought to be disqualified "is guilty of
or found by the Commission to be suffering from any disqualification
provided by law or the Constitution."
Insofar as the qualification of a candidate is concerned, Rule 25 and Rule
23 are flipsides of one to the other. Both do not allow, are not
authorizations, are not vestment of jurisdiction, for the COMELEC to
determine the qualification of a candidate. The facts of qualification must
beforehand be established in a prior proceeding before an authority
properly vested with jurisdiction. The prior determination of qualification
may be by statute, by executive order or by a judgment of a competent
court or tribunal.
If a candidate cannot be disqualified without a prior finding that he or she
is suffering from a disqualification "provided by law or the Constitution,"
neither can the certificate of candidacy be cancelled or denied due
course on grounds of false representations regarding his or her
qualifications, without a prior authoritative finding that he or she is not
qualified, such prior authority being the necessary measure by which the
falsity of the representation can be found. The only exception that can be
conceded are self-evident facts of unquestioned or unquestionable
veracity and judicial confessions. Such are, anyway, bases equivalent to
prior decisions against which the falsity of representation can be
determined.
The need for a predicate finding or final pronouncement in a proceeding
under Rule 23 that deals with, as in this case, alleged false
representations regarding the candidate's citizenship and residence,
forced the COMELEC to rule essentially that since foundlings  are not
108
mentioned in the enumeration of citizens under the 1935
Constitution,  they then cannot be citizens. As the COMELEC stated in
109
oral arguments, when petitioner admitted that she is a foundling, she said
it all. This borders on bigotry. Oddly, in an effort at tolerance, the
COMELEC, after saying that it cannot rule that herein petitioner
possesses blood relationship with a Filipino citizen when "it is certain that
such relationship is indemonstrable," proceeded to say that "she now has
the burden to present evidence to prove her natural filiation with a Filipino
parent."
The fact is that petitioner's blood relationship with a Filipino citizen is
DEMONSTRABLE.
At the outset, it must be noted that presumptions regarding paternity is
neither unknown nor unaccepted in Philippine Law. The Family Code of
the Philippines has a whole chapter on Paternity and Filiation.  That
110
said, there is more than sufficient evider1ce that petitioner has Filipino
parents and is therefore a natural-born Filipino. Parenthetically, the
burden of proof was on private respondents to show that petitioner is not
a Filipino citizen. The private respondents should have shown that both of
petitioner's parents were aliens. Her admission that she is a foundling did
not shift the burden to her because such status did not exclude the
possibility that her parents were Filipinos, especially as in this case where
there is a high probability, if not certainty, that her parents are Filipinos.
The factual issue is not who the parents of petitioner are, as their
identities are unknown, but whether such parents are Filipinos. Under
Section 4, Rule 128:
Sect. 4. Relevancy, collateral matters - Evidence must have such a
relation to the fact in issue as to induce belief in its existence or no-
existence. Evidence on collateral matters shall not be allowed, except
when it tends in any reasonable degree to establish the probability of
improbability of the fact in issue.
The Solicitor General offered official statistics from the Philippine
Statistics Authority (PSA)  that from 1965 to 1975, the total number of
111
foreigners born in the Philippines was 15,986 while the total number of
Filipinos born in the country was 10,558,278. The statistical probability
that any child born in the Philippines in that decade is natural-born
Filipino was 99.83%. For her part, petitioner presented census statistics
for Iloilo Province for 1960 and 1970, also from the PSA. In 1960, there
were 962,532 Filipinos and 4,734 foreigners in the province; 99.62% of
the population were Filipinos. In 1970, the figures were 1,162,669
Filipinos and 5,304 foreigners, or 99.55%. Also presented were figures
for the child producing ages (15-49). In 1960, there were 230,528 female
Filipinos as against 730 female foreigners or 99.68%. In the same year,
there were 210,349 Filipino males and 886 male aliens, or 99.58%. In
1970, there were 270,299 Filipino females versus 1, 190 female aliens,
or 99.56%. That same year, there were 245,740 Filipino males as against
only 1,165 male aliens or 99.53%. COMELEC did not dispute these
figures. Notably, Commissioner Arthur Lim admitted, during the oral
arguments, that at the time petitioner was found in 1968, the majority of
the population in Iloilo was Filipino.
112
Other circumstantial evidence of the nationality of petitioner's parents are
the fact that she was abandoned as an infant in a Roman Catholic
Church in Iloilo City.  She also has typical Filipino features: height, flat
1âwphi1
nasal bridge, straight black hair, almond shaped eyes and an oval face.
There is a disputable presumption that things have happened according
to the ordinary course of nature and the ordinary habits of life.  All of the
113
foregoing evidence, that a person with typical Filipino features is
abandoned in Catholic Church in a municipality where the population of
the Philippines is overwhelmingly Filipinos such that there would be more
than a 99% chance that a child born in the province would be a Filipino,
would indicate more than ample probability if not statistical certainty, that
petitioner's parents are Filipinos. That probability and the evidence on
which it is based are admissible under Rule 128, Section 4 of the Revised
Rules on Evidence.
To assume otherwise is to accept the absurd, if not the virtually
impossible, as the norm. In the words of the Solicitor General:
Second. It is contrary to common sense because foreigners do not come
to the Philippines so they can get pregnant and leave their newborn
babies behind. We do not face a situation where the probability is such
that every foundling would have a 50% chance of being a Filipino and a
50% chance of being a foreigner. We need to frame our questions
properly. What are the chances that the parents of anyone born in the
Philippines would be foreigners? Almost zero. What are the chances that
the parents of anyone born in the Philippines would be Filipinos? 99.9%.
According to the Philippine Statistics Authority, from 2010 to 2014, on a
yearly average, there were 1,766,046 children born in the Philippines to
Filipino parents, as opposed to 1,301 children in the Philippines of foreign
parents. Thus, for that sample period, the ratio of non-Filipino children to
natural born Filipino children is 1:1357. This means that the statistical
probability that any child born in the Philippines would be a natural born
Filipino is 99.93%.
From 1965 to 1975, the total number of foreigners born in the Philippines
is 15,986 while the total number of Filipinos born in the Philippines is
15,558,278. For this period, the ratio of non-Filipino children is 1:661.
This means that the statistical probability that any child born in the
Philippines on that decade would be a natural born Filipino is 99.83%.
We can invite statisticians and social anthropologists to crunch the
numbers for us, but I am confident that the statistical probability that a
child born in the Philippines would be a natural born Filipino will not be
affected by whether or not the parents are known. If at all, the likelihood
that a foundling would have a Filipino parent might even be higher than
99.9%. Filipinos abandon their children out of poverty or perhaps, shame.
We do not imagine foreigners abandoning their children here in the
Philippines thinking those infants would have better economic
opportunities or believing that this country is a tropical paradise suitable
for raising abandoned children. I certainly doubt whether a foreign couple
has ever considered their child excess baggage that is best left behind.
To deny full Filipino citizenship to all foundlings and render them
stateless just because there may be a theoretical chance that one among
the thousands of these foundlings might be the child of not just one, but
two, foreigners is downright discriminatory, irrational, and unjust. It just
doesn't make any sense. Given the statistical certainty - 99.9% - that any
child born in the Philippines would be a natural born citizen, a decision
denying foundlings such status is effectively a denial of their birthright.
There is no reason why this Honorable Court should use an improbable
hypothetical to sacrifice the fundamental political rights of an entire class
of human beings. Your Honor, constitutional interpretation and the use of
common sense are not separate disciplines.
As a matter of law, foundlings are as a class, natural-born citizens. While
the 1935 Constitution's enumeration is silent as to foundlings, there is no
restrictive language which would definitely exclude foundlings either.
Because of silence and ambiguity in the enumeration with respect to
foundlings, there is a need to examine the intent of the framers.
In Nitafan v. Commissioner of Internal Revenue,  this Court held that:
114
The ascertainment of that intent is but in keeping with the
fundamental principle of constitutional construction that the intent
of the framers of the organic law and of the people adopting it
should be given effect. The primary task in constitutional
construction is to ascertain and thereafter assure the realization
of the purpose of the framers and of the people in the adoption of
the Constitution. It may also be safely assumed that the people in
ratifying the Constitution were guided mainly by the explanation
offered by the framers.115
As pointed out by petitioner as well as the Solicitor General, the
deliberations of the 1934 Constitutional Convention show that the framers
intended foundlings to be covered by the enumeration. The following
exchange is recorded:
Sr. Rafols: For an amendment. I propose that after subsection 2, the
following is inserted: "The natural children of a foreign father and a
Filipino mother not recognized by the father.
xxxx
President:
[We] would like to request a clarification from the proponent of the
amendment. The gentleman refers to natural children or to any kind of
illegitimate children?
Sr. Rafols:
To all kinds of illegitimate children. It also includes natural children of
unknown parentage, natural or illegitimate children of unknown parents.
Sr. Montinola:
For clarification. The gentleman said "of unknown parents." Current
codes consider them Filipino, that is, I refer to the Spanish Code wherein
all children of unknown parentage born in Spanish territory are
considered Spaniards, because the presumption is that a child of
unknown parentage is the son of a Spaniard. This may be applied in the
Philippines in that a child of unknown parentage born in the Philippines is
deemed to be Filipino, and there is no need ...
Sr. Rafols:
There is a need, because we are relating the conditions that are
[required] to be Filipino.
Sr. Montinola:
But that is the interpretation of the law, therefore, there is no [more] need
for amendment.
Sr. Rafols:
The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother
recognized by one, or the children of unknown parentage."
Sr. Briones:
The amendment [should] mean children born in the Philippines of
unknown parentage.
Sr. Rafols:
The son of a Filipina to a Foreigner, although this [person] does not
recognize the child, is not unknown.
President:
Does the gentleman accept the amendment or not?
Sr. Rafols:
I do not accept the amendment because the amendment would exclude
the children of a Filipina with a foreigner who does not recognize the
child. Their parentage is not unknown and I think those of overseas
Filipino mother and father [whom the latter] does not recognize, should
also be considered as Filipinos.
President:
The question in order is the amendment to the amendment from the
Gentleman from Cebu, Mr. Briones.
Sr. Busion:
Mr. President, don't you think it would be better to leave this matter in the
hands of the Legislature?
Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in
between, that the constitution need [not] refer to them. By international
law the principle that children or people born in a country of unknown
parents are citizens in this nation is recognized, and it is not necessary to
include a provision on the subject exhaustively. 116
Though the Rafols amendment was not carried out, it was not because
there was any objection to the notion that persons of "unknown
parentage" are not citizens but only because their number was not
enough to merit specific mention. Such was the account,  cited by
117
petitioner, of delegate and constitution law author Jose Aruego who said:
During the debates on this provision, Delegate Rafols presented
an amendment to include as Filipino citizens the illegitimate
children with a foreign father of a mother who was a citizen of the
Philippines, and also foundlings; but this amendment was
defeated primarily because the Convention believed that the
cases, being too few to warrant the inclusion of a provision in the
Constitution to apply to them, should be governed by statutory
legislation. Moreover, it was believed that the rules of
international law were already clear to the effect that illegitimate
children followed the citizenship of the mother, and
that foundlings followed the nationality of the place where they
were found, thereby making unnecessary the inclusion in the
Constitution of the proposed amendment.
This explanation was likewise the position of the Solicitor General during
the 16 February 2016 Oral Arguments:
We all know that the Rafols proposal was rejected. But note that what
was declined was the proposal for a textual and explicit recognition of
foundlings as Filipinos. And so, the way to explain the constitutional
silence is by saying that it was the view of Montinola and Roxas which
prevailed that there is no more need to expressly declare foundlings as
Filipinos.
Obviously, it doesn't matter whether Montinola's or Roxas' views were
legally correct. Framers of a constitution can constitutionalize rules based
on assumptions that are imperfect or even wrong. They can even
overturn existing rules. This is basic. What matters here is that Montinola
and Roxas were able to convince their colleagues in the convention that
there is no more need to expressly declare foundlings as Filipinos
because they are already impliedly so recognized.
In other words, the constitutional silence is fully explained in terms of
linguistic efficiency and the avoidance of redundancy. The policy is clear:
it is to recognize foundlings, as a class, as Filipinos under Art. IV, Section
1 (3) of the 1935 Constitution. This inclusive policy is carried over into the
1973 and 1987 Constitution. It is appropriate to invoke a famous scholar
as he was paraphrased by Chief Justice Fernando: the constitution is not
silently silent, it is silently vocal. 
118
The Solicitor General makes the further point that the framers "worked to
create a just and humane society," that "they were reasonable patriots
and that it would be unfair to impute upon them a discriminatory intent
against foundlings." He exhorts that, given the grave implications of the
argument that foundlings are not natural-born Filipinos, the Court must
search the records of the 1935, 1973 and 1987 Constitutions "for an
express intention to deny foundlings the status of Filipinos. The burden is
on those who wish to use the constitution to discriminate against
foundlings to show that the constitution really intended to take this path to
the dark side and inflict this across the board marginalization."
We find no such intent or language permitting discrimination against
foundlings. On the contrary, all three Constitutions guarantee the basic
right to equal protection of the laws. All exhort the State to render social
justice. Of special consideration are several provisions in the present
charter: Article II, Section 11 which provides that the "State values the
dignity of every human person and guarantees full respect for human
rights," Article XIII, Section 1 which mandates Congress to "give highest
priority to the enactment of measures that protect and enhance the right
of all the people to human dignity, reduce social, economic, and political
inequalities x x x" and Article XV, Section 3 which requires the State to
defend the "right of children to assistance, including proper care and
nutrition, and special protection from all forms of neglect, abuse, cruelty,
exploitation, and other conditions prejudicial to their development."
Certainly, these provisions contradict an intent to discriminate against
foundlings on account of their unfortunate status.
Domestic laws on adoption also support the principle that foundlings are
Filipinos. These laws do not provide that adoption confers citizenship
upon the adoptee. Rather, the adoptee must be a Filipino in the first place
to be adopted. The most basic of such laws is Article 15 of the Civil Code
which provides that "[l]aws relating to family rights, duties, status,
conditions, legal capacity of persons are binding on citizens of the
Philippines even though living abroad." Adoption deals with status, and a
Philippine adoption court will have jurisdiction only if the adoptee is a
Filipino. In Ellis and Ellis v. Republic,  a child left by an unidentified
119
mother was sought to be adopted by aliens. This Court said:
In this connection, it should be noted that this is a proceedings in
rem, which no court may entertain unless it has jurisdiction, not only over
the subject matter of the case and over the parties, but also over the
res, which is the personal status of Baby Rose as well as that of
petitioners herein. Our Civil Code (Art. 15) adheres to the theory that
jurisdiction over the status of a natural person is determined by the
latter's nationality. Pursuant to this theory, we have jurisdiction over the
status of Baby Rose, she being a citizen of the Philippines, but not over
the status of the petitioners, who are foreigners. (Underlining supplied)
120
Recent legislation is more direct. R.A. No. 8043 entitled "An Act
Establishing the Rules to Govern the Inter-Country Adoption of Filipino
Children and For Other Purposes" (otherwise known as the "Inter-
Country Adoption Act of 1995"), R.A. No. 8552, entitled "An Act
Establishing the Rules and Policies on the Adoption of Filipino Children
and For Other Purposes" (otherwise known as the Domestic Adoption Act
of 1998) and this Court's A.M. No. 02-6-02-SC or the "Rule on Adoption,"
all expressly refer to "Filipino children" and include foundlings as among
Filipino children who may be adopted.
It has been argued that the process to determine that the child is a
foundling leading to the issuance of a foundling certificate under these
laws and the issuance of said certificate are acts to acquire or perfect
Philippine citizenship which make the foundling a naturalized Filipino at
best. This is erroneous. Under Article IV, Section 2 "Natural-born citizens
are those who are citizens of the Philippines from birth without having to
perform any act to acquire or perfect their Philippine citizenship." In the
first place, "having to perform an act" means that the act must be
personally done by the citizen. In this instance, the determination of
foundling status is done not by the child but by the
authorities.  Secondly, the object of the process is the determination of
121
the whereabouts of the parents, not the citizenship of the child. Lastly, the
process is certainly not analogous to naturalization proceedings to
acquire Philippine citizenship, or the election of such citizenship by one
born of an alien father and a Filipino mother under the 1935 Constitution,
which is an act to perfect it.
In this instance, such issue is moot because there is no dispute that
petitioner is a foundling, as evidenced by a Foundling Certificate issued in
her favor.  The Decree of Adoption issued on 13 May 1974, which
122
approved petitioner's adoption by Jesusa Sonora Poe and Ronald Allan
Kelley Poe, expressly refers to Emiliano and his wife, Rosario Militar, as
her "foundling parents," hence effectively affirming petitioner's status as a
foundling. 123
Foundlings are likewise citizens under international law. Under the 1987
Constitution, an international law can become part of the sphere of
domestic law either by transformation or incorporation. The
transformation method requires that an international law be transformed
into a domestic law through a constitutional mechanism such as local
legislation.  On the other hand, generally accepted principles of
124
international law, by virtue of the incorporation clause of the Constitution,
form part of the laws of the land even if they do not derive from treaty
obligations. Generally accepted principles of international law include
international custom as evidence of a general practice accepted as law,
and general principles of law recognized by civilized
nations.  International customary rules are accepted as binding as a
125
result from the combination of two elements: the established, widespread,
and consistent practice on the part of States; and a psychological
element known as the opinionjuris sive necessitates (opinion as to law or
necessity). Implicit in the latter element is a belief that the practice in
question is rendered obligatory by the existence of a rule of law requiring
it.  "General principles of law recognized by civilized nations" are
126
principles "established by a process of reasoning" or judicial logic, based
on principles which are "basic to legal systems generally,"  such as
127
"general principles of equity, i.e., the general principles of fairness and
justice," and the "general principle against discrimination" which is
embodied in the "Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural Rights, the
International Convention on the Elimination of All Forms of Racial
Discrimination, the Convention Against Discrimination in Education, the
Convention (No. 111) Concerning Discrimination in Respect of
Employment and Occupation."  These are the same core principles
128
which underlie the Philippine Constitution itself, as embodied in the due
process and equal protection clauses of the Bill of Rights. 129
Universal Declaration of Human Rights ("UDHR") has been interpreted by
this Court as part of the generally accepted principles of international law
and binding on the State.  Article 15 thereof states:
130
1. Everyone has the right to a nationality.
 2. No one shall be arbitrarily deprived of his nationality nor denied
the right to change his nationality.
The Philippines has also ratified the UN Convention on the Rights of the
Child (UNCRC). Article 7 of the UNCRC imposes the following obligations
on our country:
Article 7
1. The child shall be registered immediately after birth and shall have the
right from birth to a name, the right to acquire a nationality and as far as
possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in
accordance with their national law and their obligations under the relevant
international instruments in this field, in particular where the child would
otherwise be stateless.
In 1986, the country also ratified the 1966 International Covenant on Civil
and Political Rights (ICCPR). Article 24 thereof provide for the right
of every child "to acquire a nationality:"
Article 24
1. Every child shall have, without any discrimination as to race, colour,
sex, language, religion, national or social origin, property or birth, the
right, to such measures of protection as are required by his status as a
minor, on the part of his family, society and the State.
2. Every child shall be registered immediately after birth and shall have a
name.
3. Every child has the right to acquire a nationality.
The common thread of the UDHR, UNCRC and ICCPR is to obligate the
Philippines to grant nationality from birth and ensure that no child is
stateless. This grant of nationality must be at the time of birth, and it
cannot be accomplished by the application of our present naturalization
laws, Commonwealth Act No. 473, as amended, and R.A. No. 9139, both
of which require the applicant to be at least eighteen (18) years old.
The principles found in two conventions, while yet unratified by the
Philippines, are generally accepted principles of international law. The
first is Article 14 of the 1930 Hague Convention on Certain Questions
Relating to the Conflict of Nationality Laws under which a foundling is
presumed to have the "nationality of the country of birth," to wit:
Article 14
A child whose parents are both unknown shall have the nationality of the
country of birth. If the child's parentage is established, its nationality shall
be determined by the rules applicable in cases where the parentage is
known.
A foundling is, until the contrary is proved, presumed to have been born
on the territory of the State in which it was found. (Underlining supplied)
The second is the principle that a foundling is presumed born of
citizens of the country where he is found, contained in Article 2 of the
1961 United Nations Convention on the Reduction of Statelessness:
Article 2
A foundling found in the territory of a Contracting State shall, in the
absence of proof to the contrary, be considered to have been born within
the territory of parents possessing the nationality of that State.
That the Philippines is not a party to the 1930 Hague Convention nor to
the 1961 Convention on the Reduction of Statelessness does not mean
that their principles are not binding. While the Philippines is not a party to
the 1930 Hague Convention, it is a signatory to the Universal Declaration
on Human Rights, Article 15(1) ofwhich effectively affirms Article 14 of
131
the 1930 Hague Convention. Article 2 of the 1961 "United Nations
Convention on the Reduction of Statelessness" merely "gives effect" to
Article 15(1) of the UDHR.  In Razon v. Tagitis,   this Court noted that
132 133
the Philippines had not signed or ratified the "International Convention for
the Protection of All Persons from Enforced Disappearance." Yet, we
ruled that the proscription against enforced disappearances in the said
convention was nonetheless binding as a "generally accepted principle of
international law." Razon v. Tagitis is likewise notable for declaring the
ban as a generally accepted principle of international law although the
convention had been ratified by only sixteen states and had not even
come into force and which needed the ratification of a minimum of twenty
states. Additionally, as petitioner points out, the Court was content with
the practice of international and regional state organs, regional state
practice in Latin America, and State Practice in the United States.
Another case where the number of ratifying countries was not
determinative is Mijares v. Ranada,   where only four countries had
134
"either ratified or acceded to"  the 1966 "Convention on the Recognition
135
and Enforcement of Foreign Judgments in Civil and Commercial Matters"
when the case was decided in 2005. The Court also pointed out that that
nine member countries of the European Common Market had acceded to
the Judgments Convention. The Court also cited U.S. laws and
jurisprudence on recognition of foreign judgments. In all, only the
practices of fourteen countries were considered and yet, there was
pronouncement that recognition of foreign judgments was widespread
practice.
Our approach in Razon and Mijares effectively takes into account the fact
that "generally accepted principles of international law" are based not
only on international custom, but also on "general principles of law
recognized by civilized nations," as the phrase is understood in Article
38.1 paragraph (c) of the ICJ Statute. Justice, fairness, equity and the
policy against discrimination, which are fundamental principles underlying
the Bill of Rights and which are "basic to legal systems
generally,"  support the notion that the right against enforced
136
disappearances and the recognition of foreign judgments, were correctly
considered as "generally accepted principles of international law" under
the incorporation clause.
Petitioner's evidence  shows that at least sixty countries in Asia, North
137
and South America, and Europe have passed legislation recognizing
foundlings as its citizen. Forty-two (42) of those countries follow the jus
sanguinis regime. Of the sixty, only thirty-three (33) are parties to the
1961 Convention on Statelessness; twenty-six (26) are not signatories to
the Convention. Also, the Chief Justice, at the 2 February 2016 Oral
Arguments pointed out that in 166 out of 189 countries surveyed (or
87.83%), foundlings are recognized as citizens. These circumstances,
including the practice of jus sanguinis countries, show that it is a
generally accepted principle of international law to presume foundlings as
having been born of nationals of the country in which the foundling is
found.
Current legislation reveals the adherence of the Philippines to this
generally accepted principle of international law. In particular, R.A. No.
8552, R.A. No. 8042 and this Court's Rules on Adoption, expressly refer
to "Filipino children." In all of them, foundlings are among the Filipino
children who could be adopted. Likewise, it has been pointed that the
DFA issues passports to foundlings. Passports are by law, issued only to
citizens. This shows that even the executive department, acting through
the DFA, considers foundlings as Philippine citizens.
Adopting these legal principles from the 1930 Hague Convention and the
1961 Convention on Statelessness is rational and reasonable and
consistent with the jus sanguinis regime in our Constitution. The
presumption of natural-born citizenship of foundlings stems from the
presumption that their parents are nationals of the Philippines. As the
empirical data provided by the PSA show, that presumption is at more
than 99% and is a virtual certainty.
In sum, all of the international law conventions and instruments on the
matter of nationality of foundlings were designed to address the plight of
a defenseless class which suffers from a misfortune not of their own
making. We cannot be restrictive as to their application if we are a
country which calls itself civilized and a member of the community of
nations. The Solicitor General's warning in his opening statement is
relevant:
.... the total effect of those documents is to signify to this Honorable Court
that those treaties and conventions were drafted because the world
community is concerned that the situation of foundlings renders them
legally invisible. It would be tragically ironic if this Honorable Court ended
up using the international instruments which seek to protect and uplift
foundlings a tool to deny them political status or to accord them second-
class citizenship.138
The COMELEC also ruled  that petitioner's repatriation in July 2006
139
under the provisions of R.A. No. 9225 did not result in the reacquisition of
natural-born citizenship. The COMELEC reasoned that since the
applicant must perform an act, what is reacquired is not "natural-born"
citizenship but only plain "Philippine citizenship."
The COMELEC's rule arrogantly disregards consistent jurisprudence on
the matter of repatriation statutes in general and of R.A. No. 9225 in
particular.
In the seminal case of Bengson Ill v. HRET,   repatriation was explained
140
as follows:
Moreover, repatriation results in the recovery of the original nationality.
This means that a naturalized Filipino who lost his citizenship will be
restored to his prior status as a naturalized Filipino citizen. On the other
hand, if he was originally a natural-born citizen before he lost his
Philippine citizenship, he will be restored to his former status as a natural-
born Filipino.
R.A. No. 9225 is a repatriation statute and has been described as such in
several cases. They include Sobejana-Condon v. COMELEC  where we 141
described it as an "abbreviated repatriation process that restores one's
Filipino citizenship x x x." Also included is Parreno v. Commission on
Audit,  which cited Tabasa v. Court of Appeals, where we said that
142 143
"[t]he repatriation of the former Filipino will allow him to recover his
natural-born citizenship. Parreno v. Commission on Audit  is categorical
144
that "if petitioner reacquires his Filipino citizenship (under R.A. No. 9225),
he will ... recover his natural-born citizenship."
The COMELEC construed the phrase "from birth" in the definition of
natural citizens as implying "that natural-born citizenship must begin at
birth and remain uninterrupted and continuous from birth." R.A. No. 9225
was obviously passed in line with Congress' sole prerogative to
determine how citizenship may be lost or reacquired. Congress saw it fit
to decree that natural-born citizenship may be reacquired even if it had
been once lost. It is not for the COMELEC to disagree with the Congress'
determination.
More importantly, COMELEC's position that natural-born status must be
continuous was already rejected in Bengson III v. HRET  where the
145
phrase "from birth" was clarified to mean at the time of birth: "A person
who at the time of his birth, is a citizen of a particular country, is a natural-
born citizen thereof." Neither is "repatriation" an act to "acquire or perfect"
one's citizenship. In Bengson III v. HRET, this Court pointed out that
there are only two types of citizens under the 1987 Constitution: natural-
born citizen and naturalized, and that there is no third category for
repatriated citizens:
It is apparent from the enumeration of who are citizens under the present
Constitution that there are only two classes of citizens: (1) those who are
natural-born and (2) those who are naturalized in accordance with law. A
citizen who is not a naturalized Filipino, ie., did not have to undergo the
process of naturalization to obtain Philippine citizenship, necessarily is a
natural-born Filipino. Noteworthy is the absence in said enumeration of a
separate category for persons who, after losing Philippine citizenship,
subsequently reacquire it. The reason therefor is clear: as to such
persons, they would either be natural-born or naturalized depending on
the reasons for the loss of their citizenship and the mode prescribed by
the applicable law for the reacquisition thereof. As respondent Cruz was
not required by law to go through naturalization proceedings in order to
reacquire his citizenship, he is perforce a natural-born Filipino. As such,
he possessed all the necessary qualifications to be elected as member of
the House of Representatives. 146
The COMELEC cannot reverse a judicial precedent. That is reserved to
this Court. And while we may always revisit a doctrine, a new rule
reversing standing doctrine cannot be retroactively applied. In Morales v.
Court of Appeals and Jejomar Erwin S. Binay, Jr.,  where we decreed
147
reversed the condonation doctrine, we cautioned that it "should be
prospective in application for the reason that judicial decisions applying or
interpreting the laws of the Constitution, until reversed, shall form part of
the legal system of the Philippines." This Court also said that "while the
future may ultimately uncover a doctrine's error, it should be, as a general
rule, recognized as good law prior to its abandonment. Consequently, the
people's reliance thereupon should be respected." 148
Lastly, it was repeatedly pointed out during the oral arguments that
petitioner committed a falsehood when she put in the spaces for "born to"
in her application for repatriation under R.A. No. 9225 the names of her
adoptive parents, and this misled the BI to presume that she was a
natural-born Filipino. It has been contended that the data required were
the names of her biological parents which are precisely unknown.
This position disregards one important fact - petitioner was legally
adopted. One of the effects of adoption is "to sever all legal ties between
the biological parents and the adoptee, except when the biological parent
is the spouse of the adoptee."  Under R.A. No. 8552, petitioner was also
149
entitled to an amended birth certificate "attesting to the fact that the
adoptee is the child of the adopter(s)" and which certificate "shall not bear
any notation that it is an amended issue."  That law also requires that
150
"[a]ll records, books, and papers relating to the adoption cases in the files
of the court, the Department [of Social Welfare and Development], or any
other agency or institution participating in the adoption proceedings shall
be kept strictly confidential."  The law therefore allows petitioner to state
151
that her adoptive parents were her birth parents as that was what would
be stated in her birth certificate anyway. And given the policy of strict
confidentiality of adoption records, petitioner was not obligated to
disclose that she was an adoptee.
Clearly, to avoid a direct ruling on the qualifications of petitioner, which it
cannot make in the same case for cancellation of COC, it resorted to
opinionatedness which is, moreover, erroneous. The whole process
undertaken by COMELEC is wrapped in grave abuse of discretion.
On Residence
The tainted process was repeated in disposing of the issue of whether or
not petitioner committed false material representation when she stated in
her COC that she has before and until 9 May 2016 been a resident of the
Philippines for ten (10) years and eleven (11) months.
Petitioner's claim that she will have been a resident for ten (10) years and
eleven (11) months on the day before the 2016 elections, is true.
The Constitution requires presidential candidates to have ten (10) years'
residence in the Philippines before the day of the elections. Since the
forthcoming elections will be held on 9 May 2016, petitioner must have
been a resident of the Philippines prior to 9 May 2016 for ten (10) years.
In answer to the requested information of "Period of Residence in the
Philippines up to the day before May 09, 2016," she put in "10 years 11
months" which according to her pleadings in these cases corresponds to
a beginning date of 25 May 2005 when she returned for good from the
U.S.
When petitioner immigrated to the U.S. in 1991, she lost her original
domicile, which is the Philippines. There are three requisites to acquire a
new domicile: 1. Residence or bodily presence in a new locality; 2. an
intention to remain there; and 3. an intention to abandon the old
domicile.  To successfully effect a change of domicile, one must
152
demonstrate an actual removal or an actual change of domicile; a bona
fide intention of abandoning the former place of residence and
establishing a new one and definite acts which correspond with the
purpose. In other words, there must basically be animus
manendi coupled with animus non revertendi. The purpose to remain in
or at the domicile of choice must be for an indefinite period of time; the
change of residence must be voluntary; and the residence at the place
chosen for the new domicile must be actual. 153
Petitioner presented voluminous evidence showing that she and her
family abandoned their U.S. domicile and relocated to the Philippines for
good. These evidence include petitioner's former U.S. passport showing
her arrival on 24 May 2005 and her return to the Philippines every time
she travelled abroad; e-mail correspondences starting in March 2005 to
September 2006 with a freight company to arrange for the shipment of
their household items weighing about 28,000 pounds to the Philippines;
e-mail with the Philippine Bureau of Animal Industry inquiring how to ship
their dog to the Philippines; school records of her children showing
enrollment in Philippine schools starting June 2005 and for succeeding
years; tax identification card for petitioner issued on July 2005; titles for
condominium and parking slot issued in February 2006 and their
corresponding tax declarations issued in April 2006; receipts dated 23
February 2005 from the Salvation Army in the U.S. acknowledging
donation of items from petitioner's family; March 2006 e-mail to the U.S.
Postal Service confirming request for change of address; final statement
from the First American Title Insurance Company showing sale of their
U.S. home on 27 April 2006; 12 July 2011 filled-up questionnaire
submitted to the U.S. Embassy where petitioner indicated that she had
been a Philippine resident since May 2005; affidavit from Jesusa Sonora
Poe (attesting to the return of petitioner on 24 May 2005 and that she and
her family stayed with affiant until the condominium was purchased); and
Affidavit from petitioner's husband (confirming that the spouses jointly
decided to relocate to the Philippines in 2005 and that he stayed behind
in the U.S. only to finish some work and to sell the family home).
The foregoing evidence were undisputed and the facts were even listed
by the COMELEC, particularly in its Resolution in the Tatad, Contreras
and Valdez cases.
However, the COMELEC refused to consider that petitioner's domicile
had been timely changed as of 24 May 2005. At the oral arguments,
COMELEC Commissioner Arthur Lim conceded the presence of the first
two requisites, namely, physical presence and animus manendi, but
maintained there was no animus non-revertendi.  The COMELEC
154
disregarded the import of all the evidence presented by petitioner on the
basis of the position that the earliest date that petitioner could have
started residence in the Philippines was in July 2006 when her
application under R.A. No. 9225 was approved by the BI. In this regard,
COMELEC relied on Coquilla v. COMELEC,  Japzon v.
155
COMELEC  and Caballero v. COMELEC.   During the oral arguments,
156 157
the private respondents also added Reyes v. COMELEC.  Respondents
158
contend that these cases decree that the stay of an alien former Filipino
cannot be counted until he/she obtains a permanent resident visa or
reacquires Philippine citizenship, a visa-free entry under
a balikbayan stamp being insufficient. Since petitioner was still an
American (without any resident visa) until her reacquisition of citizenship
under R.A. No. 9225, her stay from 24 May 2005 to 7 July 2006 cannot
be counted.
But as the petitioner pointed out, the facts in these four cases are very
different from her situation. In Coquilla v. COMELEC,  the only evidence
159
presented was a community tax certificate secured by the candidate and
his declaration that he would be running in the elections. Japzon v.
COMELEC  did not involve a candidate who wanted to count residence
160
prior to his reacquisition of Philippine citizenship. With the Court
decreeing that residence is distinct from citizenship, the issue there was
whether the candidate's acts after reacquisition sufficed to establish
residence. In Caballero v. COMELEC,   the candidate admitted that his
161
place of work was abroad and that he only visited during his frequent
vacations. In Reyes v. COMELEC,  the candidate was found to be an
162
American citizen who had not even reacquired Philippine citizenship
under R.A. No. 9225 or had renounced her U.S. citizenship. She was
disqualified on the citizenship issue. On residence, the only proof she
offered was a seven-month stint as provincial officer. The COMELEC,
quoted with approval by this Court, said that "such fact alone is not
sufficient to prove her one-year residency."
It is obvious that because of the sparse evidence on residence in the four
cases cited by the respondents, the Court had no choice but to hold that
residence could be counted only from acquisition of a permanent resident
visa or from reacquisition of Philippine citizenship. In contrast, the
evidence of petitioner is overwhelming and taken together leads to no
other conclusion that she decided to permanently abandon her U.S.
residence (selling the house, taking the children from U.S. schools,
getting quotes from the freight company, notifying the U.S. Post Office of
the abandonment of their address in the U.S., donating excess items to
the Salvation Army, her husband resigning from U.S. employment right
after selling the U.S. house) and permanently relocate to the Philippines
and actually re-established her residence here on 24 May 2005 (securing
T.I.N, enrolling her children in Philippine schools, buying property here,
constructing a residence here, returning to the Philippines after all trips
abroad, her husband getting employed here). Indeed, coupled with her
eventual application to reacquire Philippine citizenship and her family's
actual continuous stay in the Philippines over the years, it is clear that
when petitioner returned on 24 May 2005 it was for good.
In this connection, the COMELEC also took it against petitioner that she
had entered the Philippines visa-free as a balikbayan. A closer look at
R.A. No. 6768 as amended, otherwise known as the "An Act Instituting a
Balikbayan Program," shows that there is no overriding intent to
treat balikbayans as temporary visitors who must leave after one year.
Included in the law is a former Filipino who has been naturalized abroad
and "comes or returns to the Philippines."   The law institutes
163
a balikbayan program "providing the opportunity to avail of the necessary
training to enable the balikbayan to become economically self-reliant
members of society upon their return to the country" in line with the
164
government's "reintegration program."  Obviously, balikbayans are not
165
ordinary transients.
Given the law's express policy to facilitate the return of a balikbayan and
help him reintegrate into society, it would be an unduly harsh conclusion
to say in absolute terms that the balikbayan must leave after one year.
That visa-free period is obviously granted him to allow him to re-establish
his life and reintegrate himself into the community before he attends to
the necessary formal and legal requirements of repatriation. And that is
exactly what petitioner did - she reestablished life here by enrolling her
children and buying property while awaiting the return of her husband and
then applying for repatriation shortly thereafter.
No case similar to petitioner's, where the former Filipino's evidence of
change in domicile is extensive and overwhelming, has as yet been
decided by the Court. Petitioner's evidence of residence is
unprecedented. There is no judicial precedent that comes close to the
facts of residence of petitioner. There is no indication in Coquilla v.
COMELEC,  and the other cases cited by the respondents that the Court
166
intended to have its rulings there apply to a situation where the facts are
different. Surely, the issue of residence has been decided particularly on
the facts-of-the case basis.
To avoid the logical conclusion pointed out by the evidence of residence
of petitioner, the COMELEC ruled that petitioner's claim of residence of
ten (10) years and eleven (11) months by 9 May 2016 in her 2015 COC
was false because she put six ( 6) years and six ( 6) months as "period of
residence before May 13, 2013" in her 2012 COC for Senator. Thus,
according to the COMELEC, she started being a Philippine resident only
in November 2006. In doing so, the COMELEC automatically assumed as
true the statement in the 2012 COC and the 2015 COC as false.
As explained by petitioner in her verified pleadings, she misunderstood
the date required in the 2013 COC as the period of residence as of the
day she submitted that COC in 2012. She said that she reckoned
residency from April-May 2006 which was the period when the U.S.
house was sold and her husband returned to the Philippines. In that
regard, she was advised by her lawyers in 2015 that residence could be
counted from 25 May 2005.
Petitioner's explanation that she misunderstood the query in 2012 (period
of residence before 13 May 2013) as inquiring about residence as of the
time she submitted the COC, is bolstered by the change which the
COMELEC itself introduced in the 2015 COC which is now "period of
residence in the Philippines up to the day before May 09, 2016." The
COMELEC would not have revised the query if it did not acknowledge
that the first version was vague.
That petitioner could have reckoned residence from a date earlier than
the sale of her U.S. house and the return of her husband is plausible
given the evidence that she had returned a year before. Such evidence,
to repeat, would include her passport and the school records of her
children.
It was grave abuse of discretion for the COMELEC to treat the 2012 COC
as a binding and conclusive admission against petitioner. It could be
given in evidence against her, yes, but it was by no means conclusive.
There is precedent after all where a candidate's mistake as to period of
residence made in a COC was overcome by evidence. In Romualdez-
Marcos v. COMELEC,  the candidate mistakenly put seven (7) months
167
as her period of residence where the required period was a minimum of
one year. We said that "[i]t is the fact of residence, not a statement in a
certificate of candidacy which ought to be decisive in determining
whether or not an individual has satisfied the constitutions residency
qualification requirement." The COMELEC ought to have looked at the
evidence presented and see if petitioner was telling the truth that she was
in the Philippines from 24 May 2005. Had the COMELEC done its duty, it
would have seen that the 2012 COC and the 2015 COC both correctly
stated the pertinent period of residency.
The COMELEC, by its own admission, disregarded the evidence that
petitioner actually and physically returned here on 24 May 2005 not
because it was false, but only because COMELEC took the position that
domicile could be established only from petitioner's repatriation under
R.A. No. 9225 in July 2006. However, it does not take away the fact that
in reality, petitioner had returned from the U.S. and was here to stay
permanently, on 24 May 2005. When she claimed to have been a
resident for ten (10) years and eleven (11) months, she could do so in
good faith.
For another, it could not be said that petitioner was attempting to hide
anything. As already stated, a petition for quo warranto had been filed
against her with the SET as early as August 2015. The event from which
the COMELEC pegged the commencement of residence, petitioner's
repatriation in July 2006 under R.A. No. 9225, was an established fact to
repeat, for purposes of her senatorial candidacy.
Notably, on the statement of residence of six (6) years and six (6) months
in the 2012 COC, petitioner recounted that this was first brought up in the
media on 2 June 2015 by Rep. Tobias Tiangco of the United Nationalist
Alliance. Petitioner appears to have answered the issue immediately,
also in the press. Respondents have not disputed petitioner's evidence
on this point. From that time therefore when Rep. Tiangco discussed it in
the media, the stated period of residence in the 2012 COC and the
circumstances that surrounded the statement were already matters of
public record and were not hidden.
Petitioner likewise proved that the 2012 COC was also brought up in the
SET petition for quo warranto. Her Verified Answer, which was filed on 1
September 2015, admitted that she made a mistake in the 2012 COC
when she put in six ( 6) years and six ( 6) months as she misunderstood
the question and could have truthfully indicated a longer period. Her
answer in the SET case was a matter of public record. Therefore, when
petitioner accomplished her COC for President on 15 October 2015, she
could not be said to have been attempting to hide her erroneous
statement in her 2012 COC for Senator which was expressly mentioned
in her Verified Answer.
The facts now, if not stretched to distortion, do not show or even hint at
an intention to hide the 2012 statement and have it covered by the 2015
representation. Petitioner, moreover, has on her side this Court's
pronouncement that:
Concededly, a candidate's disqualification to run for public office does not
necessarily constitute material misrepresentation which is the sole
ground for denying due course to, and for the cancellation of, a COC.
Further, as already discussed, the candidate's misrepresentation in his
COC must not only refer to a material fact (eligibility and qualifications for
elective office), but should evince a deliberate intent to mislead,
misinform or hide a fact which would otherwise render a candidate
ineligible. It must be made with an intention to deceive the electorate as
to one's qualifications to run for public office.
168
In sum, the COMELEC, with the same posture of infallibilism, virtually
ignored a good number of evidenced dates all of which can
evince animus manendi to the Philippines and animus non revertedi to
the United States of America. The veracity of the events of coming and
staying home was as much as dismissed as inconsequential, the focus
having been fixed at the petitioner's "sworn declaration in her COC for
Senator" which the COMELEC said "amounts to a declaration and
therefore an admission that her residence in the Philippines only
commence sometime in November 2006"; such that "based on this
declaration, [petitioner] fails to meet the residency requirement for
President." This conclusion, as already shown, ignores the standing
jurisprudence that it is the fact of residence, not the statement of the
person that determines residence for purposes of compliance with the
constitutional requirement of residency for election as President. It
ignores the easily researched matter that cases on questions of
residency have been decided favorably for the candidate on the basis of
facts of residence far less in number, weight and substance than that
presented by petitioner.  It ignores, above all else, what we consider as
169
a primary reason why petitioner cannot be bound by her declaration in
her COC for Senator which declaration was not even considered by the
SET as an issue against her eligibility for Senator. When petitioner made
the declaration in her COC for Senator that she has been a resident for a
period of six (6) years and six (6) months counted up to the 13 May 2013
Elections, she naturally had as reference the residency requirements for
election as Senator which was satisfied by her declared years of
residence. It was uncontested during the oral arguments before us that at
the time the declaration for Senator was made, petitioner did not have as
yet any intention to vie for the Presidency in 2016 and that the general
public was never made aware by petitioner, by word or action, that she
would run for President in 2016. Presidential candidacy has a length-of-
residence different from that of a senatorial candidacy. There are facts of
residence other than that which was mentioned in the COC for Senator.
Such other facts of residence have never been proven to be false, and
these, to repeat include:
[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's]
husband however stayed in the USA to finish pending projects and
arrange the sale of their family home.
Meanwhile [petitioner] and her children lived with her mother in San Juan
City. [Petitioner] enrolled Brian in Beacon School in Taguig City in 2005
and Hanna in Assumption College in Makati City in 2005. Anika was
enrolled in Learning Connection in San Juan in 2007, when she was
already old enough to go to school.
In the second half of 2005, [petitioner] and her husband acquired Unit 7F
of One Wilson Place Condominium in San Juan. [Petitioner] and her
family lived in Unit 7F until the construction of their family home in
Corinthian Hills was completed.
Sometime in the second half of 2005, [petitioner's] mother discovered
that her former lawyer who handled [petitioner's] adoption in 1974 failed
to secure from the Office of the Civil Registrar of Iloilo a new Certificate of
Live Birth indicating [petitioner's] new name and stating that her parents
are "Ronald Allan K. Poe" and "Jesusa L. Sonora."
In February 2006, [petitioner] travelled briefly to the US in order to
supervise the disposal of some of the family's remaining household
belongings.  [Petitioner] returned to the Philippines on 11 March 2006.
1a\^/phi1
In late March 2006, [petitioner's] husband informed the United States
Postal Service of the family's abandonment of their address in the US.
The family home in the US was sole on 27 April 2006.
In April 2006, [petitioner's] husband resigned from his work in the US. He
returned to the Philippines on 4 May 2006 and began working for a
Philippine company in July 2006.
In early 2006, [petitioner] and her husband acquired a vacant lot in
Corinthian Hills, where they eventually built their family home. 170
In light of all these, it was arbitrary for the COMELEC to satisfy its
intention to let the case fall under the exclusive ground of false
representation, to consider no other date than that mentioned by
petitioner in her COC for Senator.
All put together, in the matter of the citizenship and residence of
petitioner for her candidacy as President of the Republic, the questioned
Resolutions of the COMELEC in Division and En Banc are, one and all,
deadly diseased with grave abuse of discretion from root to fruits.
WHEREFORE, the petition is GRANTED. The Resolutions, to wit:
1. dated 1 December 2015 rendered through the COMELEC Second
Division, in SPA No. 15-001 (DC), entitled Estrella C. Elamparo,
petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent, stating that:
[T]he Certificate of Candidacy for President of the Republic of the
Philippines in the May 9, 2016 National and Local Elections filed by
respondent Mary Grace Natividad Sonora Poe-Llamanzares is hereby
GRANTED.

2. dated 11 December 2015, rendered through the COMELEC First

Division, in the consolidated cases SPA No. 15-002 (DC)
entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora
Poe-Llamanzares, respondent; SPA No. 15-007 (DC) entitled Antonio P.
Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D.
Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent; stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it

hereby RESOLVES, to GRANT the petitions and cancel the Certificate of
Candidacy of MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES for the elective position of President of the Republic of
the Philippines in connection with the 9 May 2016 Synchronized Local
and National Elections.

3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1

December 2015 Resolution of the Second Division stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it

hereby RESOLVES, to DENY the Verified Motion for Reconsideration of
SENATOR MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES.
The Resolution dated 11 December 2015 of the Commission First
Division is AFFIRMED.

4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11

December 2015 Resolution of the First Division.

are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE

NATIVIDAD SONORA POE-LLAMANZARES is DECLARED
QUALIFIED to be a candidate for President in the National and Local
Elections of 9 May 2016.

SO ORDERED.