G.R. No. 179271 July 8, 2009 C.

The Court declared as unconstitutional the 2% threshold only in relation to the

distribution of additional seats as found in the second clause of Section 11(b) of R.A.
BARANGAY ASSOCIATION FOR NATIONAL ADVANCEMENT AND TRANSPARENCY No. 7941. Yet, it distributed first seats to party-list groups which did not attain the
(BANAT), Petitioner, minimum number of votes that will entitle them to one seat. Clarification is, therefore,
vs. sought whether the term "additional seats" refer to 2nd and 3rd seats only or all
COMMISSION ON ELECTIONS (sitting as the National Board of Canvassers), Respondent. remaining available seats. Corollary thereto, the House of Representatives wishes to be
ARTS BUSINESS AND SCIENCE PROFESSIONALS, Intervenor. clarified whether there is no more minimum vote requirement to qualify as a party-list
AANGAT TAYO, Intervenor. representative.
COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE PHILIPPINES, INC.
(SENIOR CITIZENS), Intervenor. D. For the guidance of the House of Representatives, clarification is sought as to
whether the principle laid down in Veterans that "the filling up of the allowable seats for
x - - - - - - - - - - - - - - - - - - - - - - -x party-list representatives is not mandatory," has been abandoned.1

G.R. No. 179295
BAYAN MUNA, ADVOCACY FOR TEACHER EMPOWERMENT THROUGH ACTION,
COOPERATION AND HARMONY TOWARDS EDUCATIONAL REFORMS, INC., and
ABONO, Petitioners,
vs.
COMMISSION ON ELECTIONS, Respondent.
RESOLUTION
CARPIO, J.:
The House of Representatives, represented by Speaker Prospero C. Nograles, filed a motion
for leave to intervene in G.R. Nos. 179271 and 179295. The House of Representatives filed a
motion for clarification in intervention and enumerated the issues for clarification as follows:
A. There are only 219 legislative districts and not 220. Accordingly, the alloted seats for
party-list representation should only be 54 and not 55. The House of Representatives
seeks clarification on which of the party-list representatives shall be admitted to the Roll
of Members considering that the Court declared as winners 55 party-list representatives.
B. The House of Representatives wishes to be guided on whether it should enroll in its
Roll of Members the 32 named party-list representatives enumerated in Table 3 or only
such number of representatives that would complete the 250 member maximum
prescribed by Article VI, Sec. 5(1) of the Constitution. In the event that it is ordered to
admit all 32, will this act not violate the above-cited Constitutional provision considering
that the total members would now rise to 270.
On the other hand, Armi Jane Roa-Borje (Roa-Borje), third nominee of Citizens’ Battle Against
Corruption (CIBAC), filed a motion for leave for partial reconsideration-in-intervention, alleging
that:
The Supreme Court, in ruling on the procedure for distribution of seats, has deprived without
due process and in violation of the equal protection clause, parties with more significant
constituencies, such as CIBAC, Gabriela and APEC, in favor of parties who did not even meet
the 2% threshold.2
Following the Court’s Decision of 21 April 2009, the Commission on Elections (COMELEC)
submitted to this Court on 27 April 2009 National Board of Canvassers (NBC) Resolution No.
09-001. NBC Resolution No. 09-001 updated the data used by this Court in its Decision of 21
April 2009. The total votes for party-list is now 15,723,764 following the cancellation of the
registration of party-list group Filipinos for Peace, Justice and Progress Movement (FPJPM).
Moreover, the total number of legislative districts is now 219 following the annulment of Muslim
Mindanao Autonomy Act No. 201 creating the province of Shariff Kabunsuan. Thus, the
percentage and ranking of the actual winning party-list groups are different from Table 3 of the
Decision in G.R. Nos. 179271 and 179295.
The Number of Members of the House of Representatives
in the 2007 Elections
Section 5(1), Article VI of the 1987 Constitution reads:
The House of Representatives shall be composed of not more than two hundred and fifty
members, unless otherwise fixed by law, who shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with
the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, Thus, for purposes of the 2007 elections, there were only 219 district representatives. Navotas
and those who, as provided by law, shall be elected through a party-list system of registered City became a separate district on 24 June 2007, more than a month after the 14 May 2007
national, regional, and sectoral parties or organizations. (Emphasis supplied) elections.

The 1987 Constitution fixes the maximum number of members of the House of Representatives The Number of Party-List Seats
at 250. However, the 1987 Constitution expressly allows for an increase in the number of in the 2007 Elections
members of the House of Representatives provided a law is enacted for the purpose. This is
clear from the phrase "unless otherwise provided by law" in Section 5(1), Article VI of the Section 5(2), Article VI of the 1987 Constitution reads in part:
1987 Constitution. The Legislature has the option to choose whether the increase in the number
of members of the House of Representatives is done by piecemeal legislation or by enactment The party-list representatives shall constitute twenty per centum of the total number of
of a law authorizing a general increase. Legislation that makes piecemeal increases of the representatives including those under the party-list. x x x
number of district representatives is no less valid than legislation that makes a general increase.
The 1987 Constitution fixes the ratio of party-list representatives to district representatives. This
In 1987, there were only 200 legislative districts. Twenty legislative districts were added by ratio automatically applies whenever the number of district representatives is increased by law.
piecemeal legislation after the ratification of the 1987 Constitution: The mathematical formula for determining the number of seats available to party-list
representatives is
Republic Act Year Signed Legislative District
into Law
1 7160 1992 Biliran Number of seats available
2 7675 1994 Mandaluyong City to legislative districts Number of seats available to
x .20 =
3 7854 1994 Makati (2nd District) party-list representatives
4 7878 1995 Apayao .80
5 7896 and 7897 1995 Guimaras
6 7926 1995 Muntinlupa City As we stated in our Decision of 21 April 2009, "[t]his formula allows for the corresponding
7 8470 1998 Compostela Valley increase in the number of seats available for party-list representatives whenever a
8 8487 1998 Taguig City (2nd District) legislative district is created by law." Thus, for every four district representatives, the 1987
9 8526 1998 Valenzuela City (2nd District) Constitution mandates that there shall be one party-list representative. There is no need for
10 9229 2003 Parañaque (2nd District) legislation to create an additional party-list seat whenever four additional legislative districts are
11 9230 2003 San Jose del Monte City created by law. Section 5(2), Article VI of the 1987 Constitution automatically creates such
12 8508 and 9232 1998 and 2003 Antipolo (1st District) additional party-list seat.
13 9232 2003 Antipolo (2nd District)
14 9269 2004 Zamboanga City (2nd District) We use the table below to illustrate the relationship between the number of legislative districts
15 9355 2006 Dinagat Island and the number of party-list seats for every election year after 1987.
16 9357 2006 Sultan Kudarat (2nd District)
17 9360 2006 Zamboanga Sibugay (2nd District) Election Number of Number of Total Number of Members
18 9364 2006 Marikina City (2nd District) Year Legislative Party-List of the House of
19 9371 2007 Cagayan de Oro (2nd District) Districts Seats Representatives
20 9387 2007 Navotas City 1992 200 50 250
1995 206 51 257
 New Districts: (assuming no
Biliran additional districts
Mandaluyong City are created)
Makati (2nd District)
Apayao We see that, as early as the election year of 1995, the total number of members of the House
Guimaras of Representatives is already beyond the initial maximum of 250 members as fixed in the 1987
Muntinlupa City Constitution.
1998 209 52 261
New Districts: Any change in the number of legislative districts brings a corresponding change in the number
Compostela Valley of party-list seats. However, the increase in the number of members of the House of
Taguig City (2nd Representatives went unnoticed as the available seats for party-list representatives have never
District) been filled up before. As of the oral arguments in G.R. Nos. 179271 and 179295, there were
Valenzuela City (2nd 220 legislative districts. Fifty-five party-list seats were thus allocated. However, the number of
District) legislative districts was subsequently reduced to 219 with our ruling on 16 July 2008 declaring
2001 209 52 261 void the creation of the Province of Sharif Kabunsuan.3 Thus, in the 2007 elections, the number
2004 214 53 267 of party-list seats available for distribution should be correspondingly reduced from 55 to 54.
New Districts:
Parañaque City (2nd The filling-up of all available party-list seats is not mandatory. Actual occupancy of the party-list
District) seats depends on the number of participants in the party-list election. If only ten parties
San Jose del Monte participated in the 2007 party-list election, then, despite the availability of 54 seats, the maximum
City possible number of occupied party-list seats would only be 30 because of the three-seat cap. In
Antipolo (1st District) such a case, the three-seat cap prevents the mandatory allocation of all the 54 available seats.
Antipolo (2nd
District)
Under Section 11(b) of R.A. No. 7941, garnering 2% of the total votes cast guarantees a party
Zamboanga City
one seat. This 2% threshold for the first round of seat allocation does not violate any provision
(2nd District)
of the 1987 Constitution. Thus, the Court upholds this 2% threshold for the guaranteed seats as
2007 219 54 273
a valid exercise of legislative power.
New Districts:
1avvphi1

Dinagat Island
In the second round allocation of additional seats, there is no minimum vote requirement to
Sultan Kudarat (2nd
obtain a party-list seat because the Court has struck down the application of the 2% threshold
District)
in the allocation of additional seats. Specifically, the provision in Section 11(b) of the Party-List
Zamboanga
Act stating that "those garnering more than two percent (2%) of the votes shall be entitled to
Sibugay (2nd
additional seats in the proportion to their total number of votes" can no longer be given any
District)
effect. Otherwise, the 20 percent party-list seats in the total membership of the House of
Marikina City (2nd
Representatives as provided in the 1987 Constitution will mathematically be impossible to fill up.
District)
Cagayan de Oro
(2nd District) However, a party-list organization has to obtain a sufficient number of votes to gain a seat in the
2010 220 55 275 second round of seat allocation. What is deemed a sufficient number of votes is dependent upon
New District: the circumstances of each election, such as the number of participating parties, the number of
Navotas City available party-list seats, and the number of parties with guaranteed seats received in the first
round of seat allocation. To continue the example above, if only ten parties participated in the the same as in NBC No. 09-001. Our modification of the COMELEC’s computation in NBC No.
2007 party-list election and each party received only one thousand votes, then each of the ten 09-001 is shown below:
parties would receive 10% of the votes cast. All are guaranteed one seat, and are further entitled
to receive two more seats in the second round of seat allocation. Ran Party Votes Votes Guarantee Addition (B) Applyin
k Garnere Garnere d Seat al plus g the
Similarly, a presidential candidate may win the elections even if he receives only one thousand d d over (First Seats (C), in three
votes as long as all his opponents receive less than one thousand votes. A winning presidential Total Round) (Second whole seat cap
candidate only needs to receive more votes than his opponents. The same policy applies in Votes (B) Round) integer (E)
every election to public office, from the presidential to the barangay level. Except for the for Party (C) s
guaranteed party-list seat, there is no minimum vote requirement before a candidate in any List, in (D)
election, for any elective office, can be proclaimed the winner. Of course, the winning candidate %
must receive at least one vote, assuming he has no opponents or all his opponents do not (A)
receive a single vote. 1 BUHAY 1,169,33 7.44% 1 2.68 3 N.A.
8
In the absence of a minimum vote requirement in the second round of party-list seat allocation, 2 BAYAN 979,189 6.23% 1 2.24 3 N.A.
there is no need to belabor the disparity between the votes obtained by the first and last ranked MUNA
winning parties in the 2007 party-list elections. In the same manner, no one belabors the 3 CIBAC 755,735 4.81% 1 1.73 2 N.A.
disparity between the votes obtained by the highest and lowest ranked winners in the senatorial 4 GABRIELA 621,266 3.95% 1 1.42 2 N.A.
elections. However, for those interested in comparing the votes received by party-list 5 APEC 619,733 3.94% 1 1.42 2 N.A.
representatives vis-a-vis the votes received by district representatives, the 162,678 votes cast 6 A Teacher 490,853 3.12% 1 1.12 2 N.A.
in favor of TUCP, the last party to obtain a party-list seat, is significantly higher than the votes 7 AKBAYAN 466,448 2.97% 1 1.07 2 N.A.
received by 214 of the 218 elected district representatives.4 85 ALAGAD 423,165 2.69% 1 1 2 N.A.
9 COOP- 409,987 2.61% 1 1 2 N.A.
The Actual Number of Party-List Representatives NATCCO
in the 2007 Elections 10 BUTIL 409,168 2.60% 1 1 2 N.A.
11 BATAS 385,956 2.45% 1 1 2 N.A.
The data used in Table 3 of our Decision promulgated on 21 April 2009 was based on the 12 ARC 374,349 2.38% 1 1 2 N.A.
submissions of the parties. We used the figures from Party-List Canvass Report No. 32, as of 13 ANAKPAWI 370,323 2.36% 1 1 2 N.A.
6:00 p.m. of 31 August 2007. The NBC issued NBC Report No. 33 on 11 June 2008, updating S
the 31 August 2007 report. The parties did not furnish this Court with a copy of NBC Report 14 AMIN 347,527 2.21% 1 1 2 N.A.
No. 33. In any case, we stated in the dispositive portion of our Decision that "[t]he allocation of 15 ABONO 340,002 2.16% 1 1 2 N.A.
additional seats under the Party-List System shall be in accordance with the procedure used 16 YACAP 331,623 2.11% 1 1 2 N.A.
in Table 3 of this decision." Party-List Canvass Report No. 32 is not part of the procedure. 1avvphi1

17 AGAP 328,814 2.09% 1 1 2 N.A.

18 AN WARAY 321,516 2.04% 1 1 2 N.A.
The computation of the COMELEC in NBC No. 09-001 applying the procedure laid down in our 19 UNI-MAD 251,804 1.60% 0 1 1 N.A.
Decision requires correction for purposes of accuracy. Instead of multiplying the percentage of 20 ABS 235,152 1.50% 0 1 1 N.A.
votes garnered over the total votes for party-list by 36, the COMELEC multiplied the percentage 21 ALIF 229,267 1.46% 0 1 1 N.A.
by 37. Thirty-six is the proper multiplier as it is the difference between 54, the number of available 22 KAKUSA 229,036 1.46% 0 1 1 N.A.
party-list seats, and 18, the number of guaranteed seats. Only the figures in column (C) are 23 KABATAAN 228,700 1.45% 0 1 1 N.A.
affected. The allocation of seats to the winning party-list organizations, however, remains 24 ABA-AKO 219,363 1.40% 0 1 1 N.A.
 25 SENIOR 213,095 1.36% 0 1 1 N.A. allocation to determine the ranking of parties. Thus, for purposes of the second step in the
CITIZENS second round of seat allocation,7 TUCP has a higher rank than CIBAC.
26 AT 200,030 1.27% 0 1 1 N.A.
27 VFP 196,358 1.25% 0 1 1 N.A. Roa-Borje’s position stems from the perceived need for absolute proportionality in the allocation
28 ANAD 188,573 1.20% 0 1 1 N.A. of party-list seats. However, the 1987 Constitution does not require absolute proportionality in
29 BANAT 177,068 1.13% 0 1 1 N.A. the allocation of party-list seats. Section 5(1), Article VI of the 1987 Constitution provides:
30 ANG 170,594 1.08% 0 1 1 N.A.
KASANGG (1) The House of Representatives shall be composed of not more than two hundred and fifty
A members, unless otherwise fixed by law, who shall be elected from legislative districts
31 BANTAY 169,869 1.08% 0 1 1 N.A. apportioned among the provinces, cities, and the Metropolitan Manila area in accordance
32 ABAKADA 166,897 1.06% 0 1 1 N.A. with the number of their respective inhabitants, and on the basis of a uniform and
33 1-UTAK 165,012 1.05% 0 1 1 N.A. progressive ratio, and those who, as provided by law, shall be elected through a party-list
34 TUCP 162,678 1.03% 0 1 1 N.A. system of registered national, regional, and sectoral parties and organizations. (Boldfacing and
35 COCOFED 156,007 0.99% 0 0 0 N.A. italicization supplied)
Tota 18 54
l The phrase "legislative districts apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective inhabitants, and on the basis of
Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS) and Ang Laban ng a uniform and progressive ratio" in Section 5(1) of Article VI requires that legislative
Indiginong Filipino (ALIF) both have pending cases before the COMELEC. The COMELEC districts shall be apportioned according to proportional representation. However, this principle
correctly deferred the proclamation of both BATAS and ALIF as the outcome of their cases may of proportional representation applies only to legislative districts, not to the party-list system.
affect the final composition of party-list representatives. The computation and allocation of seats The allocation of seats under the party-list system is governed by the last phrase of Section 5(1),
may still be modified in the event that the COMELEC decides against BATAS and/or ALIF. which states that the party-list representatives shall be "those who, as provided by law, shall
be elected through a party-list system," giving the Legislature wide discretion in formulating
To address Roa-Borje’s motion for partial reconsideration-in-intervention and for purposes of the allocation of party-list seats. Clearly, there is no constitutional requirement for absolute
computing the results in future party-list elections, we reiterate that in the second step of the proportional representation in the allocation of party-list seats in the House of Representatives.
second round of seat allocation, the preference in the distribution of seats should be in
accordance with the higher percentage and higher rank, without limiting the distribution Section 2, on Declaration of Policy, of R.A. No. 7941 provides that the "State shall promote
proportional representation in the election of representatives to the House of Representatives
to parties receiving two-percent of the votes.6 To limit the distribution of seats to the two- through a party-list system of registered national, regional and sectoral parties or organizations
percenters would mathematically prevent the filling up of all the available party-list seats. or coalitions thereof x x x." However, this proportional representation in Section 2 is qualified by
Section 11(b)8 of the same law which mandates a three-seat cap, which is intended to bar any
single party-list organization from dominating the party-list system. Section 11(b) also qualifies
In the table above, CIBAC cannot claim a third seat from the seat allocated to TUCP, the last
this proportional representation by imposing a two percent cut-off for those entitled to the
ranked party allocated with a seat. CIBAC's 2.81% (from the percentage of 4.81% less the 2%
guaranteed seats. These statutory qualifications are valid because they do not violate the
for its guaranteed seat) has a lower fractional seat value after the allocation of its second seat
Constitution, which does not require absolute proportional representation for the party-list
compared to TUCP's 1.03%. CIBAC's fractional seat after receiving two seats is only 0.03
system.
compared to TUCP's 0.38 fractional seat. Multiplying CIBAC's 2.81% by 37, the additional seats
for distribution in the second round, gives 1.03 seat, leaving 0.03 fractional seat. Multiplying
TUCP's 1.03% by 37 gives a fractional seat of 0.38, higher than CIBAC's fractional seat of 0.03. To summarize, there are four parameters in a Philippine-style party-list election system:
The fractional seats become material only in the second step of the second round of seat
 1. Twenty percent of the total number of the membership of the House of
Representatives is the maximum number of seats available to party-list organizations,
such that there is automatically one party-list seat for every four existing legislative
districts.

2. Garnering two percent of the total votes cast in the party-list elections guarantees a
party-list organization one seat. The guaranteed seats shall be distributed in a first round
of seat allocation to parties receiving at least two percent of the total party-list votes.

3. The additional seats, that is, the remaining seats after allocation of the guaranteed
seats, shall be distributed to the party-list organizations including those that received
less than two percent of the total votes. The continued operation of the two percent
threshold as it applies to the allocation of the additional seats is now unconstitutional
because this threshold mathematically and physically prevents the filling up of the
available party-list seats. The additional seats shall be distributed to the parties in a
second round of seat allocation according to the two-step procedure laid down in the
Decision of 21 April 2009 as clarified in this Resolution.

4. The three-seat cap is constitutional. The three-seat cap is intended by the Legislature
to prevent any party from dominating the party-list system. There is no violation of the
Constitution because the 1987 Constitution does not require absolute proportionality for
the party-list system. The well-settled rule is that courts will not question the wisdom of
the Legislature as long as it is not violative of the Constitution.

These four parameters allow the mathematical and practical fulfillment of the Constitutional
provision that party-list representatives shall comprise twenty percent of the members of the
House of Representatives. At the same time, these four parameters uphold as much as possible
the Party-List Act, striking down only that provision of the Party-List Act that could not be
reconciled anymore with the 1987 Constitution.

WHEREFORE, the Court’s Decision of 21 April 2009 in the present case is clarified accordingly.

SO ORDERED.
G.R. No. 181613 November 25, 2009
ROSALINDA A. PENERA, Petitioner,
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 campaign period." These two provisions determine the resolution of this 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.
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.

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
G.R. No. 189698 December 1, 2009
ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners,
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 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.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 Fari v. 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-୶is the equal protection clause.- Moreover, the Court's vision in Fari /i> was
shrouded by the fact that petitioners therein, Fari et al., never posed a direct challenge to the
constitutionality of Section 66 of the OEC. Fari et 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. 179695 December 18, 2008 for 1 year and 6 months, petitioner applied with the COMELEC for the transfer of his registration
record to the said barangay.9 In the meantime, the creation of North Kabuntalan was ratified in
MIKE A. FERMIN, petitioner, a plebiscite on December 30, 2006,10 formally making Barangay Indatuan a component of
vs. Northern Kabuntalan.
COMMISSION ON ELECTIONS and UMBRA RAMIL BAYAM DILANGALEN, respondents.
Thereafter, on January 8, 2007, the COMELEC approved petitioner's application for the transfer
G.R. No. 182369 December 18, 2008 of his voting record and registration as a voter to Precinct 21A of Barangay Indatuan, Northern
Kabuntalan.11 On March 29, 2007, Fermin filed his Certificate of Candidacy (CoC) for mayor of
MIKE A. FERMIN, petitioner, Northern Kabuntalan in the May 14, 2007 National and Local Elections.12
vs.
COMMISSION ON ELECTIONS and UMBRA RAMIL BAYAM DILANGALEN, respondents. On April 20, 2007, private respondent Umbra Ramil Bayam Dilangalen, another mayoralty
candidate, filed a Petition13 for Disqualification [the Dilangalen petition] against Fermin,
DECISION docketed as SPA (PES) No. A07-003 [re-docketed as SPA No. 07-372 before the COMELEC]
with the Office of the Provincial Election Supervisor of Shariff Kabunsuan. The petition alleged
that the petitioner did not possess the period of residency required for candidacy and that he
NACHURA, J.:
perjured himself in his CoC and in his application for transfer of voting record. The pertinent
portions of the petition follow:
These consolidated petitions provide a welcome avenue for the Court to dichotomize, once and
for all, two popular remedies to prevent a candidate from running for an elective position which
1. THE PETITIONER is of legal age, a registered voter, resident and incumbent
are indiscriminately interchanged by the Bench and the Bar, adding confusion to the already
Municipal Mayor of the Municipality of Northern Kabuntalan, holding office
difficult state of our jurisprudence on election laws.
at Barangay Paulino Labio in the Municipality of Northern Kabuntalan where he may be
served summons and other legal processes.
For the Court’s resolution are two petitions for certiorari under Rule 64 in relation to Rule 65 of
the Rules of Court: (1) G.R. No. 179695, which assails the June 29, 2007 Resolution1 of the
2. THE PETITIONER is a candidate for election as Mayor in the same Municipality of
Commission on Elections (COMELEC) 2nd Division in SPA No. 07-372, and the September 20,
Northern Kabuntalan, being a resident of and domiciled in the Municipality since birth.
2007 Resolution2 of the COMELEC En Banc affirming the said division resolution; and (2) G.R.
The Respondent is also a candidate for the same office, Mayor in the same Municipality
No. 182369, which challenges the February 14, 2008 Resolution3 of the COMELEC 1st Division
of Northern Kabuntalan. He is, however, not a resident of the Municipality.
in SPR No. 45-2007, the March 13, 2008 Order4 of the COMELEC En Banc denying petitioner’s
motion for reconsideration, and the March 26, 2008 Entry of Judgment5 issued by the Electoral
Contests and Adjudication Department (ECAD) of the Commission in the said case. 3. THE RESPONDENT perjured himself when he swore to the truth of his statement in
his Certificate of Candidacy of being a resident of the Municipality for the last 38 years,
when in truth and in fact he simply transferred his registration from the Municipality of
The relevant facts and proceedings follow.
Kabuntalan on 13 December 2006, wherein he stated that he has relocated to that
municipality a year and six months earlier, or no earlier than June 2005.
After the creation of Shariff Kabunsuan,6 the Regional Assembly of the Autonomous Region in
Muslim Mindanao (ARMM), on November 22, 2006, passed Autonomy Act No. 2057 creating the
4. THE RESPONDENT perjured himself when he swore to the truth of his statement in
Municipality of Northern Kabuntalan in Shariff Kabunsuan. This new municipality was constituted
his Certificate of Candidacy of being a resident of the Municipality for the last 38 years,
by separating Barangays Balong, Damatog, Gayonga, Guiawa, Indatuan, Kapinpilan, P. Labio,
when in truth and in fact he has stayed for at least 33 years in Barangay Payan,
Libungan, Montay, Sabaken and Tumaguinting from the Municipality of Kabuntalan.8
Municipality [of] Kabunt[a]lan.
Mike A. Fermin, the petitioner in both cases, was a registered voter of Barangay Payan,
Kabuntalan. On December 13, 2006, claiming that he had been a resident of Barangay Indatuan
 5. THE RESPONDENT perjured himself when he swore to the truth of his statement in
his Application for Transfer that he is a resident of Barangay Indatuan on 13 December
2006, wherein he stated that he has relocated to that municipality a year and six months
earlier, or on or about June 2005, when in truth and in fact he has never resided much
less domiciled himself in Indatuan or anywhere else in the Municipality of Northern
Kabuntalan earlier than 14 May 2006.
6. THE RESPONDENT perjured himself when he swore to the truth of his statement in
his Certificate of Candidacy of being a resident of the Municipality for the last 38 years,
when in truth and in fact he has never resided in the Municipality, but was simply visiting
the area whenever election is [f]ast approaching.
WHEREFORE, premises considered, it is most respectfully prayed that, [in
consideration] of the Respondent not possessing the residence required for candidacy,
and having perjured himself in a number of times, the Commission disqualify the
Respondent.14
Elections were held without any decision being rendered by the COMELEC in the said case.
After the counting and canvassing of votes, Dilangalen emerged as the victor with 1,849 votes
over Fermin’s 1,640.15 The latter subsequently filed an election protest (Election Case No. 2007-
022) with the Regional Trial Court (RTC), Branch 13 of Cotabato City.16
G.R. No. 179695
On June 29, 2007, the COMELEC 2nd Division, in SPA No. 07-372, disqualified Fermin for not
being a resident of Northern Kabuntalan.17 It ruled that, based on his declaration that he is a
resident of Barangay Payan as of April 27, 2006 in his oath of office before Datu Andal
Ampatuan, Fermin could not have been a resident of Barangay Indatuan for at least one year.18
The COMELEC En Banc, on September 20, 2007, affirmed the Division's ruling. 19
Thus, petitioner instituted G.R. No. 179695 before this Court raising the following issues:
A.
WHETHER OR NOT THE PETITION TO DISQUALIFY PETITIONER FROM SEEKING
THE MAYORALTY POST OF THE MUNICIPALITY OF NORTHERN KABUNTALAN
SHOULD BE DISMISSED FOR HAVING BEEN FILED OUT OF TIME.
B.
WHETHER OR NOT THE ONE (1) YEAR RESIDENCY REQUIREMENT AS
PROVIDED BY ART. 56, PAR. NO. 3, RULE XIII, RULES AND REGULATIONS
IMPLEMENTING THE LOCAL GOVERNMENT CODE OF THE AUTONOMOUS
REGION IN MUSLIM MINDANAO IS APPLICABLE TO PETITIONER, WHO
TRANSFERRED HIS VOTER'S REGISTRATION RECORD DUE TO CHANGE OF
RESIDENCE FROM BARANGAY PAYAN TO BARANGAY INDATUAN IN THE SAME
MUNICIPALITY OF KABUNTALAN.20
Petitioner contends that the Dilangalen petition is a petition to deny due course to or cancel a
CoC under Section 78 of the Omnibus Election Code (OEC).21 Following Republic Act (R.A.)
No. 6646, the same must be filed within 5 days from the last day for the filing of CoC, which, in
this case, is March 30, 2007, and considering that the said petition was filed by Dilangalen only
on April 20, 2007, the same was filed out of time. The COMELEC should have then dismissed
SPA No. 07-372 outright.22
Petitioner further argues that he has been a resident of Barangay Indatuan long before the
creation of Northern Kabuntalan. This change of residence prompted him to apply for the transfer
of his voter’s registration record from Barangay Payan to Barangay Indatuan. Moreover, the one
year residency requirement under the law is not applicable to candidates for elective office in a
newly created municipality, because the length of residency of all its inhabitants is reckoned
from the effective date of its creation.23
In his comment, private respondent counters that the petition it filed is one for disqualification
under Section 68 of the OEC which may be filed at any time after the last day for filing of the
CoC but not later than the candidate’s proclamation should he win in the elections. As he filed
the petition on April 20, 2007, long before the proclamation of the eventual winning candidate,
the same was filed on time.24
Private respondent likewise posits that petitioner failed to comply with the one-year residency
requirement for him to be able to run for an elective office in Northern Kabuntalan. Petitioner
applied for the transfer of his voting record on December 13, 2006, and this was approved only
on January 8, 2007.25
G.R. No. 182369
During the pendency of G.R. No. 179695 with the Court, Dilangalen filed, on September 27,
2007, with the RTC of Cotabato a motion to dismiss Election Case No. 07-022 on the ground
that Fermin had no legal standing to file the said protest, the COMELEC En Banc having already
affirmed his disqualification as a candidate; and this Court, in the abovementioned case, did not
issue an order restraining the implementation of the assailed COMELEC resolutions.
The RTC, however, denied this motion on September 28, 2007. On motion for reconsideration,
the trial court remained steadfast in its stand that the election protest was separate and distinct
from the COMELEC proceedings, and that, unless restrained by the proper authority, it would
continue hearing the protest.26
Assailing the RTC’s denial of his motions, Dilangalen filed a Petition for Certiorari and
Prohibition27 docketed as SPR No. 45-2007 with the COMELEC. On February 14, 2008, the
COMELEC 1st Division set aside the aforesaid orders of the trial court for having been issued
with grave abuse of discretion, prohibited the said court from acting on and proceeding with the
protest, and ordered it to dismiss the same.28 The COMELEC En Banc, on March 13, 2008,
denied petitioner’s motion for the reconsideration of the division’s ruling on account of Fermin’s
failure to pay the required fees. It further directed the issuance of an entry of judgment in the
said case.29 On March 26, 2008, the ECAD recorded the finality of the ruling in SPR No. 45-
2007 in the Book of Entries of Judgments.30
These developments prompted Fermin to file another certiorari petition before this Court,
docketed as G.R. No. 182369. In this petition, Fermin raises the following issues for our
resolution:
A.
Whether or not public respondent has departed from the accepted and usual course of
its rules of procedure, as to call for an exercise of the power of supervision by the
Honorable Court.
B.
Whether or not public respondent in taking cognizance of the certiorari and prohibition
not in aid of its appellate jurisdiction, acted without or in excess of jurisdiction, or with
grave abuse of discretion amounting to lack or in (sic) excess [of jurisdiction].
C.
Whether or not public respondent, in ordering Judge Ibrahim to dismiss the election
protest case, acted without or in excess of jurisdiction, or with grave abuse of discretion
amounting to lack or in (sic) excess of jurisdiction.
D.
Whether or not public respondent, in not uniformly observing its process in the service
of its resolution and/or order, had denied to petitioner the equal protection of the law.
E.
Whether or not the petition for certiorari and prohibition is dismissible in view of the
pendency of another action and whereby the result of the first action is determinative of
the second action in any event and regardless of which party is successful.
F.
Whether or not there is forum shopping.
G.
Whether or not the public respondent, acting not in aid of its appellate jurisdiction, has
authority to issue TRO and/or Preliminary Injunction as ancillary remedy of the original
action for certiorari and prohibition.
H.
Whether or not public respondent has jurisdiction to divest the Court of Judge Ibrahim
of its jurisdiction on the election protest case.31
The Court, on April 29, 2008, initially dismissed the said petition.32 Fermin subsequently filed in
succession his motions for reconsideration and for the consolidation of G.R. Nos. 179695 &
182369. Considering that the two petitions were interrelated, the Court resolved to consolidate
them.
The Issues
The primordial issues in these consolidated cases may be encapsulated, as follows:
(1) Whether or not the Dilangalen petition is one under Section 68 or Section 78 of the OEC;
(2) Whether or not it was filed on time;
(3) Whether or not the COMELEC gravely abuse its discretion when it declared petitioner as not
a resident of the locality for at least one year prior to the May 14, 2007 elections; and
(4) Whether or not the COMELEC gravely abuse its discretion when it ordered the dismissal of
Election Case No. 07-022 on the ground that Fermin had no legal standing to file the protest.
Our Ruling
I.
Pivotal in the ascertainment of the timeliness of the Dilangalen petition is its proper
characterization.
As aforesaid, petitioner, on the one hand, argues that the Dilangalen petition was filed pursuant
to Section 78 of the OEC; while private respondent counters that the same is based on Section
68 of the Code.
After studying the said petition in detail, the Court finds that the same is in the nature of a petition
to deny due course to or cancel a CoC under Section 7833 of the OEC. The petition contains the
essential allegations of a "Section 78" petition, namely: (1) the candidate made a representation
in his certificate; (2) the representation pertains to a material matter which would affect the
substantive rights of the candidate (the right to run for the election for which he filed his
certificate); and (3) the candidate made the false representation with the intention to deceive the
electorate as to his qualification for public office or deliberately attempted to mislead, misinform,
or hide a fact which would otherwise render him ineligible.34 It likewise appropriately raises a
question on a candidate’s eligibility for public office, in this case, his possession of the one-year
residency requirement under the law.
Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based
on the lack of qualifications but on a finding that the candidate made a material representation
that is false, which may relate to the qualifications required of the public office he/she is running
for. It is noted that the candidate states in his/her CoC that he/she is eligible for the office he/she
seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional35 and
statutory36 provisions on qualifications or eligibility for public office. If the candidate
subsequently states a material representation in the CoC that is false, the COMELEC,
following the law, is empowered to deny due course to or cancel such certificate.37 Indeed,
the Court has already likened a proceeding under Section 78 to a quo warranto proceeding
under Section 25338 of the OEC since they both deal with the eligibility or qualification of a
candidate,39 with the distinction mainly in the fact that a "Section 78" petition is filed before
proclamation, while a petition for quo warranto is filed after proclamation of the wining candidate.
At this point, we must stress that a "Section 78" petition ought not to be interchanged or confused
with a "Section 68" petition. They are different remedies, based on different grounds, and
resulting in different eventualities. Private respondent’s insistence, therefore, that the petition
it filed before the COMELEC in SPA No. 07-372 is in the nature of a disqualification case under
Section 68, as it is in fact captioned a "Petition for Disqualification," does not persuade the Court.
The ground raised in the Dilangalen petition is that Fermin allegedly lacked one of the
qualifications to be elected as mayor of Northern Kabuntalan, i.e., he had not established
residence in the said locality for at least one year immediately preceding the election. Failure to
meet the one-year residency requirement for the public office is not a ground for the
"disqualification" of a candidate under Section 68. The provision only refers to the commission
of prohibited acts and the possession of a permanent resident status in a foreign country as
grounds for disqualification, thus:
SEC. 68. Disqualifications.–Any candidate who, in an action or protest in which he is a
party is declared by final decision of a competent court guilty of, or found by the
Commission of having (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign
an amount in excess of that allowed by this Code; (d) solicited, received or made any
contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of
Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, 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 a permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the election laws.
Likewise, the other provisions of law referring to "disqualification" do not include the lack of the
one-year residency qualification as a ground therefor, thus:
Sections 12 of the OEC
SEC. 12. Disqualifications.–Any person who has been declared by competent
authority insane or incompetent, or has been sentenced by final judgment for
subversion, insurrection, rebellion, or for any offense for which he has been
sentenced to a penalty of more than eighteen months or for a crime involving
moral turpitude, shall be disqualified to be a candidate and to hold any office,
unless he has been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed
removed upon the declaration by competent authority that said insanity or
 incompetence had been removed or after the expiration of a period of five years
from his service or sentence, unless within the same period he again becomes
disqualified.
Section 40 of the Local Government Code (LGC)40
SECTION 40. Disqualifications–The following persons are disqualified from
running for any elective local position:
(a) Those sentence by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance
to the Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired
the right to reside abroad and continue to avail of the same right after
the effectivity of this Code; and
(g) The insane or feeble-minded.
Considering that the Dilangalen petition does not state any of these grounds for disqualification,
it cannot be categorized as a "Section 68" petition.
To emphasize, a petition for disqualification, on the one hand, can be premised on Section 12
or 68 of the OEC, or Section 40 of the LGC. On the other hand, a petition to deny due course to
or cancel a CoC can only be grounded on a statement of a material representation in the said
certificate that is false. The petitions also have different effects. While a person who is
disqualified under Section 68 is merely prohibited to continue as a candidate, the person whose
certificate is cancelled or denied due course under Section 78 is not treated as a candidate at
all, as if he/she never filed a CoC. Thus, in Miranda v. Abaya,41 this Court made the distinction
that a candidate who is disqualified under Section 68 can validly be substituted under Section
77 of the OEC because he/she remains a candidate until disqualified; but a person whose CoC
has been denied due course or cancelled under Section 78 cannot be substituted because
he/she is never considered a candidate.42
In support of his claim that he actually filed a "petition for disqualification" and not a "petition to
deny due course to or cancel a CoC," Dilangalen takes refuge in Rule 25 of the COMELEC
Rules of Procedure,43 specifically Section 144 thereof, to the extent that it states, "[a]ny candidate
who does not possess all the qualifications of a candidate as provided for by the Constitution or
by existing law x x x may be disqualified from continuing as a candidate," and COMELEC
Resolution No. 780045 (Rules Delegating to COMELEC Field Officials the Authority to Hear and
Receive Evidence in Disqualification Cases Filed in Connection with the May 14, 2007 National
and Local Elections), which states in Section 5(C)(1) and (3)(a)(4) that:
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 SOME GROUNDS FOR DISQUALIFICATION
1) A verified petition to disqualify a candidate pursuant to Sec. 68 of the OEC and the
verified petition to disqualify a candidate for lack of qualifications or possessing some
grounds for disqualification may be filed on any day after the last day for filing of
certificates of candidacy but not later than the date of proclamation.
xxxx
3) The petition to disqualify a candidate for lack of qualification or possessing some
grounds for disqualification, shall be filed in ten (10) legible copies with the concerned
office mentioned in Sec. 3 hereof, personally or through a duly authorized representative
by any person of voting age, or duly registered political party, organization or coalition
of political parties on the grounds that any candidate does not possess all the
qualifications of a candidate as provided for by the constitution or by existing law, or who
possesses some grounds for disqualification,
3.a. Disqualification under existing election laws:
1. For not being a citizen of the Philippines;
 2. For being a permanent resident of or an immigrant to a foreign country;
3. For lack of the required age;
4. For lack of residence;
5. For not being a registered voter;
6. For not being able to read and write;
7. In case of a party-list nominee, for not being a bona fide member of the party
or organization which he seeks to represent for at least ninety (90) days
immediately preceding the day of the election. [Emphasis supplied.]
We disagree. A COMELEC rule or resolution cannot supplant or vary the legislative enactments
that distinguish the grounds for disqualification from those of ineligibility, and the appropriate
proceedings to raise the said grounds. In other words, Rule 25 and COMELEC Resolution No.
7800 cannot supersede the dissimilar requirements of the law for the filing of a petition for
disqualification under Section 68, and a petition for the denial of due course to or cancellation
of CoC under Section 78 of the OEC.46 As aptly observed by the eminent constitutionalist,
Supreme Court Justice Vicente V. Mendoza, in his separate opinion in Romualdez-Marcos v.
Commission on Elections:47
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 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.
Indeed, provisions for disqualifications on the ground that the candidate is guilty of
prohibited election practices or offenses, like other pre-proclamation remedies, are
aimed at the detestable practice of "grabbing the proclamation and prolonging the
election protest," through the use of "manufactured" election returns or resort to other
trickery for the purpose of altering the results of the election. This rationale does not
apply to cases for determining a candidate’s qualifications for office before the election.
To the contrary, it is the candidate against whom a proceeding for disqualification is
brought who could be prejudiced because he could be prevented from assuming office
even though in the end he prevails.48
Furthermore, the procedure laid down in the said Rule 25 of the COMELEC Rules of Procedure
cannot be used in "Section 78" proceedings, precisely because a different rule, Rule
23,49 specifically governs petitions to deny due course to or cancel CoCs.
II.
Having thus determined that the Dilangalen petition is one under Section 78 of the OEC, the
Court now declares that the same has to comply with the 25-day statutory period for its
filing. Aznar v. Commission on Elections50 and Loong v. Commission on Elections51 give
ascendancy to the express mandate of the law that "the petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of candidacy."
Construed in relation to reglementary periods and the principles of prescription, the dismissal of
"Section 78" petitions filed beyond the 25-day period must come as a matter of course.
We find it necessary to point out that Sections 5 and 752 of Republic Act (R.A.) No.
6646,53 contrary to the erroneous arguments of both parties, did not in any way amend the period
for filing "Section 78" petitions. While Section 7 of the said law makes reference to Section 5 on
the procedure in the conduct of cases for the denial of due course to the CoCs of nuisance
candidates54 (retired Chief Justice Hilario G. Davide, Jr., in his dissenting opinion in Aquino v.
Commission on Elections55 explains that "the ‘procedure hereinabove provided’ mentioned in
Section 7 cannot be construed to refer to Section 6 which does not provide for a procedure but
for the effects of disqualification cases, [but] can only refer to the procedure provided in Section
5 of the said Act on nuisance candidates x x x."), the same cannot be taken to mean that the
25-day period for filing "Section 78" petitions under the OEC is changed to 5 days counted from
the last day for the filing of CoCs. The clear language of Section 78 certainly cannot be amended
or modified by the mere reference in a subsequent statute to the use of a procedure specifically
intended for another type of action. Cardinal is the rule in statutory construction that repeals by
implication are disfavored and will not be so declared by the Court unless the intent of the
legislators is manifest.56 In addition, it is noteworthy that Loong,57 which upheld the 25-day period
for filing "Section 78" petitions, was decided long after the enactment of R.A. 6646. In this regard,
we therefore find as contrary to the unequivocal mandate of the law, Rule 23, Section 2 of the
COMELEC Rules of Procedure which states:
Sec. 2. Period to File Petition.–The petition must be filed within five (5) days following
the last day for the filing of certificates of candidacy.
As the law stands, the petition to deny due course to or cancel a CoC "may be filed at any time
not later than twenty-five days from the time of the filing of the certificate of candidacy."
Accordingly, it is necessary to determine when Fermin filed his CoC in order to ascertain whether
the Dilangalen petition filed on April 20, 2007 was well within the restrictive 25-day period. If it
was not, then the COMELEC should have, as discussed above, dismissed the petition outright.
The record in these cases reveals that Fermin filed his CoC for mayor of Northern Kabuntalan
for the May 14, 2007 National and Local Elections on March 29, 2007.58 It is clear therefore that
the petition to deny due course to or cancel Fermin’s CoC was filed by Dilangalen well within
the 25-day reglementary period. The COMELEC therefore did not abuse its discretion, much
more gravely, when it did not dismiss the petition outright.
III.
However, the Court finds the COMELEC to have gravely abused its discretion when it
precipitately declared that Fermin was not a resident of Northern Kabuntalan for at least one
year prior to the said elections.
In its assailed June 29, 2007 Resolution, 59 the COMELEC ruled as follows:
In the petitioner’s memorandum, an authenticated copy of the respondent’s oath of office
subscribed and sworn to before Datu Andal Ampatuan, Governor Maguindanao
Province, it was stated that respondent’s residence is at Barangay Payan, Maguindanao
(sic) as of April 27, 2006. Clearly the respondent is not a resident of Northern Kabuntalan
earlier than 15 May 2006 as his very own oath of office would reveal that he is really a
resident of Barangay Payan, Kabuntalan less than 365 days immediately preceding the
May 14, 2007 elections. He is a resident of a barangay not a component of the local
government unit in which he seeks to be elected as of May 15, 2006 and is therefore not
qualified or eligible to seek election as mayor in the said municipality.60
Obviously, the COMELEC relied on a single piece of evidence to support its finding that
petitioner was not a resident of Barangay Indatuan, Northern Kabuntalan, i.e., the oath of office
subscribed and sworn to before Governor Datu Andal Ampatuan, in which petitioner indicated
that he was a resident of Barangay Payan, Kabuntalan as of April 27, 2006. However, this single
piece of evidence does not necessarily support a finding that petitioner was not a resident of
Northern Kabuntalan as of May 14, 2006, or one year prior to the May 14, 2007
elections.61 Petitioner merely admitted that he was a resident of another locality as of April 27,
2006, which was more than a year before the elections. It is not inconsistent with his subsequent
claim that he complied with the residency requirement for the elective office, as petitioner could
have transferred to Barangay Indatuan after April 27, 2006, on or before May 14, 2006.
Neither does this evidence support the allegation that petitioner failed to comply with the
residency requirement for the transfer of his voting record from Barangay Payan
to Barangay Indatuan. Given that a voter is required to reside in the place wherein he proposes
to vote only for six months immediately preceding the election,62 petitioner’s application for
transfer on December 13, 2006 does not contradict his earlier admission that he was a resident
of Barangay Payan as of April 27, 2006. Be that as it may, the issue involved in the Dilangalen
petition is whether or not petitioner made a material representation that is false in his CoC, and
not in his application for the transfer of his registration and voting record.
The foregoing considered, the Court finds that the Dilangalen petition does not make out a prima
facie case. Its dismissal is therefore warranted. We emphasize that the mere filing of a petition
and the convenient allegation therein that a candidate does not reside in the locality where he
seeks to be elected is insufficient to effect the cancellation of his CoC. Convincing evidence
must substantiate every allegation.63 A litigating party is said to have a prima facie case when
the evidence in his favor is sufficiently strong for his opponent to be called on to answer it.
A prima facie case, then, is one which is established by sufficient evidence and can be
overthrown only by rebutting evidence adduced on the other side.64

IV.

In light of the foregoing disquisition, the COMELEC’s order for the dismissal of Fermin’s election
protest is tainted with grave abuse of discretion, considering that the same is premised on
Fermin’s alleged lack of legal standing to file the protest, which, in turn, is based on Fermin’s
alleged lack of residency qualification. With our disposition herein that the Dilangalen petition
should be dismissed, a disquisition that Fermin has no standing as a candidate would be
reckless and improper.

WHEREFORE, premises considered, the petitions for certiorari are GRANTED. The assailed
issuances of the COMELEC are ANNULLED and SET ASIDE.

SO ORDERED.
G.R. No. 191938 October 19, 2010
ABRAHAM KAHLIL B. MITRA, Petitioner,
vs.
COMMISSION ON ELECTIONS, ANTONIO V. GONZALES and ORLANDO R. BALBON,
JR., Respondents.
RESOLUTION
BRION, J.:
We resolve the Motion for Reconsideration1 filed by public respondent Commission on Elections
(COMELEC) and the Motion for Reconsideration with Motion for Oral Arguments2 filed by private
respondents Antonio V. Gonzales and Orlando R. Balbon, Jr. (private respondents), dated July
19, 2010 and July 20, 2010, respectively, addressing our Decision of July 2, 20103 (July 2, 2010
Decision or Decision). We annulled in this Decision the February 10, 2010 and May 4, 2010
Resolutions of the COMELEC, and denied the private respondents’ petition to cancel the
Certificate of Candidacy (COC) of petitioner Abraham Kahlil B. Mitra (Mitra).
The Assailed Ruling
To recall its highlights, our Decision emphasized that despite our limited certiorari jurisdiction in
election cases, we are not only obliged but are constitutionally bound to intervene when the
COMELEC’s action on the appreciation and evaluation of evidence oversteps the limits of its
discretion – in this case, a situation where resulting errors, arising from the grave abuse
committed by the COMELEC, mutated from being errors of judgment to errors of jurisdiction.
Based on our evaluation of the evidence presented by both parties, we found that Mitra did not
commit any deliberate material misrepresentation in his COC. We noted, too, that the
COMELEC gravely abused its discretion in its appreciation of the evidence, leading it to
conclude that Mitra is not a resident of Aborlan, Palawan. We also found that the COMELEC
failed to critically consider whether Mitra deliberately attempted to mislead, misinform or hide a
fact that would otherwise render him ineligible for the position of Governor of Palawan.
On the critical question of whether Mitra deliberately misrepresented his Aborlan residence to
deceive and mislead the people of the Province of Palawan, we found that Mitra did not. In fact,
Mitra adduced positive evidence of transfer of residence which the private respondents’
evidence failed to sufficiently controvert. Specifically, the private respondents’ evidence failed
to show that Mitra remained a Puerto Princesa City resident.
In this regard, we took note of the "incremental moves" Mitra undertook to establish his new
domicile in Aborlan, as evidenced by the following: (1) his expressed intent to transfer to a
residence outside of Puerto Princesa City to make him eligible for a provincial position; (2) his
preparatory moves starting in early 2008; (3) the transfer of registration as a voter in March
2009; (4) his initial transfer through a leased dwelling at Maligaya Feedmill; (5) the purchase of
a lot for his permanent home; and (6) the construction of a house on the said lot which is adjacent
to the premises he was leasing pending the completion of his house. Thus, we found that under
the situation prevailing when Mitra filed his COC, there is no reason to infer that Mitra committed
any misrepresentation, whether inadvertently or deliberately, in claiming residence in Aborlan.
We also emphasized that the COMELEC could not even present any legally acceptable basis
(as it used subjective non-legal standards in its analysis) to conclude that Mitra’s statement in
his COC concerning his residence was indeed a misrepresentation. In sum, we concluded that
the evidence in the present case, carefully reviewed, showed that Mitra indeed transfered his
residence from Puerto Princesa City to Aborlan within the period required by law.
The Motions for Reconsideration
In its Motion for Reconsideration dated July 19, 2010, the COMELEC, through the Office of the
Solicitor General, asks us to reconsider our July 2, 2010 Decision on the sole ground that:
THIS HONORABLE COURT ERRED WHEN IT REVIEWED THE PROBATIVE VALUE OF THE
EVIDENCE PRESENTED AND SUBSTITUTED ITS OWN FACTUAL FINDINGS OVER THAT
OF [THE] PUBLIC RESPONDENT.4
The COMELEC argues that we overstepped our review power over its factual findings; as a
specialized constitutional body, the findings and conclusions of the COMELEC are generally
respected and even given the status of finality. The COMELEC also contends that the Court
erred in taking cognizance of the present petition since the issues raised therein are essentially
factual in nature. It claims that it is elementary that the extraordinary remedy of certiorari is
limited to correcting questions of law and that the factual issues raised in the present petition
are not appropriate for a petition for review on certiorari.
On the merits, the COMELEC submits that there is substantial, if not overwhelming, evidence
that Mitra is not a resident of Aborlan, Palawan. It argues that it merely took cognizance of
Mitra’s purported dwelling’s "habitableness," or lack thereof, to determine the fact of residency;
while Mitra may have exhibited his intention to transfer his domicile, the fact of actual residency
was lacking.
For their part, the private respondents raise the following errors in support of their Motion for
Reconsideration with Motion for Oral Arguments dated July 20, 2010, viz:
I.
THE MAJORITY ERRED IN EXERCISING THIS HONORABLE COURT’S LIMITED
CERTIORARI JURISDICTION EVEN WHEN THE PETITION, ON ITS FACE, FAILED TO
SHOW HOW THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION.
II.
THE MAJORITY ERRED IN CONCLUDING THAT THE COMELEC COMMITTED GRAVE
ABUSE OF DISCRETION BY USING SUBJECTIVE AND NON-LEGAL STANDARDS IN
ASSESSING THE EVIDENCE SUBMITTED BY MITRA.
III.
GRANTING WITHOUT ADMITTING THAT THE COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION IN ONE ASPECT OF ITS RESOLUTION, THE SUPREME COURT SHOULD
NONETHELESS CONSIDER WHETHER THE OTHER EVIDENCE SUBMITTED ARE
ENOUGH TO SUSTAIN THE RULING OF THE COMELEC.
A.
THE QUANTUM OF EVIDENCE NECESSARY TO OVERTURN THE FINDINGS OF
FACTS OF THE COMELEC SHOULD BE CLEAR AND CONVINCING EVIDENCE.
WHEN THE EVIDENCE OF [THE] PETITIONER ARE UNSUBSTANTIATED AND
CONTROVERTED, THE SAME FAILS TO REACH THE QUANTUM OF PROOF
NECESSARY TO SUBSTITUTE THE FINDINGS OF THE COMELEC.
IV.
THE MAJORITY ERRED IN FOCUSING ON THE COMELEC’S OPINION REGARDING THE
PHOTOGRAPHS SUBMITTED BY MITRA OF HIS SUPPOSED RESIDENCE, WHILE
TOTALLY DISREGARDING OTHER EVIDENCE SUBMITTED BY THE PRIVATE
RESPONDENTS AND CONSIDERED BY THE COMELEC.
A.
THE MAJORITY ERRED IN DISREGARDING THE EFFECTIVITY OF THE
CONTRACT OF LEASE WHICH SHOWS THAT THE SAME IS ONLY UP TO 28
FEBRUARY 2010.
B.
THE MAJORITY ERRED IN DISREGARDING EVIDENCE WHICH SHOW THAT
MITRA FAILED TO ABANDON HIS DOMICILE OF ORIGIN.
V.
THE MAJORITY ERRED IN HOLDING THAT MITRA HAD TRANSFERRED HIS RESIDENCE
FROM HIS DOMICILE OF ORIGIN IN PUERTO PRINCESA CITY TO HIS DOMICILE OF
CHOICE IN ABORLAN, IN AN INCREMENTAL PROCESS.
VI.
THE MAJORITY ERRED IN HOLDING THAT MITRA DID NOT COMMIT ANY DELIBERATE
MATERIAL MISREPRESENTATION IN HIS COC.
A.
THE MATERIAL STATEMENT IN PETITIONER’S COC RESPECTING HIS
RESIDENCE HAS BEEN SHOWN TO BE FALSE. BY MAKING SUCH FALSE
STATEMENT, PETITIONER DELIBERATELY TRIED TO MISLEAD AND TO
MISINFORM THE ELECTORATE AS TO HIS ACTUAL RESIDENCE. HENCE, HIS
COC WAS CORRECTLY DENIED DUE COURSE AND CANCELLED.
B.
THE MAJORITY ERRED IN EXONERATING MITRA FROM THE VIOLATION OF A
MANDATORY PROVISION OF LAW WHICH ENTAILS BOTH ADMINISTRATIVE AND
CRIMINAL LIABILITIES BY INVOKING THE PURPOSE OF THE LAW WHERE SUCH
RESORT IS NOT CALLED FOR IN VIEW OF THE GIVEN FACTS AND EVIDENCE
PRESENTED IN THIS CASE.
VII.
JURISPRUDENCE RELIED ON BY THE MAJORITY IS NOT APPLICABLE TO THE PRESENT
CASE.
A.
 THE CASE OF TORAYNO V. COMELEC IS NOT APPLICABLE TO THE PRESENT
CASE.
B.
THE CASE OF ASISTIO V. TRINIDAD PE-AGUIRRE IS LIKEWISE NOT APPLICABLE
TO THE PRESENT CASE.
C.
THE CASE OF VELASCO SHOULD BE APPLIED STRICTLY TO THE PRESENT
CASE.5
Our Ruling
We resolve to deny, for lack of merit, the motions for reconsideration and for oral arguments.
We note at the outset that the COMELEC and private respondents’ arguments are mere
rehashes of their previous submissions; they are the same arguments addressing the issues we
already considered and passed upon in our July 2, 2010 Decision. Thus, both the COMELEC
and private respondents failed to raise any new and substantial argument meriting
reconsideration. The denial of the motion for oral arguments proceeds from this same reasoning;
mere reiterations of the parties’ original submissions on issues our Decision has sufficiently
covered, without more, do not merit the time, effort and attention that an oral argument shall
require.
Having said these, we shall still proceed to discuss the aspects of the case the motions touched
upon, if only to put an end to lingering doubts on the correctness of our July 2, 2010 Decision.
First, both the COMELEC and the private respondents posit that the Court improperly exercised
its limited certiorari jurisdiction; they theorize that Mitra’s petition failed to allege and show errors
of jurisdiction or grave abuse of discretion on the part of the COMELEC. They also stress that
the Court should respect and consider the COMELEC’s findings of fact to be final and non-
reviewable.
The COMELEC’s submission in this regard – that the extraordinary remedy of certiorari is limited
to corrections of questions of law and that the factual issues raised in the present petition are
not appropriate for a petition for review on certiorari – is wholly erroneous. This submission
appears to have confused the standards of the Court’s power of review under Rule 65 and Rule
45 of the Rules of Court, leading the COMELEC to grossly misread the import of Mitra’s petition
before the Court.
To recall, Mitra brought his case before us via a petition for certiorari, pursuant to Section 2,
Rule 64, in relation to Rule 65, of the Rules of Court. Thus, in our July 2, 2010 Decision, we
emphasized that our review (under the Rule 65 standard of grave abuse of discretion, and not
under the Rule 45 question of law standard) is based on a very limited ground, i.e., on the
jurisdictional issue of whether the COMELEC acted without or in excess of its jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction.
The basis for the Court’s review of COMELEC rulings under the standards of Rule 65 of the
Rules of Court is Section 7, Article IX-A of the Constitution which provides that "[U]nless
otherwise provided by [the] Constitution or by law, any decision, order, or ruling of each
Commission may be brought to the Supreme Court on certiorari by the aggrieved party within
thirty days from receipt of a copy thereof." For this reason, the Rules of Court provide for a
separate rule (Rule 64) specifically applicable only to decisions of the COMELEC and the
Commission on Audit. This Rule expressly refers to the application of Rule 65 in the filing of a
petition for certiorari, subject to the exception clause – "except as hereinafter provided."6
In Aratuc v. Commission on Elections7 and Dario v. Mison,8 the Court construed the above-cited
constitutional provision as relating to the special civil action for certiorari under Rule 65 (although
with a different reglementary period for filing) and not to an appeal by certiorari under Rule 45
of the Rules of Court. Thus, Section 2 of Rule 64 of the Rules of Court now clearly specifies that
the mode of review is the special civil action of certiorari under Rule 65, except as therein
provided. In Ocate v. Commission on Elections,9 we further held that:
The purpose of a petition for certiorari is to determine whether the challenged tribunal has acted
without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack or
excess of jurisdiction. Thus, any resort to a petition for certiorari under Rule 64 in relation to
1avvphi1
Rule 65 of the 1997 Rules of Civil Procedure is limited to the resolution of jurisdictional issues.
The COMELEC should likewise be aware that the Constitution itself,10 in defining judicial power,
pointedly states that –
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.
This provision, more than anything else, identifies the power and duty of this Court in grave
abuse of discretion situations, and differentiates this authority from the power of review by
appeal that Rule 45 of the Rules of Court defines.
Based on these considerations, we cannot accept the COMELEC’s position that patently
confuses the mode of review in election cases under Rules 64 and 65 of the Rules of Court, with
the appellate review that Rule 45 of the same Rules provides.
We likewise reject the COMELEC and the private respondents’ proposition that the Court erred
in exercising its limited certiorari jurisdiction. Although the COMELEC is admittedly the final
arbiter of all factual issues as the Constitution11 and the Rules of Court12 provide, we stress that
in the presence of grave abuse of discretion, our constitutional duty is to intervene and not to
shy away from intervention simply because a specialized agency has been given the authority
to resolve the factual issues.
As we emphasized in our Decision, we have in the past recognized exceptions to the general
rule that the Court ordinarily does not review in a certiorari case the COMELEC’s appreciation
and evaluation of evidence. One such exception is when the COMELEC’s appreciation and
evaluation of evidence go beyond the limits of its discretion to the point of being grossly
unreasonable. In this situation, we are duty bound under the Constitution to intervene and
correct COMELEC errors that, because of the attendant grave abuse of discretion, have mutated
into errors of jurisdiction.
Our Decision clearly pointed out Mitra’s submissions and arguments on grave abuse of
discretion, namely, that the COMELEC failed to appreciate that the case is a cancellation of a
COC proceeding and that the critical issue is the presence of deliberate false material
representation to deceive the electorate. In fact, Mitra’s petition plainly argued that the
COMELEC’s grave abuse of discretion was patent when it failed to consider that the ground to
deny a COC is deliberate false representation. We completely addressed this issue and, in the
process, analyzed the reasoning in the assailed COMELEC decision. At every step, we found
that the COMELEC committed grave abuse of discretion in the appreciation of the evidence.
Second, the private respondents contend that the COMELEC did not use subjective non-legal
standards (i.e., interior decoration of the room) in arriving at its decision; it merely stated how it
perceived Mitra’s alleged residence. The private respondents additionally claim that the
quantum of evidence necessary to overturn the findings of the COMELEC should be clear and
convincing evidence, which level of evidence does not obtain in the present case.
The assailed COMELEC ruling speaks for itself on the matter of the standards the COMELEC
used. We found that the COMELEC plainly used a subjective non-legal standard in its analysis
and thereby, the COMELEC used wrong considerations in arriving at the conclusion that Mitra’s
residence at the Maligaya Feedmill is not the residence contemplated by law.
We reiterate that the COMELEC based its ruling that Mitra did not take up residence in Aborlan
largely on the photographs of Mitra’s Aborlan premises; it concluded that the photographed
premises could not have been a residence because of its assessment of the interior design and
furnishings of the room. Thus, the COMELEC Second Division’s Resolution (which the
COMELEC en banc fully supported) did not merely conclude that Mitra does not live in the
photographed premises; more than this, it ruled that these premises cannot be considered a
home or a residence, for lack of the qualities of a home that the Second Division wanted to see.
To quote:
The pictures presented by Mitra of his supposed "residence" are telling. The said pictures show
a small, sparsely furnished room which is evidently unlived in and which is located on the second
floor of a structure that appears like a factory or a warehouse. These pictures likewise show that
the "residence" appears hastily set-up, cold, and utterly devoid of any [personality] which would
have imprinted Mitra’s personality thereto such as old family photographs and memorabilia
collected through the years. In fact, an appreciation of Mitra’s supposed "residence" raises
doubts whether or not he indeed lives there. Verily, what is lacking therein are the loving
attention and details inherent in every home to make it one’s residence. Perhaps, at most, and
to this Commission’s mind, this small room could have served as Mitra’s resting area whenever
he visited the said locality but nothing more.
This observation coupled with the numerous statements from former employees and customers
of Maligaya Feed Mill and Farm that Mitra’s residence is located in an unsavory location,
considering the noise and pollution of being in a factory area, and that the same, in fact, had
been Maligaya Feed Mill’s office just a few months back, militates against Mitra’s claim that the
same has been his residence since early 2008. These information make it clear to this
Commission that this room is not a home.13
Thus presented, the COMELEC’s requirement of what should be considered a "residence"
cannot but be a highly subjective one that finds no basis in law, in jurisprudence, or even in fact.
Third, we cannot likewise agree with the private respondents’ theory that the quantum of
evidence necessary to overturn the factual findings of the COMELEC should be clear and
convincing evidence, as it misappreciates that we nullified the COMELEC’s findings because it
used the wrong considerations in arriving at its conclusions.
The private respondents fail to realize that the important considerations in the present case
relate to questions bearing on the cancellation of the COC that they prayed for; the main critical
points are the alleged deliberate misrepresentation by Mitra and the underlying question of his
residency in Aborlan, Palawan.
While it is undisputed that Mitra’s domicile of origin is Puerto Princesa City, Mitra adequately
proved by substantial evidence that he transferred by incremental process to Aborlan beginning
2008, and concluded his transfer in early 2009. As our Decision discussed and as repeated
elsewhere in this Resolution, the private respondents failed to establish by sufficiently
convincing evidence that Mitra did not effectively transfer, while the COMELEC not only grossly
misread the evidence but even used the wrong considerations in appreciating the submitted
evidence.
To convince us of their point of view, the private respondents point out that we (1) totally
disregarded the other evidence they submitted, which the COMELEC, on the other hand,
properly considered; (2) disregarded the import of the effectivity of the lease contract, which
showed that it was only effective until February 28, 2010; and (3) disregarded the evidence
showing that Mitra failed to abandon his domicile of origin.
These issues are not new issues; we extensively and thoroughly considered and resolved them
in our July 2, 2010 Decision. At this point, we only need to address some of the private
respondents’ misleading points in order to clear the air.
1. The private respondents’ reliance on the expiration date of the lease contract, to
disprove Mitra’s claim that the room at the Maligaya Feedmill is his residence, is
misplaced. This argument is flimsy since the contract did not provide that it was
completely and fully time-barred and was only up to February 28, 2010; it was renewable
at the option of the parties. That a lease is fixed for a one-year term is a common
practice. What is important is that it is renewable at the option of the parties. In the
absence of any objection from the parties, the lease contract simply continues and is
deemed renewed.14
2. In an attempt to show that Mitra considers himself a resident of Puerto Princesa City,
the private respondents submitted in their Motion for Reconsideration a colored certified
true copy of Mitra’s alleged Puerto Princesa City Community Tax Certificate (CTC) dated
February 3, 200915 allegedly showing Mitra’s signature. To recall, we found that based
on the records before us, the purported February 3, 2009 CTC did not bear the signature
of Mitra. Although the private respondents have belatedly filed this evidence, we
carefully examined the recently submitted colored copy of the February 3, 2009 CTC
and saw no reason to reverse our finding; the "alleged signature" appears to us to be a
mere hazy "superimposition" that does not bear any resemblance at all to Mitra’s
signature. We, thus, stand by our ruling that the February 3, 2009 CTC, if at all, carries
very little evidentiary value. It did it not at all carry Mitra’s signature; his secretary’s
positive testimony that she secured the CTC for Mitra, without the latter’s participation
and knowledge, still stands unrefuted.
3. The private respondents likewise belatedly submitted a Certification, dated July 17,
2010,16 from the Municipal Agriculturist of Aborlan, stating that its office does not have
any record of the supposed pineapple plantation in Barangay Isaub, Aborlan, Palawan.
This late submission was made to show that Mitra has no established business interests
in Aborlan. The Certification pertinently states:
This is to certify that as of this date, there is no existing records/registration in our office
regarding the alleged pineapple plantation in Barangay Isaub, Aborlan, Palawan.
However, the Office of the Municipal Agriculturist is on the process of gathering data on
the Master list of Farmers engaged in growing High Value Commercial Crops in Aborlan.
This certification is issued to MR. BENJAMIN KATON a resident in Penida Subdivision,
Puerto Princesa City for whatever legal purposes may serve him best.
We cannot give any evidentiary value to this submission for two reasons. First, it was
filed only on reconsideration stage and was not an evidence before us when the case
was submitted for resolution. Second, even if it had not been filed late, the Certification
does not prove anything; it is, on its face, contradictory. On the one hand, it categorically
states that there are no existing records of any pineapple plantation in Barangay Isaub,
Aborlan, Palawan; on the other hand, it also expressly states that its records are not yet
complete since it is "on the process of gathering data on the Master list of Farmers
engaged in growing High Value Commercial Crops in Aborlan."17 Under what law or
regulation the certifying office has the obligation to prepare a list of agricultural business
interests in Aborlan has not even been alleged.
At the risk of repetition, we reiterate that Mitra’s business interests in Aborlan stand
undisputed in the present case. Not only was Mitra able to present photographs of his
experimental pineapple plantation; his claim of ownership was also corroborated by the
statements of Dr. Carme Caspe, Ricardo Temple and other witnesses.
4. The private respondents also claim that the Court erred in ruling that Mitra did not
commit any deliberate material misrepresentation in his COC. We likewise see no merit
in this claim. One important point in the present case is that the private respondents
failed to prove that there was deliberate material misrepresentation in Mitra’s statement
on his required residency prior to the May 10, 2010 elections. This, as we stressed in
our Decision, is a glaring gap in the private respondents’ case:
We do not believe that he committed any deliberate misrepresentation given what he knew of
his transfer, as shown by the moves he had made to carry it out. From the evidentiary
perspective, we hold that the evidence confirming residence in Aborlan decidedly tilts in Mitra’s
favor; even assuming the worst for Mitra, the evidence in his favor cannot go below the level of
an equipoise, i.e., when weighed, Mitra’s evidence of transfer and residence in Aborlan cannot
be overcome by the respondents’ evidence that he remained a Puerto Princesa City resident.
Under the situation prevailing when Mitra filed his COC, we cannot conclude that Mitra
committed any misrepresentation, much less a deliberate one, about his residence.
The character of Mitra’s representation before the COMELEC is an aspect of the case that the
COMELEC completely failed to consider as it focused mainly on the character of Mitra’s feedmill
residence. For this reason, the COMELEC was led into error – one that goes beyond an ordinary
error of judgment. By failing to take into account whether there had been a deliberate
misrepresentation in Mitra’s COC, the COMELEC committed the grave abuse of simply
assuming that an error in the COC was necessarily a deliberate falsity in a material
representation. In this case, it doubly erred because there was no falsity; as the carefully
considered evidence shows, Mitra did indeed transfer his residence within the period required
by Section 74 of the OEC.
The respondents significantly ask us in this case to adopt the same faulty approach of using
subjective norms, as they now argue that given his stature as a member of the prominent Mitra
clan of Palawan, and as a three term congressman, it is highly incredible that a small room in a
feed mill has served as his residence since 2008.
We reject this suggested approach outright for the same reason we condemned the
COMELEC’s use of subjective non-legal standards. Mitra’s feed mill dwelling cannot be
considered in isolation and separately from the circumstances of his transfer of residence,
specifically, his expressed intent to transfer to a residence outside of Puerto Princesa City to
make him eligible to run for a provincial position; his preparatory moves starting in early 2008;
his initial transfer through a leased dwelling; the purchase of a lot for his permanent home; and
the construction of a house in this lot that, parenthetically, is adjacent to the premises he leased
pending the completion of his house. These incremental moves do not offend reason at all, in
the way that the COMELEC’s highly subjective non-legal standards do.
Thus, we can only conclude, in the context of the cancellation proceeding before us, that the
respondents have not presented a convincing case sufficient to overcome Mitra’s evidence of
effective transfer to and residence in Aborlan and the validity of his representation on this point
in his COC, while the COMELEC could not even present any legally acceptable basis to
conclude that Mitra’s statement in his COC regarding his residence was a misrepresentation.18
5. The private respondents submit that the Court erred in relying on jurisprudence (Torayno, Sr.
v. COMELEC19 and Asistio v. Hon. Trinidad Pe-Aguirre20) not applicable to the present case.
They additionally argue that our ruling in Velasco v. COMELEC21 should be applied strictly to
the present case.
These submissions are wrong, as they do not consider the purposes and the specific points of
law for which we cited these cases. Torayno, Asistio and Velasco, read in their proper
perspective, fully support our findings and conclusions in this case.
While Torayno does not share the exact factual situation in the present case, we cited the case
to illustrate that it is not unknown in this jurisdiction to have a situation where a candidate, due
to legal developments (such as reclassification of a component city to a highly urbanized city),
is compelled to transfer residence to allow him to continue his or her public service in another
political unit that he or she cannot legally access as a candidate, without a change of residence.
In the present case, as in Torayno, Mitra would not have had any legal obstacle to his
gubernatorial bid were it not for the reclassification of Puerto Princesa City from a component
city to a highly urbanized city. The adjustment he had to make was solely in his residence, as
he already had, as a Puerto Princesa City resident, knowledge of and sensitivity to the needs of
the Palawan electorate.
The factual antecedents of Asistio are likewise not exactly the same as the facts of the present
case, but the Court’s treatment of the COC inaccuracies in Asistio fully supports our conclusion
that Mitra has established his Aborlan domicile. In Asistio, we held that Asistio’s mistake in his
residency statement in his COC "is not sufficient proof that he has abandoned his domicile in
Caloocan City, or that he has established residence outside of Caloocan City."22 In the present
case, Mitra did not commit any inaccuracies in his COC. In fact, any inaccuracy there may have
been was committed by third persons on documents (such as the building permit, contract of
sale of the Temple property, and his CTC) that do not have any bearing on his candidacy. Under
these circumstances, we would apply a harsher rule to Mitra if we conclude that he has not
established his Aborlan domicile.
Our July 2, 2010 Decision finds commonality with our ruling in Velasco in the recognition, in both
cases, of the rule of law. But as we explained in our Decision, the similarity ends there as the
facts to which the law was applied differed. We thus ruled:
These cases are to be distinguished from the case of Velasco v. COMELEC where the
COMELEC cancelled the COC of Velasco, a mayoralty candidate, on the basis of his undisputed
knowledge, at the time he filed his COC, that his inclusion and registration as a voter had been
denied. His failure to register as a voter was a material fact that he had clearly withheld from the
COMELEC; he knew of the denial of his application to register and yet concealed his non-voter
status when he filed his COC. Thus, we affirmed the COMELEC’s action in cancelling his COC.
If there is any similarity at all in Velasco and the present case, that similarity is in the recognition
in both cases of the rule of law. In Velasco, we recognized – based on the law – that a basic
defect existed prior to his candidacy, leading to his disqualification and the vice-mayor-elect’s
assumption to the office. In the present case, we recognize the validity of Mitra’s COC, again on
the basis of substantive and procedural law, and no occasion arises for the vice-governor-elect
to assume the gubernatorial post.23
To summarize, both the COMELEC and private respondents have not shown, through their
respective motions, sufficient reasons to compel us to modify or reverse our July 2, 2010
Decision.
Other Developments,
Issues and Rulings
In the course of the Court’s consideration of this case, a dissent was entered that contained its
own arguments on why our Decision of July 2, 2010 should be reversed. For a complete
treatment and presentation of the issues raised, the arguments in the dissent and the refutation
are discussed below, separately from the arguments the COMELEC and private respondents
themselves raised.
First, the dissent asserts that our conclusion that the private respondents’ evidence
failed to show that Mitra remained a Puerto Princesa City resident is "way off point" since
the private respondents showed, as the COMELEC has found, that Mitra could not have
stayed and resided at the mezzanine portion of the Maligaya Feedmill located at
Barangay Isaub, Aborlan, Palawan.24 In concluding that Mitra remained to be a Puerto
Princesa City resident, the dissent points to the certification of the Punong Barangay of
Sta. Monica, Puerto Princesa City attesting that Mitra continued to reside in that
barangay. The dissent also argues that the certification of the Punong Barangay of Sta.
Monica, supported by the sworn statement of Commodore Hernandez that Mitra resides
in that same barangay, deserves equal if not greater weight than the statement of the
Punong Barangay of Isaub, Aborlan; the latter supporting statement should provide the
"tilting element on the question of Mitra’s continued residency in his domicile of origin."25
Second, the dissent faults us for not giving weight to the sworn statements of Maligaya
Feed Mill’s customers and former employees, who testified that Mitra did not reside at
the mezzanine portion of the Feed Mill. It emphasizes the undisputed point that the room
at the mezzanine neither has the usual comfort room nor a kitchen area. Additionally, it
argues that we conveniently failed to cite any statutory standard with respect to the
determination of whether Mitra’s alleged residence constitutes a "residence" as defined
by law.26
Third, the dissent submits that we gravely erred "in giving credence to Mitra’s gratuitous
claims of business interests in Aborlan Palawan" to justify our finding that "Mitra’s
transfer of residence was accomplished not in one single move but, through an
incremental process."27 It notes that Mitra failed to submit material proofs to prove his
substantial business interests in Aborlan, Palawan, such as but not limited to -
"government issued permits or licenses, tax declarations, or real estate tax payments,
property leases and proofs of commercial transactions."28 The dissent concludes that
the suppression of material evidence, which, could directly prove the existence and
ownership of the pineapple plantation should be taken against Mitra who claims
ownership and existence of these businesses.29
Fourth, the dissent argues that we erred in unduly relying on the "dubious" lease contract
for being ante-dated. It stresses that the ponencia unreasonably gave credence to the
lease contract despite "indicators" of its invalidity, which should have forewarned the
Court that the same is not what it purports to be.30 It also adds that our justification that
the lease contract by law may be impliedly renewed from month to month lacks factual
basis, since Mitra himself, in his Motion for Reconsideration dated February 13, 2010
before the COMELEC en banc, stated that "he had moved to his own new house
physically residing in his newly completed home in Aborlan."31
Fifth, the dissent implores the Court to apply to the present case our June 15, 2010
Decision in G.R. No. 192127, Mario Joel T. Reyes v. Commission on Elections and
Antonio V. Gonzales,32 where we resolved to dismiss Reyes’ petition via a minute
resolution for failure to sufficiently show that the COMELEC gravely abused its discretion
in cancelling Reyes’ COC for his deliberate misrepresentation on his transfer and
establishment of a new residence in Aborlan, Palawan.
Finally, the dissent submits that the mere fact that Mitra won in the May 10, 2010
gubernatorial elections cannot disregard the mandatory one-year residency requirement
to qualify as a gubernatorial candidate. It cites our ruling in Velasco v. Commission on
Elections,33 where we ruled that the provisions on material qualifications of elected
official should always prevail over the will of the electorate in any given locality; to rule
otherwise, would be "to slowly gnaw at the rule of law."
These arguments are addressed in the same order they are posed under the topical headings
below.
The private respondents failed to establish by sufficiently convincing evidence that Mitra
remained a Puerto Princesa City resident.
The evidence before us, properly considered and carefully reviewed, fully supports our
conclusion that the private respondents’ evidence failed to show that Mitra remained a Puerto
Princesa City resident. As discussed now and in our Decision of July 2, 2010, Mitra adequately
proved by substantial evidence that he transferred by incremental process to Aborlan beginning
2008, concluding his transfer in early 2009. Given this proof, the burden of evidence lies with
the private respondents to establish the contrary.
Proof to the contrary is sadly lacking, as the dissent’s reliance on the Certification of the Punong
Barangay of Sta. Monica, Puerto Princesa City is misplaced. The ponencia cannot give full
evidentiary weight to the aforementioned Certification which simply stated -
This is to CERTIFY that ABRAHAM KAHLIL B. MITRA, is a bonafide resident of Purok
El Rancho this (sic) Barangay.
CERTIFIES FURTHER, that on February 3, 2009, he secure (sic) community tax certificate in
this Barangay with CTC No. 16657723.34
To be sure, a bare certification – in a disputed situation – cannot suffice to conclusively establish
the existence of what the certification alleged. The purported CTC, on the other hand, was
neither signed nor thumb-marked by Mitra and, thus, bore no clear indication that it had been
adopted and used by Mitra as his own. In our evaluation, we in fact pointedly emphasized that
the Puerto Princesa City CTC dated February 3, 2009, if at all, carries little evidentiary value in
light of Lilia Camora’s (Mitra’s secretary) positive declaration that she was the one who procured
it, while Mitra’s Aborlan CTC dated March 18, 2009 carried Mitra’s own signature. Camora fully
explained the circumstances under which she secured the CTC of February 3, 2009 and her
statement was never disputed.
On the other hand, Commodore Hernandez’ declaration on its face did not controvert Carme E.
Caspe’s sworn statement which adequately proved that Mitra’s transfer to Aborlan was
accomplished, not in a single move, but through an incremental process that started in early
2008 and concluded in March 2009. Thus, we emphasized in our Decision:
A sworn statement that has no counterpart in the respondents’ evidence in so far as it provides
details (particularly when read with the statement of Ricardo Temple) is Carme Caspe’s
statement on how Mitra’s transfer of residence took place. Read together, these statements
attest that the transfer was accomplished, not in one single move but, through an incremental
process that started in early 2008 and was in place by March 2009, although the house Mitra
intended to be his permanent home was not yet then completed.35
The COMELEC committed grave abuse of discretion in the appreciation of the evidence and in
using wrong considerations which lead it to incorrectly conclude that Mitra is not a resident of
Aborlan and that he committed a deliberate misrepresentation in his COC.
Contrary to the dissent’s view, the sworn statements of Maligaya Feedmill’s customers and
former employees that Mitra did not and could not have resided at the mezzanine portion of the
Feedmill cannot be given full evidentiary weight, since these statements are in nature of negative
testimonies that do not deserve weight and credence in the face of contrary positive evidence,
particularly, Carme E. Caspe’s testimony, cited above, that Mitra did indeed transfer residence
in a process that was accomplished, not in a single move, but through an incremental process
that started in early 2008. It is well-settled in the rules of evidence that positive testimony is
stronger than negative testimony.36
Additionally, we noted in our Decision that the COMELEC committed grave abuse of discretion,
as it failed to correctly appreciate that the evidence clearly pointed to fact that Mitra effectively
transferred his residence to Aborlan, viz:
Specifically, it was lost on the COMELEC majority (but not on the Dissent) that Mitra made
definite, although incremental transfer moves, as shown by the undisputed business interests
he has established in Aborlan in 2008; by lease of a dwelling he established his base; by the
purchase of a lot for his permanent home; by his transfer of registration as a voter in March
2009; and by the construction of a house all viewed against the backdrop of a bachelor
Representative who spent most of his working hours in Manila, who had a whole congressional
district to take care of, and who was establishing at the same time his significant presence in
the whole Province of Palawan.37
The dissent’s observation that the ponencia conveniently failed to cite any statutory standard
with respect to the determination of whether Mitra’s alleged residence constitutes a "residence"
as defined by law is simply not true.38 Our July 2, 2019 Decision was particularly sensitive to the
matter of standards, as we noted that the COMELEC used personal and subjective standards
in its assessment of Mitra’s dwelling when, in fact, the law is replete with standards, i.e., the
dwelling must be where a person permanently intends to return and to remain. Thus, we held:
In considering the residency issue, the COMELEC practically focused solely on its consideration
of Mitra’s residence at Maligaya Feedmill, on the basis of mere photographs of the premises. In
the COMELEC’s view (expressly voiced out by the Division and fully concurred in by the En
Banc), the Maligaya Feedmill building could not have been Mitra’s residence because it is cold
and utterly devoid of any indication of Mitra’s personality and that it lacks loving attention and
details inherent in every home to make it one’s residence. This was the main reason that the
COMELEC relied upon for its conclusion.
Such assessment, in our view, based on the interior design and furnishings of a dwelling as
shown by and examined only through photographs, is far from reasonable; the COMELEC
thereby determined the fitness of a dwelling as a person’s residence based solely on very
personal and subjective assessment standards when the law is replete with standards that can
be used. Where a dwelling qualifies as a residence – i.e., the dwelling where a person
permanently intends to return to and to remain – his or her capacity or inclination to decorate
the place, or the lack of it, is immaterial.39
To buttress our finding that the COMELEC used personal and subjective assessment standards
instead of the standards prescribed by law, we cited Coquilla v. COMELEC,40 which
characterized the term residence as referring to "domicile" or legal residence, that is "the place
where a party actually or constructively has his permanent home, where he, no matter where he
may be found at any given time, eventually intends to return and remain (animus manendi).
Mitra’s business interests in Aborlan remain undisputed and are supported by the evidence on
record.
The dissent’s view that Mitra’s business interests are not supported by the evidence on record
is not accurate. As discussed above and in our July 2, 2010 Decision, Mitra’s business interests
in Aborlan stand undisputed in the present case. On the one hand, the private respondents failed
to present any iota of evidence to disprove Mitra’s claims that he had significant investments in
Aborlan, such as the expiremental pineapple plantation, farm, farmhouse and cock farm.
On the other hand, Mitra submitted photographs41 of his experimental pineapple plantation,
farm, farmhouse and cock farm to prove his business interests in Aborlan. Carme E. Caspe’s
and Ricardo Temple’s statements also corroborated Mitra’s claim that he owns the pineapple
plantation which is located in a property near the Maligaya Feedmill. In this regard, Carme E.
Caspe’s sworn statement pertinently declared:
3. Since 2001, Congressman Mitra has been frequently visiting my farm and we often
meet at the Maligaya Feedmill and Farm located along National Hi-way, Sitio Maligaya,
Barangay Isaub, Aborlan, Palawan.
4. Sometime in January 2008, Congressman Mitra together with his brother Ramon B.
Mitra and his Chief of Staff, Atty. Winston T. Gonzales and some of their friends started
an experimental pineapple growing project in a rented farmland located near the
Maligaya Feedmill and Farm.
5. At about the time that they started the pineapple project, Congressman Mitra and
Ramon Mitra would from time to time stay overnight in the residential portion of Maligaya
Feedmill located along National Hi-way, Sitio Maligaya, Barangay Isaub, Aborlan,
Palawan.
6. Sometime in February 2008, inasmuch as Congressman Abraham Kahlil B. Mitra and
Ramon B. Mitra would want to permanently stay in Aborlan, as Congressman Mitra
would want to be nearer and have easier access to the entire 2st Congressional District
and as they intend to invest in a chicken layer venture in Aborlan in addition to their
pineapple project, we ented onto a contract of lease covering the residential portion of
the Maligaya Feedmill as their residence, a chicken layer house and a growing house
for chickens. We also agreed that Congressman Mitra has the option to purchase a
portion of the Feedmill where he can erect or contruct his own house if he so desires
later.
7. Congressman Mitra, pursuant to our agreement, immediately renovated and
refurbished the residential part in a portion of the Feedmill and as of March 2008 he
started to occupy and reside in the said premises bringing with him some of his personal
belongings, clothes and other personal effects.
10. That in January 2009, Congressman Mitra decided to purchase a nearby farmland
located behind the Deaf School where he intends to contruct his residential house and
farm. However, as he needed time to consummate the sale of the property and to
construct his house thereon, we agreed to renew the lease for another year effective
February 2, 2009 to February 28, 2010 consisting of, among others, a residential portion
of the Maligaya Feedmill.
11. Sometime in May 2009, Congressman Mitra caused the construction of a house and
established a game fowl/fighting cock farm in the lot that he purchased but he continued
to reside in the Maligaya Feedmill up to the present.42
The photographs of the experimental pineapple plantation, farm, farmhouse and cock farm,
coupled with the sworn statements of Carme E. Caspe and Ricardo Temple, substantially prove
the existence of Mitra’s business interests in Aborlan. Thus, Mitra’s failure to submit permits or
licenses, tax declarations, real estate tax payments and other proofs of commercial transactions
does not negate the fact that he has substantial business interests in Aborlan as he claims.
Incidentally, the dissent’s invocation of the adverse presumption of suppression of evidence43 is
erroneous, since it does not arise when the evidence is at the disposal of both parties. 44 In the
present case, the required proofs of commercial transactions the dissent cites are public
documents which are at the disposal of both parties; they are not solely under the custody of
Mitra and can be easily obtained from the municipal offices of Aborlan had the private
respondents been minded to do so. The bottom line is that no such evidence was ever presented
in this case, and none can and should be considered at this point.
The validity or invalidity
of the lease contract is not determinative of question of Mitra’s residence in Aborlan.
Beyond the arguments raised about the invalidity of the lease contract, what is significant for
purposes of this case is the immateriality of the issue to the present case. As we emphasized in
our Decision:
The validity of the lease contract, however, is not the issue before us; what concerns us is the
question of whether Mitra did indeed enter into an agreement for the lease, or strictly for the use,
of the Maligaya Feedmill as his residence (while his house, on the lot he bought, was under
construction) and whether he indeed resided there. The notary’s compliance with the notarial
law likewise assumes no materiality as it is a defect not imputable to Mitra; what is important is
the parties’ affirmation before a notary public of the contract’s genuineness and due execution.45
The dissent’s thesis – that Mitra’s allegation in his Motion for Reconsideration (dated February
13, 2010) before the COMELEC en banc that he had already transferred to the newly
constructed house in Aborlan negates the proposition that the lease agreement is extendible
from month to month - is misleading. The significance of Mitra’s statement in his Motion for
Reconsideration that he had already transferred to his newly constructed house in Aborlan must
not be read in isolation; it must be appreciated under the backdrop of Mitra’s explicit intention to
make Aborlan his permanent residence through an incremental transfer of residence, as
evidenced by the following:
(1) his initial transfer through the leased dwelling at the mezzanine portion of the
Maligaya Feedmill;
(2) the purchase of a lot for his permanent home; and
(3) the construction of a house on this lot which is adjacent to the premises he was
leasing pending the completion of his house.
All these should of course be read with the establishment of Mitra’s business interest in Aborlan
and his transfer of registration as a voter.
Reyes v. Commission on Elections is not applicable in the present case.
In invoking the applicability of our June 15, 2010 ruling in Reyes v. Commission on Elections,
the dissent cites the "explanatory note" penned by Justice Conchita Carpio-Morales
recommending the dismissal of Reyes’ petition. The explanatory note states:
To successfully effect a change of domicile, one must demonstrate (1) actual removal or change
of domicile; (2) a bona fide intention of abandoning the former place of residence and
establishing a new one; and (3) definite acts which correspond with the purpose.
Public respondent committed no grave abuse of discretion in finding that the petitioner had not
sufficiently established a change of his domicile from Coron, Palawan, his domicile of origin, to
Aborlan, Palawan, his supposed domicile of choice, for failure to show, among others things, (1)
actual presence at Aborlan, Palawan, and (2) abandonment of his residence at Coron, Palawan.
It thus correctly relied on the Court’s pronouncement in Dumpit-Michelena v. Boado that without
clear and positive proof of the concurrence of the requirements for a change of domicile, the
domicile of origin continues.
Reading Section 78 of the Omnibus Election Code with the constitutional qualifications for a
Member of the House of Representatives, petitioner’s false representation in his COC regarding
his residence, which affects his qualifications, gave cause for the COMELEC to cancel the
same.46
On June 15, 2010, the Court issued a Minute Resolution dismissing Reyes’ petition, which
states:
The Court Resolved to DISMISS the petition for failure thereof to sufficiently show that any grave
abuse of discretion was committed by the Commission on Elections in rendering the challenged
resolutions which, on the contrary, appear to be in accord with the facts and applicable law and
jurisprudence.47
This Resolution found no grave abuse of discretion and upheld the March 25, 2010 Resolution
of the COMELEC Second Division48 and May 7, 2010 Resolution of the COMELEC en banc.49 In
this March 25, 2010 Resolution, the COMELEC Second Division found:
An evaluation, however, of the evidence presented by the parties vis-à-vis the three
requirements for a successful change of domicile would show that the petitioner is correct.
First, the alleged residence of respondent is a mere beach house or a lodging house with a roof
made of pawid as shown in the Declaration of Real Property of Clara Espiritu Reyes, the wife of
the respondent. This description of the property is confirmed by two photographs attached to
the Memorandum of the petitioner. By its very nature, a beach house is a mere temporary abode,
a lodging house where people stay merely as transients. It is not meant to be a permanent place
to live in. As the Supreme Court declared in Dumpit Michelena v. Boado, a beach house is at
most a place of temporary relaxation and it can hardly be considered a place of residence. With
this kind of property, it can scarcely be said that respondent has the intention of remaining there
permanently or for an indefinite period of time.
Second, respondent has failed to show actual presence at his domicile of choice. Respondent
himself admitted that he goes only to Aborlan whenever he gets reprieves from work as most of
the time he stays at Puerto Princesa City, where he also resides with his wife. His witnesses
also confirm this saying that all Palaweños know that the office of the governor is at the capitol
of Puerto Princesa City, where respondent and his wife stay if there is work at the office.
However, considering that Aborlan is only about an hour’s away from Puerto Princesa, it is odd
that respondent and his wife never go home to Aborlan after office hours if he intended to
establish his domicile of choice in the said municipality. It is also unusual that respondent’s wife
still stays at Puerto Princesa City while she works as manager of Palawan Agricultural and
Animal Husbandy Corporation, which is based in Aborlan. This conduct is not indicative of an
intent to establish their domicile at Aborlan.
Third, respondent failed to show that he already cut his ties with Coron, Palawan as his domicle.
Although respondent declared that as early as 2008, he has already transferred his domicile at
Aborlan, still he secured his Community Tax Certificate (CTC) for the year 2009 at Coron.
Respondent tried to wiggle out from this tight spot by explaining that it was secured by his
secretary, who through force of habit inadvertently got it for him. However, such explanation
proved futile when respondent was confronted with the fact that he still used the said CTC in
establishing his identity when he signed a Special Power of Attorney on January 12, 2009 and
when he signed a contract in behalf of the Palawan Provincial Government on August 10, 2009
even when he has supposedly secured another CTC from Aborlan on April 7, 2009.
Thus, even in August of 2009, less than a year prior to the May 10, 2010 election, respondent
still portrayed himself as a resident of Coron. The intention then to abandon the said place as
his domicile is wanting.
Based on the foregoing discussions alone, it is at once apparent the three-point requirements
for the abandonment of a domicile and the establishment of a new one do not concur in the case
of the respondent.50
Contrary to the dissent’s view, no parallelism can be drawn between this ruling and the present
case, so that this ruling cannot apply to the latter.
First, the dissent’s citation of Justice Carpio-Morales’ explanatory note recommending the
dismissal of Reyes’ petition cannot be considered a precedent that should be made applicable
to the present case. The explanatory note, while reflective of the Court’s thinking, is not a
decision nor an opinion of the Court. It remains what its description connotes – an explanatory
note provided by one Justice and approved by the Court – and nothing more; what binds the
Court is its pronouncement that no grave abuse of discretion transpired in the COMELEC’s
consideration of the case. Under this legal situation, what assumes significance are the
COMELEC Resolutions that the Court effectively upheld when it issued the June 15, 2010
Minute Resolution dismissing Reyes’ petition.
Second, the factual circumstances in Reyes are entirely different from the present case; no
parallelism can be drawn so that the application of the ruling in Reyes cannot be bodily lifted
and applied to Mitra. In Reyes, the COMELEC ruled that Reyes committed a material
misrepresentation in his COC when he declared that his residence is Tigman, Aborlan, Palawan
and that he is eligible for the office he seeks to be elected to. The COMELEC so concluded after
it found that the evidence showed that Reyes failed to prove that (1) he had the intention to
remain permanently in Aborlan since his alleged residence is a mere beach house which by its
very nature is a temporary place of residence as held by the Court in Dumpit Michelana v.
Boado;51 2) he had actual presence at his domicile of choice; and (3) that he had already
transferred from his domicile (Coron, Palawan) to Tigman, Aborlan Palawan. The COMELEC
even found, on the matter of CTC, that Reyes consistently used his Coron CTC in his
transactions, thus negating his explanation that the CTC was procured without his knowledge
and consent.
In contrast, we found in the present case that Mitra did not deliberately misrepresent his Aborlan
residence to deceive or mislead the Palawan electorate since he in fact adduced positive
evidence of transfer of residence which the private respondents failed to sufficiently controvert.
In this regard, we noted with emphasis that Mitra undertook "incremental moves" to his new
domicile in Aborlan as evidenced by the following: (1) his expressed intent to transfer to a
residence outside of Puerto Princesa City to make him eligible for a provincial position; (2) his
preparatory moves starting in early 2008; (3) the transfer of registration as a voter in March
2009; (4) his initial transfer through a leased dwelling at Maligaya Feedmill; (5) the purchase of
a lot for his permanent home; and (6) the construction of a house on the said lot which is adjacent
to the premises he was leasing pending the completion of his house.52 The issue regarding
Mitra’s CTC, too, was satisfactorily explained and is far different from the obtaining facts in the
case of Reyes.
No occasion exists to apply the rule of the primacy of the will of people since Mitra did not commit
any deliberate misrepresentation; in fact, he proved that he transferred his residence to Aborlan
within the period required by law.
The dissent contends that Mitra’s election as Governor "did not render the present case moot
and academic or lift the statutory one-year residency requirement for him to qualify for the
gubernatorial post."53 The dissent apparently perceives Mitra’s electoral victory as a major
consideration in our Decision of July 2, 2010. Unfortunately, the dissent is mistaken in its
appreciation of the thrust of our Decision; we in fact ruled that no reason exists to appeal to the
primacy of the electorate’s will since Mitra did not commit any material misrepresentation in his
COC. We said:
We have applied in past cases the principle that the manifest will of the people as expressed
through the ballot must be given fullest effect; in case of doubt, political laws must be interpreted
to give life and spirit to the popular mandate. Thus, we have held that while provisions relating
to certificates of candidacy are in mandatory terms, it is an established rule of interpretation as
regards election laws, that mandatory provisions, requiring certain steps before elections, will
be construed as directory after the elections, to give effect to the will of the people.
[T]his Court has repeatedly stressed the importance of giving effect to the sovereign will in order
to ensure the survival of our democracy. In any action involving the possibility of a reversal of
the popular electoral choice, this Court must exert utmost effort to resolve the issues in a manner
that would give effect to the will of the majority, for it is merely sound public policy to cause
elective offices to be filled by those who are the choice of the majority. To successfully challenge
a winning candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility
is so patently antagonistic to constitutional and legal principles that overriding such ineligibility
and thereby giving effect to the apparent will of the people would ultimately create greater
prejudice to the very democratic institutions and juristic traditions that our Constitution and laws
so zealously protect and promote. [Emphasis supplied.]
With the conclusion that Mitra did not commit any material misrepresentation in his COC, we
see no reason in this case to appeal to the primacy of the electorate’s will. We cannot deny,
however, that the people of Palawan have spoken in an election where residency qualification
had been squarely raised and their voice has erased any doubt about their verdict on Mitra’s
qualifications.54
Under these terms, we cannot be any clearer.

Quite recently, however, we warned against a blanket and unqualified reading and application
of this ruling, as it may carry dangerous significance to the rule of law and the integrity of our
elections. For one, such blanket/unqualified reading may provide a way around the law that
effectively negates election requirements aimed at providing the electorate with the basic
information for an informed choice about a candidate’s eligibility and fitness for office. Short of
adopting a clear cut standard, we thus made the following clarification:
WHEREFORE, premises considered, we resolve to DENY with FINALITY, for lack of merit, the
motions for reconsideration and motion for oral arguments now before us. Let entry of judgment
be made in due course.
SO ORDERED.

We distinguish our ruling in this case from others that we have made in the past by the
clarification that COC defects beyond matters of form and that involve material
misrepresentations cannot avail of the benefit of our ruling that COC mandatory requirements
before elections are considered merely directory after the people shall have spoken. A
mandatory and material election law requirement involves more than the will of the people in
any given locality. Where a material COC misrepresentation under oath is made, thereby
violating both our election and criminal laws, we are faced as well with an assault on the will of
the people of the Philippines as expressed in our laws. In a choice between provisions on
material qualifications of elected officials, on the one hand, and the will of the electorate in any
given locality, on the other, we believe and so hold that we cannot choose the electorate will.

Earlier, Frivaldo v. COMELEC provided the following test:

G.R. No. 150605 December 10, 2002
EUFROCINO M. CODILLA, SR., petitioner,
vs.
HON. JOSE DE VENECIA, ROBERTO P. NAZARENO, in their official capacities as Speaker
and Secretary-General of the House of Representatives, respectively,
and MA. VICTORIA L. LOCSIN, respondents.
DECISION
PUNO, J.:
In a democracy, the first self-evident principle is that he who has been rejected by the people
cannot represent the people. Respondent Ma. Victoria L. Locsin lost to petitioner Eufrocino M.
Codilla, Sr. by 17,903 votes in the May 14, 2001 elections as Representative of the 4th legislative
district of Leyte. The most sophisticated legal alchemy cannot justify her insistence that she
should continue governing the people of Leyte against their will. The enforcement of the
sovereign will of the people is not subject to the discretion of any official of the land.
This is a Petition for Mandamus and Quo Warranto directed against respondents Speaker Jose
De Venecia and Secretary-General Roberto P. Nazareno of the House of Representatives to
compel them to implement the decision of the Commission on Elections en banc by (a)
administering the oath of office to petitioner as the duly-elected Representative of the 4th
legislative district of Leyte, and (b) registering the name of the petitioner in the Roll of Members
of the House of Representatives, and against respondent Ma. Victoria L. Locsin for usurping,
intruding into, and unlawfully holding and exercising the said public office on the basis of a void
proclamation.
The facts are uncontroverted. Petitioner and respondent Locsin were candidates for the position
of Representative of the 4th legislative district of Leyte during the May 14, 2001 elections. At
that time, petitioner was the Mayor of Ormoc City while respondent Locsin was the sitting
Representative of the 4th legislative district of Leyte. On May 8, 2001, one Josephine de la Cruz,
a registered voter of Kananga, Leyte, filed directly with the COMELEC main office a Petition for
Disqualification1 against the petitioner for indirectly soliciting votes from the registered voters of
Kananga and Matag-ob, Leyte, in violation of Section 68 (a) of the Omnibus Election Code. It
was alleged that the petitioner used the equipments and vehicles owned by the City Government
of Ormoc to extract, haul and distribute gravel and sand to the residents of Kananga and Matag-
ob, Leyte, for the purpose of inducing, influencing or corrupting them to vote for him. Attached
to the petition are the (a) Affidavits of Basilio Bates,2 Danilo D. Maglasang,3 Cesar A.
Laurente;4 (b) Joint Affidavit of Agripino C. Alferez and Rogelio T. Salvera;5 (c) Extract Records
from the Police Blotter executed by Police Superintendent Elson G. Pecho;6 and (d)
Photographs showing government dump trucks, haulers and surfacers and portions of public
roads allegedly filled-in and surfaced through the intercession of the respondent.7 The case was
docketed as SPA No. 01-208 and assigned to the COMELEC's Second Division.
On May 10, 2001, the COMELEC Second Division issued an Order delegating the hearing and
reception of evidence on the disqualification case to the Office of the Regional Director of Region
VIII.8 On May 11, 2001, the COMELEC Second Division sent a telegram informing the petitioner
that a disqualification case was filed against him and that the petition was remanded to the
Regional Election Director for investigation.9
At the time of the elections on May 14, 2001, the Regional Election Director had yet to
hear the disqualification case. Consequently, petitioner was included in the list of candidates
for district representative and was voted for. The initial results showed that petitioner was the
winning candidate.
On May 16, 2001, before the counting could be finished, respondent Locsin joined as intervenor
in SPA No. 128 and filed a "Most Urgent Motion to Suspend Proclamation of
Respondent [herein petitioner]" with the COMELEC Second Division.10 Respondent Locsin
alleged that "the evidence on record against respondent is very strong and unless rebutted
remains." She urged the Commission to set the hearing of the disqualification case and prayed
for the suspension of the proclamation of the respondent "so as not to render the present
disqualification case moot and academic." A copy of the Motion was allegedly served on
petitioner by registered mail but no registry receipt was attached thereto.11
On May 18, 2001, respondent Locsin filed a "Second Most Urgent Motion to Suspend
Proclamation of Respondent" stating "there is clear and convincing evidence showing that the
respondent is undoubtedly guilty of the charges against him and this remains unrebutted by the
respondent." A copy of the Motion was sent to the petitioner and the corresponding registry
receipt was attached to the pleading.12 The records, however, do not show the date the petitioner
received the motion.
On the same day, May 18, 2001, the COMELEC Second Division issued an Ex-Parte
Order13 directing the Provincial Board of Canvassers of Leyte to suspend the proclamation of
petitioner in case he obtains the highest number of votes by reason of "the seriousness of the
allegations in the petition for disqualification."14 It also directed the Regional Election Director to
speed up the reception of evidence and to forward immediately the complete records together
with its recommendation to the Office of the Clerk of the Commission.15 As a result, petitioner
was not proclaimed as winner even though the final election results showed that he garnered
71,350 votes as against respondent Locsin's 53,447 votes.16
At the time that the COMELEC Second Division issued its Order suspending his proclamation,
the petitioner has yet to be summoned to answer the petition for disqualification. Neither has
said petition been set for hearing. It was only on May 24, 2001 that petitioner was able to file an
Answer to the petition for his disqualification with the Regional Election Director, alleging that:
(a) he has not received the summons together with the copy of the petition; (b) he became aware
of the matter only by virtue of the telegram sent by the COMELEC Second Division informing
him that a petition was filed against him and that the Regional Election Director was directed to
investigate and receive evidence therewith; and (c) he obtained a copy of the petition from the
COMELEC Regional Office No. 8 at his own instance.17 Petitioner further alleged that the
maintenance, repair and rehabilitation of barangay roads in the municipalities of Matag-ob and
Kananga were undertaken without his authority, participation or directive as City Mayor of
Ormoc. He attached in his Answer the following: (a) Affidavit of Alex B. Borinaga;18 (b) Copy of
the Excerpt from the Minutes of the Regular Session of Barangay Monterico;19 (c) Affidavit of
Wilfredo A. Fiel;20 (d) Supplemental Affidavit of Wilfredo A. Fiel;21 and (e) Affidavit of Arnel Y.
Padayao.22
On May 25, 2001, petitioner filed a Motion to Lift Order of Suspension,23 alleging that (a) he
did not receive a copy of the Motion to Suspend his Proclamation and hence, was denied the
right to rebut and refute the allegations in the Motion; (b) that he did not receive a copy of the
summons on the petition for disqualification and after personally obtaining a copy of the petition,
filed the requisite answer only on May 24, 2001; and (c) that he received the telegraph Order of
the COMELEC Second Division suspending his proclamation only on May 22, 2001. He
attached documentary evidence in support of his Motion to Lift the Suspension of his
proclamation, and requested the setting of a hearing on his Motion.24
On May 30, 2001, an oral argument was conducted on the petitioner's Motion and the parties
were ordered to submit their respective memoranda.25 On June 4, 2001, petitioner submitted his
Memorandum26 in support of his Motion assailing the suspension of his proclamation on the
grounds that: (a) he was not afforded due process; (b) the order has no legal and factual basis;
and (c) evidence of his guilt is patently inexistent for the purpose of suspending his proclamation.
He prayed that his proclamation as winning congressional candidate be expediently made, even
while the disqualification case against him continue upon due notice and hearing. He attached
the following additional evidence in his Memorandum: (a) Copy of certification issued by PNP
Senior Inspector Benjamin T. Gorre;27 (b) Certification issued by Elena S. Aviles, City Budget
Officer;28 (c) Copy of certification issued by Wilfredo A. Fiel, City Engineer of Ormoc;29 (d) Joint
Affidavit of Antonio Patenio and Pepito Restituto;30 and (e) Affidavits of Demetrio
Brion,31 Igmedio Rita32 and Gerardo Monteza.33 Respondent Locsin's memorandum also
contained additional affidavits of his witnesses.34
Petitioner's Motion to Lift the Order of Suspension, however, was not resolved. Instead,
on June 14, 2001, the COMELEC Second Division promulgated its Resolution35 in SPA No.
01-208 which found the petitioner guilty of indirect solicitation of votes and ordered
his disqualification. It directed the "immediate proclamation of the candidate who garnered
the highest number of votes xxx." A copy of said Resolution was sent by fax to the counsel
of petitioner in Cebu City in the afternoon of the following day.36
By virtue of the said Resolution, the votes cast for petitioner, totaling 71,350, were declared
stray even before said Resolution could gain finality. On June 15, 2001, respondent Locsin
was proclaimed as the duly elected Representative of the 4th legislative district of Leyte by the
Provincial Board of Canvassers of Leyte. It issued a Certificate of Canvass of Votes and
Proclamation of the Winning Candidates for Member of the House of Representatives stating
that "MA. VICTORIA LARRAZABAL LOCSIN obtained a total of FIFTY THREE THOUSAND
FOUR HUNDRED FORTY SEVEN (53,447) votes representing the highest number of
votes legally cast in the legislative district for said office."37 Respondent Locsin took her oath
of office on June 18, 2001 and assumed office on June 30, 2001.
On June 20, 2001, petitioner seasonably filed with the COMELEC en banc a Motion for
Reconsideration38 from the June 14, 2001 Resolution of the COMELEC Second Division which
ordered his disqualification, as well as an Addendum to the Motion for
Reconsideration.39 Petitioner alleged in his Motion for Reconsideration that the COMELEC
Second Division erred: (1) in disqualifying petitioner on the basis solely of the dubious
declaration of the witnesses for respondent Locsin; (2) in adopting in toto the allegations of the
witnesses for respondent Locsin; and (3) in promulgating the resolution in violation of its own
rules of procedure and in directing therein the immediate proclamation of the second highest
'vote getter.' Respondent Locsin and her co-petitioner in SPA No. 01-208 filed a joint Opposition
to the Motion for Reconsideration.40
On June 21, 2001, petitioner filed with the COMELEC en banc a Petition for Declaration of
Nullity of Proclamation,41 docketed as SPC No. 01-324, assailing the validity of the
proclamation of respondent Locsin who garnered only the second highest number of votes.
Respondent Locsin filed her Answer alleging that: (1) the Commission lost jurisdiction to hear
and decide the case because of the proclamation of Locsin and that any question on the
"election, returns, and qualification" of Locsin can only be taken cognizance of by the House of
Representatives Electoral Tribunal (HRET); (2) the case should be filed and heard in the first
instance by a Division of the Commission and not directly by the Commission en banc; and (3)
the proclamation of Locsin was valid because she received the highest number of valid votes
cast, the votes of Codilla being stray.
On June 28, 2001, petitioner filed an Urgent Manifestation42 stating that he was deprived of a
fair hearing on the disqualification case because while the documentary evidence adduced
in his Memorandum was in support of his Motion for the lifting of the suspension of his
proclamation, the COMELEC Second Division instead ruled on the main disqualification
case. In consonance with his prayer that a full-dress hearing be conducted on the
disqualification case, he submitted Affidavits of additional witnesses43 which he claims would
refute and substantially belie the allegations of petitioner's/intervenor's witnesses. A
Reply,44 Rejoinder45 and Sur-Rejoinder46 were respectively filed by the parties. Consequently,
the motion for reconsideration in SPA No. 01-208 and the petition for declaration of nullity in
SPC No. 01-324 were submitted for resolution.
From the records, it appears that initially, a "Resolution" penned by Commissioner Rufino S.B.
Javier, dated July 24, 2001, was submitted to the Office of the Chairman, dismissing the petition
for declaration of nullity for lack of jurisdiction and denying the motion for reconsideration filed
by petitioner Codilla.47 Commissioners Florentino A. Tuason, Jr. and Resurreccion Z. Borra
submitted their respective dissenting opinions48 to the Javier resolution. It bears emphasis that
Commissioner Tuason, Jr. was the ponente of the Resolution of the COMELEC Second Division
which ordered the disqualification of petitioner but after considering the additional evidence
presented by the latter, he concluded that the totality of the evidence was clearly in petitioner's
favor. Equally worth mentioning is the fact that Commissioner Ralph C. Lantion, who was the
Presiding Commissioner of the Second Division, also dissented and voted to grant Codilla's
motion for reconsideration on the ground that "[T]he people of Leyte have spoken and I respect
the electorate's will. x x x." 49
On August 29, 2001, then COMELEC Chairman Alfredo L. Benipayo issued a "Vote and Opinion
and Summary of Votes" reversing the resolution of the Second Division and declaring the
proclamation of respondent Locsin as null and void. The dispositive portion reads:
"JUDGMENT
WHEREFORE, in view of all the foregoing considerations, I concur with Commissioner
Resurreccion Z. Borra, Commissioner Florentino A. Tuason, Jr. and Commissioner Ralph C.
Lantion, in SPA No. 01-208, to GRANT the motion for reconsideration and to REVERSE the
resolution of the Commission (Second Division) promulgated on June 1, 2001, disqualifying
Codilla; and subsequently, in SPC No. 01-324, to GRANT the petition of Eufrocino M. Codilla,
Sr., and declare as null and void the proclamation of losing candidate Locsin.
Accordingly:
1. On the Motion for Reconsideration of the disqualification resolution against Codilla,
promulgated by the Commission (Second Division) on June 14, 2001 (SPA No. 01-208),
I vote:
(a) to GRANT the Motion for Reconsideration of respondent-movant Eufrocino
M. Codilla, Sr., and to REVERSE the Resolution of the Commission (Second
Division) promulgated on June 14, 2001, for insufficiency of evidence;
(b) to lift the order of suspension of proclamation of petitioner Codilla, issued by
the Commission (Second Division) on May 18, 2001, having been issued without
hearing and without any finding that the evidence of guilt of petitioner Codilla is
strong and, thus, null and void;
(c) to nullify the order contained in the Resolution of the Commission (Second
Division) promulgated on June 14, 2001, for "(t)he immediate proclamation of
the candidate who garnered the highest number of votes, to the exclusion of
respondent" and the concurrent order for "the Provincial Board of Canvasser
(sic) of Leyte to immediately reconvene and thereafter proclaim forthwith the
candidate who obtained the highest number of votes counting out the
Respondent" the same being violative of election laws, established
jurisprudence, and resolutions of the Commission;
(d) to nullify the ruling contained in the Resolution of the Commission (Second
Division) promulgated o June 14, 2001, that the votes of respondent Codilla are
"considered stray and invalid" said ruling being issued on the basis of an
inapplicable decision, and contrary to established jurisprudence;
(e) to order the Provincial Board of Canvassers of Leyte, upon the finality of this
resolution, to reconvene and proclaim petitioner Codilla as the winning candidate
for Representative of the Fourth Legislative district of Leyte to comply with its
ministerial duty to proclaim the candidate who garnered the highest number of
votes in the elections for that position; and
(f) to order intervenor-oppositor Locsin, upon the finality of this resolution, to
vacate the office of Representative of the House of Representatives
representing the Fourth legislative district of Leyte and, for this purpose, to
inform the House of Representatives through the Honorable Speaker of this
resolution for its attention and guidance; and
2. On the petition for Declaration of Nullity of proclamation of respondent Ma. Victoria L. Locsin
(SPC No. 01-324), I vote:
 (a) to GRANT the petition of Eufrocino M. Codilla, Sr., and declare as null and void the
proclamation of losing candidate Locsin, the proclamation being violative of election
laws, established jurisprudence, and resolutions of the Commission on Elections;
(b) to lift the order of suspension of proclamation of petitioner Codilla, issued by the
Commission (Second Division) on May 18, 2001, in SPA No. 01-208, having been issued
without hearing and without any finding that the evidence of guilt of petitioner Codilla is
strong and, thus, null and void;
(c) to nullify the order contained in the Resolution of the Commission (Second Division)
promulgated on June 14, 2001, in SPA No. 01-208, for "(t)he immediate proclamation of
the candidate who garnered the highest number of votes, to the exclusion of respondent"
and the concurrent order for "the provincial Board of Canvasser (sic) of Leyte to
immediately reconvene and thereafter proclaim forthwith the candidate who obtained
the highest number of votes counting out the Respondent" the same being violative of
election laws, established jurisprudence, and resolutions of the Commission;
(d) to nullify the ruling contained in the Resolution of the Commission (Second Division)
promulgated on June 14, 2001, in SPA No. 01-208, that the votes of respondent Codilla
are "considered stray and invalid" said ruling being issued on the basis of an inapplicable
decision, and contrary to established jurisprudence;
(e) to order the provincial Board of Canvassers of Leyte, upon the finality of this
resolution, to reconvene and proclaim petitioner Codilla as the winning candidate for
Representative of the Fourth legislative district of Leyte he (sic) having garnered the
highest number of votes in the elections for the position; and
(f) to order respondent Locsin, upon the finality of this resolution, to vacate the office of
Representative of the House of Representatives representing the Fourth Legislative
district of Leyte and, for this purpose, to inform the House of Representatives through
the Honorable Speaker of this resolution for its attention and guidance.
Summary of Votes
Considering the FOUR (4) VOTES of the Chairman and Commissioners Resurreccion Z. Borra,
Florentino A. Tuason, Jr., and Ralph C. Lantion, to grant the Motion for Reconsideration of
Codilla and reverse the disqualification Resolution of the Commission (Second Division) in SPA
No. 01-208, promulgated on June 14, 2001, and as an inevitable consequence, in voting to grant
the petition for declaration of nullity of the proclamation of Ma. Victoria L. Locsin in SPC No. 01-
324, the verdict/opinion of the Chairman and the three (3) Commissioners taken together now
stands, as it is, the MAJORITY DECISION of the Commission En Banc in both cases; and the
"Resolution" submitted by three (3) Commissioners, namely, Commissioner Rufino S.B. Javier,
Commissioner Luzviminda G. Tancangco, and Commissioner Mehol K. Sadain, is considered,
as it is, the MINORITY DECISION of the Commission En Banc in both cases.
The MAJORTIY DECISION was arrived at after proper consultation with those who joined the
majority. The Chairman and the three (3) Commissioners comprising the majority decided that
no one will be assigned to write a Majority Decision. Instead, each one will write his own separate
opinion. Commissioners Borra, Tuason, Jr. and the undersigned Chairman submitted separate
opinions. Commissioner Lantion wrote an explanation on his vote."50
The aforequoted judgment was adopted in a "Vote of Adoption" signed by Commissioners Ralph
C. Lantion, Resurreccion Z. Borra and Florentino A. Tuason, Jr.51
Respondent Locsin did not appeal from this decision annulling her proclamation. Instead,
she filed a "Comment and Manifestation"52 with the COMELEC en banc questioning the
procedure and the manner by which the decision was issued. In addition, respondent Locsin
requested and was issued an opinion by House of Representatives Executive Director and Chief
Legal Counsel Leonardo B. Palicte III declaring that the COMELEC has no jurisdiction to nullify
the proclamation of respondent Locsin after she had taken her oath and assumed office since it
is the HRET which is the sole judge of election, returns and qualifications of Members of the
House.53 Relying on this opinion, respondent Locsin submitted a written privileged speech to the
House during its regular session on September 4, 2001, where she declared that she will not
only disregard but will openly defy and disobey the COMELEC en banc resolution ordering her
to vacate her position.54
On September 6, 2001, the COMELEC en banc issued an Order55 constituting the members of
the Provincial Board of Canvassers of Leyte to implement the aforesaid decision. It likewise
ordered the Board to reconvene and "proclaim the candidate who obtained the highest number
of votes in the district, as the duly-elected Representative of the Fourth Legislative district of
Leyte, and accordingly issue a Certificate of Canvass and Proclamation of Winning Candidate
for Member of the House of Representatives x x x, based on the city/municipal certificates of
canvass submitted beforehand to the previous Provincial Board of Canvassers of Leyte x x x."
On September 12, 2001, petitioner Codilla was proclaimed by the Provincial Board of
Canvassers as the duly-elected Representative of the 4th legislative district of Leyte,
having obtained a total of 71,350 votes representing the highest number of votes cast in the
district.56 On the same day, petitioner took his oath of office before Executive Judge Fortunito L.
Madrona of the Regional Trial Court of Ormoc City.57
On September 14, 2001, petitioner wrote the House of Representatives, thru respondent
Speaker De Venecia, informing the House of the August 29, 2001 COMELEC en banc resolution
annulling the proclamation of respondent Locsin, and proclaiming him as the duly-elected
Representative of the 4th legislative district of Leyte.58 Petitioner also served notice that "I am
assuming the duties and responsibilities as Representative of the fourth legislative district of
Leyte to which position I have been lawfully elected and proclaimed. On behalf of my
constituents, I therefore expect that all rights and privileges intended for the position of
Representative of the fourth legislative district of Leyte be accorded to me, including all physical
facilities and staff support." On the basis of this letter, a Memorandum59 dated October 8, 2001
was issued by Legal Affairs Deputy Secretary-General Gaudencio A. Mendoza, Jr., for Speaker
De Venecia, stating that "there is no legal obstacle to complying with the duly promulgated –
and now final and executory – COMELEC Decision of August 29, 2001 x x x."
These notwithstanding, and despite receipt by the House of Representatives of a copy of the
COMELEC en banc resolution on September 20, 2001,60 no action was taken by the House on
the letter-appeal of petitioner. Hence, petitioner sought the assistance of his party, LAKAS-
NUCD-UMDP, which sent a letter61 addressed to respondent Speaker De Venecia, dated
October 25, 2001, and signed by Party President Teofisto T. Guingona, Jr., Secretary-General
Heherson T. Alvarez, and Region VIII Party Chairman Sergio Antonio F. Apostol, requesting the
House of Representatives to act decisively on the matter in order that petitioner "can avail of
whatever remedy is available should their action remain unfavorable or otherwise undecisive."
In response, Speaker De Venecia sent a letter62 dated October 30, 2001, stating that:
"We recognize the finality of the COMELEC decision and we are inclined to sustain it. However,
Rep. Locsin has officially notified the HOUSE in her privilege speech, inserted in the HOUSE
Journal dated September 4, 2001, that she shall 'openly defy and disobey' the COMELEC ruling.
This ultimately means that implementing the decision would result in the spectacle of having two
(2) legislators occupying the same congressional seat, a legal situation, the only consideration,
that effectively deters the HOUSE's liberty to take action.
In this light, the accepted wisdom is that the implementation of the COMELEC decision
is a matter that can be best, and with finality, adjudicated by the Supreme Court, which,
hopefully, shall act on it most expeditiously." (emphases supplied)
Hence, the present petition for mandamus and quo warranto.
Petitioner submits that by virtue of the resolution of the COMELEC en banc which has become
final and executory for failure of respondent Locsin to appeal therefrom, it has become the
ministerial duty: (1) of the Speaker of the House of Representatives, as its Administrative Head
and Presiding Officer, to implement the said resolution of the COMELEC en banc by installing
him as the duly-elected Representative of the 4th legislative district of Leyte; and (2) of the
Secretary-General, as official custodian of the records of the House, to formally register his
name in the Roll of Members of the House and delete the name of respondent Locsin therefrom.
Petitioner further contends that respondent Locsin has been usurping and unlawfully holding the
public office of Representative of the 4th legislative district of Leyte considering that her
premature proclamation has been declared null and void by the COMELEC en banc. He alleges
that the action or inaction of public respondents has deprived him of his lawful right to assume
the office of Representative of the 4th legislative district of Leyte.
In his Comment,63 public respondent Speaker De Venecia alleged that mandamus will not lie to
compel the implementation of the COMELEC decision which is not merely a ministerial duty but
one which requires the exercise of discretion by the Speaker of the House considering that: (1)
it affects the membership of the House; and (2) there is nothing in the Rules of the House of
Representatives which imposes a duty on the House Speaker to implement a COMELEC
decision that unseats an incumbent House member.
In his Comment,64 public respondent Secretary-General Nazareno alleged that in reading the
name of respondent Locsin during the roll call, and in allowing her to take her oath before the
Speaker-elect and sit as Member of the House during the Joint Session of Congress, he was
merely performing official acts in compliance with the opinions65 rendered by House of
Representatives Chief Counsel and Executive Director Leonardo C. Palicte III stating that the
COMELEC has no jurisdiction to declare the proclamation of respondent Locsin as null and void
since it is the HRET which is the sole judge of all election, returns and qualifications of Members
of the House. He also contends that the determination of who will sit as Member of the House
of Representatives is not a ministerial function and cannot, thus, be compelled by mandamus.
Respondent Locsin, in her Comment,66 alleged that the Supreme Court has no original
jurisdiction over an action for quo warranto involving a member of the House of Representatives
for under Section 17, Article VI of the Constitution it is the HRET which is the sole judge of all
contests relating to the election, returns and qualifications of Members of the House of
Representatives. She likewise asserts that this Court cannot issue the writ of mandamus against
a co-equal legislative department without grossly violating the principle of separation of powers.
She contends that the act of recognizing who should be seated as a bona fide member of the
House of Representatives is not a ministerial function but a legislative prerogative, the
performance of which cannot be compelled by mandamus. Moreover, the prayer for a writ of
mandamus cannot be directed against the Speaker and Secretary-General because they do not
have the authority to enforce and implement the resolution of the COMELEC.
Additionally, respondent Locsin urges that the resolution of the COMELEC en banc is null and
void for lack of jurisdiction. First, it should have dismissed the case pending before it after her
proclamation and after she had taken her oath of office. Jurisdiction then was vested in the
HRET to unseat and remove a Member of the House of Representatives. Second, the petition
for declaration of nullity is clearly a pre-proclamation controversy and the COMELEC en banc
has no original jurisdiction to hear and decide a pre-proclamation controversy. It must first be
heard by a COMELEC Division. Third, the questioned decision is actually a "hodge-podge"
decision because of the peculiar manner in which the COMELEC disposed of the case.
Finally, respondent Locsin asserts that the matter of her qualification and eligibility has been
categorically affirmed by the HRET when it dismissed the quo warranto case filed against her,
docketed as HRET Case No. 01-043, entitled "Paciano Travero vs. Ma. Victoria Locsin," on
the ground that "the allegations stated therein are not proper grounds for a petition for quo
warranto against a Member of the House of Representatives under section 253 of the Omnibus
Election Code and Rule 17 of the HRET Rules, and that the petition was filed late."67
In his Reply,68 petitioner asserts that the remedy of respondent Locsin from the COMELEC
decision was to file a petition for certiorari with the Supreme Court, not to seek an opinion from
the Chief Legal Counsel of the House of Representatives; that the HRET has no jurisdiction over
a petition for declaration of nullity of proclamation which is based not on ineligibility or disloyalty,
but by reason that the candidate proclaimed as winner did not obtain the highest number of
votes; that the petition for annulment of proclamation is a pre-proclamation controversy and,
hence, falls within the exclusive jurisdiction of the COMELEC pursuant to section 242 of B.P.
Blg. 88169 and section 3, Article IX (C) of the Constitution; that respondent Speaker De Venecia
himself recognizes the finality of the COMELEC decision but has decided to refer the matter to
the Supreme Court for adjudication; that the enforcement and implementation of a final decision
of the COMELEC involves a ministerial act and does not encroach on the legislative power of
Congress; and that the power to determine who will sit as Member of the House does not involve
an exercise of legislative power but is vested in the sovereign will of the electorate.
The core issues in this case are: (a) whether the proclamation of respondent Locsin by the
COMELEC Second Division is valid; (b) whether said proclamation divested the COMELEC en
banc of jurisdiction to review its validity; and (c) assuming the invalidity of said proclamation,
whether it is the ministerial duty of the public respondents to recognize petitioner Codilla, Sr. as
the legally elected Representative of the 4th legislative district of Leyte vice respondent Locsin.
I v, and cc, sub-paragraph 6 of the Omnibus Election Code, shall be disqualified
Whether the proclamation of respondent Locsin is valid.
After carefully reviewing the records of this case, we find that the proclamation of respondent
Locsin is null and void for the following reasons:
First. The petitioner was denied due process during the entire proceedings leading to the
proclamation of respondent Locsin.
COMELEC Resolution Nos. 340270 sets the procedure for disqualification cases pursuant to
section 68 of the Omnibus Election Code, viz:
"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 and the verified petition to disqualify a candidate for lack of qualifications
or possessing same grounds for disqualification, may be filed any day after the last day
for 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 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;
2.b having committed acts of terrorism to enhance his candidacy;
2.c having spent in his election campaign an amount in excess of that allowed
by the Omnibus Election Code;
2.d having solicited, received or made any contribution prohibited under
Sections 89, 95, 96, 97 and 104 of the Omnibus Election Code;
2.e having violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k,
from continuing as a candidate, or if he has been elected, from holding the office.
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(4) Upon payment of the filing fee of P1,000.00 and legal research fee of P20.00, the
offices concerned shall docket the petition and assign to it a docket number which must
 be consecutive, according to the order of receipt and must bear the year and prefixed
as SPA with the corresponding initial of the name of the office, i.e. SPA (RED) No. C01-
001; SPA (PES) No. C01-001;
(5) Within three (3) days from filing of the petitions, the offices concerned shall issue
summons to the respondent candidate together with a copy of the petition and its
enclosures, if any;
(6) The respondent shall be given three (3) days from receipt of summons within which
to file his verified answer (not a motion to dismiss) to the petition in ten (10) legible
copies, serving a copy thereof upon the petitioner. Grounds for Motion to Dismiss may
be raised as an affirmative defense;
(7) The proceeding shall be summary in nature. In lieu of the testimonies, the parties
shall submit their affidavits or counter-affidavits and other documentary evidences
including their position paper;
(8) The hearing must be completed within ten (10) days from the date of the filing of the
answer. The hearing officer concerned shall submit to the Clerk of the Commission
through the fastest means of communication, his findings, reports and recommendations
within five (5) days from the completion of the hearing and reception of evidence together
with the complete records of the case;
(9) Upon receipt of the records of the case of the findings, reports and recommendation
of the hearing officer concerned, the Clerk of the Commission shall immediately docket
the case consecutively and calendar the same for raffle to a division;
(10) The division to whom the case is raffled, shall after consultation, assign the same
to a member who shall pen the decision, within five (5) days from the date of
consultation."
Resolution No. 3402 clearly requires the COMELEC, through the Regional Election Director, to
issue summons to the respondent candidate together with a copy of the petition and its
enclosures, if any, within three (3) days from the filing of the petition for disqualification.
Undoubtedly, this is to afford the respondent candidate the opportunity to answer the allegations
in the petition and hear his side. To ensure compliance with this requirement, the COMELEC
Rules of Procedure requires the return of the summons together with the proof of service to the
Clerk of Court of the COMELEC when service has been completed, viz:
"Rule 14. Summons
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Section 5. Return.- When the service has been completed by personal service, the server shall
give notice thereof, by registered mail, to the protestant or his counsel and shall return the
summons to the Clerk of Court concerned who issued it, accompanied with the proof of service.
Section 6. Proof of Service.- Proof of service of summons shall be made in the manner provided
for in the Rules of Court in the Philippines."
Thereafter, hearings, to be completed within ten (10) days from the filing of the Answer, must
be conducted. The hearing officer is required to submit to the Clerk of the Commission his
findings, reports and recommendations within five (5) days from the completion of the hearing
and reception of evidence together with the complete records of the case.
(a) Petitioner was not notified of the petition for his disqualification through the service
of summons nor of the Motions to suspend his proclamation.
The records of the case do not show that summons was served on the petitioner. They do not
contain a copy of the summons allegedly served on the petitioner and its corresponding proof
of service. Furthermore, private respondent never rebutted petitioner's repeated assertion that
he was not properly notified of the petition for his disqualification because he never received
summons.71 Petitioner claims that prior to receiving a telegraphed Order from the COMELEC
Second Division on May 22, 2001, directing the District Board of Canvassers to suspend his
proclamation, he was never summoned nor furnished a copy of the petition for his
disqualification. He was able to obtain a copy of the petition and the May 22 Order of the
COMELEC Second Division by personally going to the COMELEC Regional Office on May 23,
2001. Thus, he was able to file his Answer to the disqualification case only on May 24, 2001.
More, the proclamation of the petitioner was suspended in gross violation of section 72 of the
Omnibus Election Code which provides:
"Sec. 72. Effects of disqualification cases and priority.- The Commission and the courts shall
give priority to cases of disqualification by reason of violation of this Act to the end that a final
decision shall be rendered not later than seven days before the election in which the
disqualification is sought.
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. Nevertheless, 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, his violation of the provisions
of the preceding sections shall not prevent his proclamation and assumption to
office." (emphases supplied)
In the instant case, petitioner has not been disqualified by final judgment when the elections
were conducted on May 14, 2001. The Regional Election Director has yet to conduct hearing on
the petition for his disqualification. After the elections, petitioner was voted in office by a wide
margin of 17,903. On May 16, 2001, however, respondent Locsin filed a Most Urgent Motion for
the suspension of petitioner's proclamation. The Most Urgent Motion contained a statement to
the effect that a copy was served to the petitioner through registered mail. The records reveal
that no registry receipt was attached to prove such service.72 This violates COMELEC Rules of
Procedure requiring notice and service of the motion to all parties, viz:
"Section 4. Notice.- Notice of a motion shall be served by the movant to all parties concerned,
at least three (3) days before the hearing thereof, together with a copy of the motion. For good
cause shown, the motion may be heard on shorter notice, especially on matters which the
Commission or the Division may dispose of on its own motion.
The notice shall be directed to the parties concerned and shall state the time and place of the
hearing of the motion.
Section 5. Proof of Service.- No motion shall be acted upon by the Commission without proof of
service of notice thereof, except when the Commission or a Division is satisfied that the rights
of the adverse party or parties are not affected."
Respondent's Most Urgent Motion does not fall under the exceptions to notice and service of
motions. First, the suspension of proclamation of a winning candidate is not a matter which the
COMELEC Second Division can dispose of motu proprio. Section 6 of R.A. No. 664673 requires
that the suspension must be "upon motion by the complainant or any intervenor", viz:
"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 (COMELEC) shall continue with the trial or 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." (emphases supplied)
Second, the right of an adverse party, in this case, the petitioner, is clearly affected. Given the
lack of service of the Most Urgent Motion to the petitioner, said Motion is a mere scrap of
paper.74 It cannot be acted upon by the COMELEC Second Division.
On May 18, 2001 at exactly 5:00 p.m.,75 respondent Locsin filed a Second Most Urgent Motion
for the suspension of petitioner's proclamation. Petitioner was served a copy of the Second
Motion again by registered mail. A registry receipt76 was attached evidencing service of the
Second Most Urgent Motion to the petitioner but it does not appear when the petitioner received
a copy thereof. That same day, the COMELEC Second Division issued an Order suspending
the proclamation of petitioner. Clearly, the petitioner was not given any opportunity to contest
the allegations contained in the petition for disqualification. The Order was issued on the very
same day the Second Most Urgent Motion was filed. The petitioner could not have received the
Second Most Urgent Motion, let alone answer the same on time as he was served a copy thereof
by registered mail.
Under section 6 of R.A. No. 6646, the COMELEC can suspend proclamation only when evidence
of the winning candidate's guilt is strong. In the case at bar, the COMELEC Second Division
did not make any specific finding that evidence of petitioner's guilt is strong. Its only basis
in suspending the proclamation of the petitioner is the "seriousness of the allegations" in the
petition for disqualification. Pertinent portion of the Order reads:
"Without giving due course to the petition xxx the Commission (2nd Division), pursuant to Section
72 of the Omnibus Election Code in relation to Section 6, Republic Act No. 6646 xxx
and considering the serious allegations in the petition, hereby directs the Provincial
Board of Canvassers of Leyte to suspend the proclamation of respondent, if winning,
until further orders."77 (emphases supplied)
We hold that absent any finding that the evidence on the guilt of the petitioner is strong, the
COMELEC Second Division gravely abused its power when it suspended his proclamation.
(b) The COMELEC Second Division did not give ample opportunity to the petitioner to
adduce evidence in support of his defense in the petition for his disqualification.
All throughout the proceeding, no hearing was conducted on the petition for disqualification in
gross violation of section 6 of R.A. No. 6646 which specifically enjoins the COMELEC to
"continue with the trial or hearing of the action, inquiry, or protest." This is also in violation
of COMELEC Resolution No. 3402 requiring the Regional Election Director to complete the
hearing and reception of evidence within ten (10) days from the filing of the Answer, and to
submit his findings, reports, and recommendations within the five (5) days from completion of
the hearing and the reception of evidence.
Petitioner filed a Motion to Lift the Order of Suspension of his proclamation on May 25, 2001.
Although an oral argument on this Motion was held, and the parties were allowed to file their
respective memoranda, the Motion was not acted upon. Instead, the COMELEC Second
Division issued a Resolution on the petition for disqualification against the petitioner. It was
based on the following evidence: (a) the affidavits attached to the Petition for Disqualification;
(b) the affidavits attached to the Answer; and (c) the respective memoranda of the parties.
On this score, it bears emphasis that the hearing for Motion to Lift the Order of Suspension
cannot be substituted for the hearing in the disqualification case. Although intrinsically linked, it
is not to be supposed that the evidence of the parties in the main disqualification case are the
same as those in the Motion to Lift the Order of Suspension. The parties may have other
evidence which they may deem proper to present only on the hearing for the disqualification
case. Also, there may be evidence which are unavailable during the hearing for the Motion to
Lift the Order of Suspension but which may be available during the hearing for the
disqualification case.
In the case at bar, petitioner asserts that he submitted his Memorandum merely to support his
Motion to Lift the Order of Suspension. It was not intended to answer and refute the
disqualification case against him. This submission was sustained by the COMELEC en banc.
Hence, the members of the COMELEC en banc concluded, upon consideration of the additional
affidavits attached in his Urgent Manifestation, that the evidence to disqualify the petitioner was
insufficient. More specifically, the ponente of the challenged Resolution of the COMELEC
Second Division held:
"Indeed, I find from the records that the May 30, 2001 hearing of the COMELEC (Second
Division) concerns only the incident relating to the Motion to Lift Order of Suspension of
Proclamation. It also appears that the order for the submission of the parties' respective
memoranda was in lieu of the parties' oral argument on the motion. This would explain the fact
that Codilla's Memorandum refers mainly to the validity of the issuance of the order of
suspension of proclamation. There is, however, no record of any hearing on the urgent motion
for the suspension of proclamation. Indeed, it was only upon the filing of the Urgent
Manifestation by Codilla that the Members of the Commission (Second Division) and
other Members of the Commission en banc had the opportunity to consider Codilla's
affidavits. This time, Codilla was able to present his side, thus, completing the
presentation of evidentiary documents from both sides."78 (emphases supplied)
Indeed, careful reading of the petitioner's Memorandum shows that he confined his arguments
in support of his Motion to Lift the Order of Suspension. In said Memorandum, petitioner raised
the following issues: (a) he was utterly deprived of procedural due process, and consequently,
the order suspending his proclamation is null and void; (b) the said order of suspension of
proclamation has no legal and factual basis; and (c) evidence of guilt on his part is patently
inexistent for the purpose of directing the suspension of his proclamation.79 He urged the
COMELEC Second Division to conduct a full dress hearing on the main disqualification case
should the suspension be lifted.80
(c) the Resolution of the COMELEC Second Division disqualifying the petitioner is not
based on substantial evidence.
The Resolution of the COMELEC Second Division cannot be considered to be based on
substantial evidence. It relied merely on affidavits of witnesses attached to the petition for
disqualification. As stressed, the COMELEC Second Division gave credence to the affidavits
without hearing the affiants. In reversing said Resolution, the COMELEC en banc correctly
observed:
"Lacking evidence of Codilla, the Commission (Second Division) made its decisions based
mainly on the allegation of the petitioner and the supporting affidavits. With this lopsided
evidence at hand, the result was predictable. The Commission (Second Division) had no choice.
Codilla was disqualified."81
Worse, the Resolution of the COMELEC Second Division, even without the evidence coming
from the petitioner, failed to prove the gravamen of the offense for which he was charged.82
Petitioner allegedly violated section 68 (a) of the Omnibus Election Code which reads:
"Section 68. Disqualifications.- 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 of having
(a) given money or other material consideration to influence, induce or corrupt the voters or
public officials performing official functions, xxx shall be disqualified from continuing as
candidate, or if he has been elected, from holding office"
To be disqualified under the above-quoted provision, the following elements must be proved: (a)
the candidate, personally or through his instructions, must have given money or other material
consideration; and (b) the act of giving money or other material consideration must be for the
purpose of influencing, inducing, or corrupting the voters or public officials performing electoral
functions.
In the case at bar, the petition for disqualification alleged that (a) petitioner ordered the
extraction, hauling and distribution of gravel and sand, and (b) his purpose was to induce and
influence the voters of Kananga and Matag-ob, Leyte to vote for him. Pertinent portion of the
petition reads:
"[T]he respondent [herein petitioner], within the election period, took advantage of his current
elective position as City Mayor of Ormoc City by illegally and unlawfully using during the
prohibited period, public equipments and vehicles belonging to and owned by the City
Government of Ormoc City in extracting, hauling and distributing gravel and sand to the
residents and voters of the Municipalities of Kananga and Matag-ob Leyte, well within the
territorial limits of the 4th Congressional District of Leyte, which acts were executed without
period, and clearly for the illicit purpose of unduly inducing or directly corrupting various voters
of Kananga and Matag-ob, within the 4th legislative district of Leyte, for the precise purpose of
inducing and influencing the voters/beneficiaries of Kananga and Matag-ob, Leyte to cast their
votes for said respondent."83
The affidavits relied upon by the COMELEC Second Division failed to prove these allegations.
For instance, Cesar A. Laurente merely stated that he saw three (3) ten-wheeler dump trucks
and a Hyundai Payloader with the markings "Ormoc City Government" extracting and hauling
sand and gravel from the riverbed adjacent to the property owned by the Codilla family.84
Agripino C. Alferez and Rogelio T. Sulvera in their Joint Affidavit merely stated that they saw
white trucks owned by the City Government of Ormoc dumping gravel and sand on the road of
Purok 6, San Vicente, Matag-ob, Leyte. A payloader then scattered the sand and gravel
unloaded by the white trucks.85
On the other hand, Danilo D. Maglasang, a temporary employee of the City Government of
Ormoc assigned to check and record the delivery of sand and gravel for the different barangays
in Ormoc, stated as follows:
"3. That on April 20, 2001, I was ordered by Engr. Arnel Padayo, an employee of the City
Engineering Office, Ormoc City to go to Tagaytay, Kangga (sic), Leyte as that will be the source
of the sand and gravel. I inquired why we had to go to Kananga but Engr. Padayao said that it's
not a problem as it was Mayor Eufrocino M. Codilla, Sr. who ordered this and the property is
owned by the family of Mayor Codilla. We were to deliver sand and gravel to whoever requests
from Mayor Codilla."86
Similarly, the Affidavit of Basilio Bates cannot prove the offense charged against the petitioner.
He alleged that on April 18, 2001, a white truck with the marking "City Government of Ormoc"
came to his lot at Montebello, Kananga, Leyte and unloaded mixed sand and that the driver of
the truck told him to "vote for Codilla as a (sic) congressman during election."87 His statement is
hearsay. He has no personal knowledge of the supposed order of the petitioner to distribute
gravel and sand for the purpose of inducing the voters to vote for him. The same could be said
about the affidavits of Randy T. Merin,88 Alfredo C. De la Peña,89 Miguel P. Pandac,90 Paquito
Bregeldo, Cristeta Alferez , Glicerio Rios,91 Romulo Alkuino, Sr.,92 Abner Casas,93 Rita
Trangia,94 and Judith Erispe95 attached to respondent Locsin's Memorandum on the Motion to
Lift the Suspension of Proclamation.
Also valueless are the affidavits of other witnesses96 of respondent Locsin, all similarly worded,
which alleged that the petitioner ordered the repair of the road in Purok 6, Barangay San Vicente,
Matag-ob, Leyte and the flattening of the area where the cockfights were to be held. These
allegations are extraneous to the charge in the petition for disqualification. More importantly,
these allegations do not constitute a ground to disqualify the petitioner based on section 68 of
the Omnibus Election Code.
To be sure, the petition for disqualification also ascribed other election offenses against the
petitioner, particularly section 261 of the Omnibus Election Code, viz:
"Section 261. Prohibited Acts.- The following shall be guilty of an election offense:
(a) Vote-buying and vote-selling.- (1) Any person who gives, offers or promises money
or anything of value, gives or promises any office or employment, franchise or grant,
public or private, or make or offers to make an expenditure, directly or indirectly, or cause
an expenditure to be made to any person, association, corporation, entity or community
in order to induce anyone or the public in general, to vote for or against any candidate
or withhold his vote in the election, or to vote for or against any aspirant for the
nomination or choice of a candidate in a convention or similar selection process of a
political party.
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(o) Use of public funds, money deposited in trust, equipment, facilities owned or
controlled by the government for an election campaign.- Any person who uses under
any guise whatsoever directly or indirectly, xxx (3) any equipment, vehicle, facility,
apparatus, or paraphernalia owned by the government or by its political subdivisions,
agencies including government-owned or controlled corporations, or by the Armed
Forces of the Philippines for any election campaign or for any partisan political activity x
x x."
However, the jurisdiction of the COMELEC to disqualify candidates is limited to those
enumerated in section 68 of the Omnibus Election Code. All other election offenses are
beyond the ambit of COMELEC jurisdiction.97 They are criminal and not administrative
in nature. Pursuant to sections 265 and 268 of the Omnibus Election Code, the power
of the COMELEC is confined to the conduct of preliminary investigation on the alleged
 election offenses for the purpose of prosecuting the alleged offenders before the regular
courts of justice, viz:
"Section 265. Prosecution.- The Commission shall, through its duly authorized legal
officers, have the exclusive power to conduct preliminary investigation of all election
offenses punishable under this Code, and to prosecute the same. The Commission may
avail of the assistance of other prosecuting arms of the government: Provided, however,
That in the event that the Commission fails to act on any complaint within four months
from his filing, the complainant may file the complaint with the office of the fiscal or with
the Ministry of Justice for proper investigation and prosecution, if warranted.
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Section 268. Jurisdiction.- The regional trial court shall have the exclusive original jurisdiction
to try and decide any criminal action or proceeding for violation of this Code, except those
relating to the offense of failure to register or failure to vote which shall be under the jurisdictions
of metropolitan or municipal trial courts. From the decision of the courts, appeal will lie as in
other criminal cases."
The COMELEC Second Division grievously erred when it decided the disqualification case
based on section 261 (a) and (o), and not on section 68 of the Omnibus Election Code.
(d) Exclusion of the votes in favor of the petitioner and the proclamation of respondent
Locsin was done with undue haste.
The COMELEC Second Division ordered the exclusion of the votes cast in favor of the petitioner,
and the proclamation of the respondent Locsin, without affording the petitioner the opportunity
to challenge the same. In the morning of June 15, 2001, the Provincial Board of Canvassers
convened, and on the strength of the said Resolution excluding the votes received by the
petitioner, certified that respondent Locsin received the highest number of votes. On this basis,
respondent Locsin was proclaimed.
Records reveal that the petitioner received notice of the Resolution of the COMELEC Second
Division only through his counsel via a facsimile message in the afternoon of June 15,
200198 when everything was already fait accompli. Undoubtedly, he was not able to contest the
issuance of the Certificate of Canvass and the proclamation of respondent Locsin. This is plain
and simple denial of due process.
The essence of due process is the opportunity to be heard. When a party is deprived of that
basic fairness, any decision by any tribunal in prejudice of his rights is void.
Second. The votes cast in favor of the petitioner cannot be considered "stray" and
respondent cannot be validly proclaimed on that basis.
The Resolution of the COMELEC Second Division in SPA No. 01-208 contains two dispositions:
(1) it ruled that the petitioner was disqualified as a candidate for the position of Congressman of
the Fourth District of Leyte; and (2) it ordered the immediate proclamation of the candidate who
garnered the highest number of votes, to the exclusion of the respondent [herein petitioner].
As previously stated, the disqualification of the petitioner is null and void for being violative of
due process and for want of substantial factual basis. Even assuming, however, that the
petitioner was validly disqualified, it is still improper for the COMELEC Second Division to order
the immediate exclusion of votes cast for the petitioner as stray, and on this basis, proclaim the
respondent as having garnered the next highest number of votes.
(a) The order of disqualification is not yet final, hence, the votes cast in favor of the
petitioner cannot be considered "stray."
Section 6 of R.A. No. 6646 and section 72 of the Omnibus Election Code require a final
judgment before the election for the votes of a disqualified candidate to be considered "stray."
Hence, when a candidate has not yet been disqualified by final judgment during the election
day and was voted for, the votes cast in his favor cannot be declared stray. To do so would
amount to disenfranchising the electorate in whom sovereignty resides.99 For in voting for a
candidate who has not been disqualified by final judgment during the election day, the people
voted for him bona fide, without any intention to misapply their franchise, and in the honest belief
that the candidate was then qualified to be the person to whom they would entrust the exercise
of the powers of government.100
This principle applies with greater force in the case at bar considering that the petitioner has
not been declared by final judgment to be disqualified not only before but even after the
elections. The Resolution of the COMELEC Second Division disqualifying the petitioner did not
attain finality, and hence, could not be executed, because of the timely filing of a Motion for
Reconsideration. Section 13, Rule 18 of the COMELEC Rules of Procedure on Finality of
Decisions and Resolutions reads:
"Sec. 13. Finality of Decisions or Resolutions.- (a) In ordinary actions, special proceedings,
provisional remedies and special reliefs, a decision or resolution of the Commission en banc
shall become final and executory after thirty (30) days from its promulgation.
(b) In Special Actions and Special Cases a decision or resolution of the Commission en banc
shall become final and executory after five (5) days in Special Actions and Special Cases and
after fifteen (15) days in all other proceedings, following their promulgation.
(c) Unless a motion for reconsideration is seasonably filed, a decision or resolution of a
Division shall become final and executory after the lapse of five (5) days in Special
Actions and Special Cases and after fifteen (15) days in all other actions or proceedings,
following its promulgation." (emphasis supplied)
In this wise, COMELEC Resolution No. 4116,101 issued in relation to the finality of resolutions or
decisions in disqualification cases, provides:
"This pertains to the finality of decisions or resolutions of the Commission en banc or division,
particularly on Special Actions (Disqualification Cases).
Special Action cases refer to the following:
(a) Petition to deny due course to a certificate of candidacy;
(b) Petition to declare a candidate as a nuisance candidate;
(c) Petition to disqualify a candidate; and
(d) Petition to postpone or suspend an election.
Considering the foregoing and in order to guide field officials on the finality of decisions or
resolutions on special action cases (disqualification cases) the Commission, RESOLVES, as it
is hereby RESOLVED, as follows:
(1) the decision or resolution of the En Banc of the Commission on disqualification cases
shall become final and executory after five (5) days from its promulgation unless
restrained by the Supreme Court;
(2) the decision or resolution of a Division on disqualification cases shall become final
and executory after the lapse of five (5) days unless a motion for reconsideration is
seasonably filed;
(3) where the ground for disqualification case is by reason of non-residence, citizenship,
violation of election laws and other analogous cases and on the day of the election the
resolution has not become final and executory the BEI shall tally and count the votes for
such disqualified candidate;
(4) the decision or resolution of the En Banc on nuisance candidates, particularly
whether the nuisance candidate has the same name as the bona fide candidate shall be
immediately executory;
(5) the decision or resolution of a DIVISION on nuisance candidate, particularly where
the nuisance candidate has the same name as the bona fide candidate shall be
immediately executory after the lapse of five (5) days unless a motion for reconsideration
is seasonably filed. In which case, the votes cast shall not be considered stray but shall
be counted and tallied for the bona fide candidate.
All resolutions, orders and rules inconsistent herewith are hereby modified or repealed."
Considering the timely filing of a Motion for Reconsideration, the COMELEC Second Division
gravely abused its discretion in ordering the immediate disqualification of the petitioner and
ordering the exclusion of the votes cast in his favor. Section 2, Rule 19 of the COMELEC Rules
of Procedure is very clear that a timely Motion for Reconsideration shall suspend the execution
or implementation of the resolution, viz:
Section 2. Period for filing Motion for Reconsideration.- A motion to reconsider a decision,
resolution, order, or ruling of a Division shall be filed within five (5) days from the promulgation
thereof. Such motion, if not pro forma, suspends the execution or implementation of the
decision, resolution, order or ruling." (emphases supplied)
(b) Respondent Locsin, as a mere second placer, cannot be proclaimed.
More brazen is the proclamation of respondent Locsin which violates the settled doctrine that
the candidate who obtains the second highest number of votes may not be proclaimed winner
in case the winning candidate is disqualified.102 In every election, the people's choice is the
paramount consideration and their expressed will must at all times be given effect. When the
majority speaks and elects into office a candidate by giving him the highest number of votes
cast in the election for the office, no one can be declared elected in his place.103 In Domino v.
COMELEC,104 this Court ruled, viz:
"It would be extremely repugnant to the basic concept of the constitutionally guaranteed right to
suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed
winner and imposed as representative of a constituency, the majority of which have positively
declared through their ballots that they do not choose him. To simplistically assume that the
second placer would have received that (sic) other votes would be to substitute our judgment We find no merit in these contentions.
for the mind of the voters. He could not be considered the first among the qualified candidates
because in a field which excludes the qualified candidate, the conditions would have First. The validity of the respondent's proclamation was a core issue in the Motion for
substantially changed. Reconsideration seasonably filed by the petitioner.

xxxxxxxxx In his timely Motion for Reconsideration with the COMELEC en banc, petitioner argued that the
COMELEC Second Division erred thus:
The effect of a decision declaring a person ineligible to hold an office is only that the election
fails entirely, that the wreath of victory cannot be transferred from the disqualified winner to the "(1) in disqualifying petitioner on the basis solely of the dubious declaration of the
repudiated loser because the law then as now only authorizes a declaration in favor of the witnesses for respondent Locsin;
person who has obtained a plurality of votes, and does not entitle the candidate receiving the
next highest number of votes to be declared elected. In such case, the electors have failed to (2) in adopting in toto the allegations of the witnesses for respondent Locsin; and
make a choice and the election is a nullity. To allow the defeated and repudiated candidate to
take over the elective position despite his rejection by the electorate is to disenfranchise the
(3) in promulgating the resolution in violation of its own rules of procedure and in
electorate without any fault on their part and to undermine the importance and meaning of
directing therein the immediate proclamation of the second highest 'vote
democracy and the people's right to elect officials of their choice."105
getter.'" (emphases supplied)
Respondent Locsin proffers a distinction between a disqualification based on personal
In support of his third assignment of error, petitioner argued that "the Second Division's directive
circumstances such as age, residence or citizenship and disqualification based on election
for the immediate proclamation of the second highest vote-getter is premature considering that
offenses. She contends that the election of candidates later disqualified based on election
the Resolution has yet to become final and executory."108 Clearly, the validity of respondent
offenses like those enumerated in section 68 of the Omnibus Election Code should be
Locsin's proclamation was made a central issue in the Motion for Reconsideration seasonably
invalidated because they violate the very essence of suffrage and as such, the votes cast in his
filed by the petitioner. Without doubt, the COMELEC en banc has the jurisdiction to rule on the
favor should not be considered.106
issue.
This contention is without merit. In the recent case of Trinidad v. COMELEC,107 this Court ruled
The fact that the Petition for Nullity of Proclamation was filed directly with the COMELEC en
that the effect of a judgment disqualifying a candidate, after winning the election, based on
banc is of no moment. Even without said Petition, the COMELEC en banc could still rule on the
personal circumstances or section 68 of the Omnibus Election Code is the same: the second
nullity of respondent's proclamation because it was properly raised in the Motion for
placer could not take the place of the disqualified winner.
Reconsideration.
II
Section 3, Article IX-C of the 1987 Constitution empowers the COMELEC en banc to review, on
motion for reconsideration, decisions or resolutions decided by a division, viz:
Whether the proclamation of respondent Locsin divested the COMELEC en banc of jurisdiction
to review its validity.
"Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate
its rules of procedure in order to expedite disposition of election cases, including pre-
Respondent Locsin submits that the COMELEC en banc has no jurisdiction to annul her proclamation controversies. All such election cases shall be heard and decided in division,
proclamation. She maintains that the COMELEC en banc was been divested of jurisdiction to provided that motions for reconsideration of decision shall be decided by the Commission en
review the validity of her proclamation because she has become a member of the House of banc."
Representatives. Thus, she contends that the proper forum to question her membership to the
House of Representatives is the House of Representative Electoral Tribunal (HRET).
Pursuant to this Constitutional mandate, the COMELEC Rules of Procedure provides:
"Rule 19. Motions for Reconsideration.-
Section 1. Grounds for Motion for Reconsideration.- A motion for reconsideration may
be filed on the grounds that the evidence is insufficient to justify the decision, order or
ruling, or that the said decision, order or ruling is contrary to law.
Section 2. Period for filing Motion for Reconsideration.- A motion to reconsider a
decision, resolution, order, or ruling of a Division shall be filed within five (5) days from
the promulgation thereof. Such motion, if not pro forma, suspends the execution or
implementation of the decision, resolution, order or ruling."
Section 3. Form and Contents of Motion for Reconsideration.- The motion shall be
verified and shall point out specifically the findings or conclusions of the decision,
resolution, order or ruling which are not supported by the evidence or which are contrary
to law, making express reference to the testimonial or documentary evidence or to the
provisions of law alleged to be contrary to such findings or resolutions.
Section 4. Effect of Motion for Reconsideration on Period to Appeal.- A motion to
reconsider a decision, resolution, order or ruling when not pro forma, suspends the
running of the period to elevate the matter to the Supreme Court.
Section 5. How Motion for Reconsideration Disposed Of.- Upon the filing of a motion to
reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court
concerned shall, within twenty-four (24) hours from the filing thereof, notify the Presiding
Commissioner. The latter shall within two (2) days thereafter certify the case to the
Commission en banc.
Section 6. Duty of the Clerk of Court of the Commission to set Motion for Hearing.- The
Clerk of Court concerned shall calendar the motion for reconsideration for the resolution
of the Commission en banc within ten (10) days from the certification thereof."
(emphases supplied)
Since the petitioner seasonably filed a Motion for Reconsideration of the Order of the Second
Division suspending his proclamation and disqualifying him, the COMELEC en banc was not
divested of its jurisdiction to review the validity of the said Order of the Second Division. The
said Order of the Second Division was yet unenforceable as it has not attained finality; the timely
filing of the motion for reconsideration suspends its execution. It cannot, thus, be used as the
basis for the assumption in office of the respondent as the duly elected Representative of the
4th legislative district of Leyte.
Second. It is the House of Representatives Electoral Tribunal (HRET) which has no
jurisdiction in the instant case.
Respondent contends that having been proclaimed and having taken oath as representative of
the 4th legislative district of Leyte, any question relative to her election and eligibility should be
brought before the HRET pursuant to section 17 of Article VI of the 1987 Constitution.109
We reject respondent's contention.
(a) The issue on the validity of the Resolution of the COMELEC Second Division has not
yet been resolved by the COMELEC en banc.
To stress again, at the time of the proclamation of respondent Locsin, the validity of the
Resolution of the COMELEC Second Division was seasonably challenged by the petitioner in
his Motion for Reconsideration. The issue was still within the exclusive jurisdiction of the
COMELEC en banc to resolve. Hence, the HRET cannot assume jurisdiction over the matter.
In Puzon vs. Cua,110 even the HRET ruled that the "doctrinal ruling that once a proclamation
has been made and a candidate-elect has assumed office, it is this Tribunal that has jurisdiction
over an election contest involving members of the House of Representatives, could not have
been immediately applicable due to the issue regarding the validity of the very COMELEC
pronouncements themselves." This is because the HRET has no jurisdiction to review
resolutions or decisions of the COMELEC, whether issued by a division or en banc.
(b) The instant case does not involve the election and qualification of respondent Locsin.
Respondent Locsin maintains that the proper recourse of the petitioner is to file a petition for quo
warranto with the HRET.
A petition for quo warranto may be filed only on the grounds of ineligibility and disloyalty to the
Republic of the Philippines.111 In the case at bar, neither the eligibility of the respondent Locsin
nor her loyalty to the Republic of the Philippines is in question. There is no issue that she was
qualified to run, and if she won, to assume office.
A petition for quo warranto in the HRET is directed against one who has been duly elected and
proclaimed for having obtained the highest number of votes but whose eligibility is in question
at the time of such proclamation. It is evident that respondent Locsin cannot be the subject of
quo warranto proceeding in the HRET. She lost the elections to the petitioner by a wide margin.
Her proclamation was a patent nullity. Her premature assumption to office as Representative of
the 4th legislative district of Leyte was void from the beginning. It is the height of absurdity for
the respondent, as a loser, to tell petitioner Codilla, Sr., the winner, to unseat her via a quo In sum, the issue of who is the rightful Representative of the 4th legislative district of Leyte has
warranto proceeding. been finally settled by the COMELEC en banc, the constitutional body with jurisdiction on the
matter. The rule of law demands that its Decision be obeyed by all officials of the land.
III There is no alternative to the rule of law except the reign of chaos and confusion.

Whether it is the ministerial duty of the public respondents to IN VIEW WHEREOF, the Petition for Mandamus is granted. Public Speaker of the House of
Representatives shall administer the oath of petitioner EUFROCINO M. CODILLA, SR., as the
recognize petitioner Codilla, Sr. as the legally elected Representative duly-elected Representative of the 4th legislative district of Leyte. Public respondent Secretary-
General shall likewise register the name of the petitioner in the Roll of Members of the House of
Representatives after he has taken his oath of office. This decision shall be immediately
of the 4th legislative district of Leyte vice respondent Locsin.
executory.
Under Rule 65, section 3 of the 1997 Rules of Civil Procedure, any person may file a verified
SO ORDERED.
petition for mandamus "when any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or
office to which such other is entitled, and there is no other plain, speedy and adequate remedy
in the ordinary course of law."112 For a petition for mandamus to prosper, it must be shown that
the subject of the petition for mandamus is a ministerial act or duty, and not purely
discretionary on the part of the board, officer or person, and that the petitioner has a well-
defined, clear and certain right to warrant the grant thereof.

The distinction between a ministerial and discretionary act is well delineated. A purely ministerial
act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed
manner, in obedience to the mandate of a legal authority, without regard to or the exercise of
his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty
upon a public officer and gives him the right to decide how or when the duty shall be performed,
such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of
the same requires neither the exercise of official discretion or judgment.113

In the case at bar, the administration of oath and the registration of the petitioner in the Roll of
Members of the House of Representatives representing the 4th legislative district of Leyte is no
longer a matter of discretion on the part of the public respondents. The facts are settled and
beyond dispute: petitioner garnered 71,350 votes as against respondent Locsin who only got
53, 447 votes in the May 14, 2001 elections. The COMELEC Second Division initially ordered
the proclamation of respondent Locsin; on Motion for Reconsideration the COMELEC en banc
set aside the order of its Second Division and ordered the proclamation of the petitioner. The
Decision of the COMELEC en banc has not been challenged before this Court by respondent
Locsin and said Decision has become final and executory.
G.R. No. 196804 October 9, 2012 4. Ordering respondent Barbara Ruby Talaga to cease and desist from discharging the
functions of the Office of the Mayor;
MAYOR BARBARA RUBY C. TALAGA, Petitioner,
vs. 5. In view of the permanent vacancy in the Office of the Mayor of Lucena City, the
COMMISSION ON ELECTIONS and RODERICK A. ALCALA, Respondents. proclaimed Vice-Mayor is ORDERED to succeed as Mayor as provided under Section
44 of the Local Government Code;
x-----------------------x
6. DIRECTING the Clerk of Court of the Commission to furnish copies of this Resolution
G.R. No. 197015 to the Office of the President of the Philippines, the Department of Interior and Local
Government, the Department of Finance and the Secretary of the Sangguniang
PHILIP M. CASTILLO, Petitioner, Panglunsod of Lucena City.
vs.
COMMISSION ON ELECTIONS, BARBARA RUBY TALAGA and RODERICK A. Let the Department of Interior and Local Government and the Regional Election Director of
ALCALA, Respondents. Region IV of COMELEC implement this resolution.

DECISION SO ORDERED.1

BERSAMIN, J.: Antecedents

In focus in these consolidated special civil actions are the disqualification of a substitute who On November 26, 2009 and December 1, 2009, Ramon Talaga (Ramon) and Philip M. Castillo
was proclaimed the winner of a mayoralty election; and the ascertainment of who should assume (Castillo) respectively filed their certificates of candidacy (CoCs) for the position of Mayor of
the office following the substitute’s disqualification. Lucena City to be contested in the scheduled May 10, 2010 national and local elections.2

The consolidated petitions for certiorari seek to annul and set aside the En Banc Resolution
issued on May 20, 2011 in SPC No. 10-024 by the Commission on Elections (COMELEC), the
dispositive portion of which states:
WHEREFORE, judgment is hereby rendered:
1. REVERSING and SETTING ASIDE the January 11, 2011 Resolution of the Second
Division;
2. GRANTING the petition in intervention of Roderick A. Alcala;
3. ANNULLING the election and proclamation of respondent Barbara C. Talaga as
mayor of Lucena City and CANCELLING the Certificate of Canvass and Proclamation
issued therefor;
Ramon, the official candidate of the Lakas-Kampi-CMD,3 declared in his CoC that he was eligible
for the office he was seeking to be elected to.
Four days later, or on December 5, 2009, Castillo filed with the COMELEC a petition
denominated as In the Matter of the Petition to Deny Due Course to or Cancel Certificate of
Candidacy of Ramon Y. Talaga, Jr. as Mayor for Having Already Served Three (3) Consecutive
Terms as a City Mayor of Lucena, which was docketed as SPA 09-029 (DC).4 He alleged
therein that Ramon, despite knowing that he had been elected and had served three consecutive
terms as Mayor of Lucena City, still filed his CoC for Mayor of Lucena City in the May 10, 2010
national and local elections.
The pertinent portions of Castillo’s petition follow:
1. Petitioner is of legal age, Filipino, married, and a resident of Barangay Mayao
Crossing, Lucena City but may be served with summons and other processes of this
Commission at the address of his counsel at 624 Aurora Blvd., Lucena City 4301;
 2. Respondent Ramon Y. Talaga, Jr. is likewise of legal age, married, and a resident of
Barangay Ibabang Iyam, Lucena City and with postal address at the Office of the City
Mayor, City Hall, Lucena City, where he may be served with summons and other
processes of this Commission;
3. Petitioner, the incumbent city vice-mayor of Lucena having been elected during the
2007 local elections, is running for city mayor of Lucena under the Liberal party this
coming 10 May 2010 local elections and has filed his certificate of candidacy for city
mayor of Lucena;
4. Respondent was successively elected mayor of Lucena City in 2001, 2004, and 2007
local elections based on the records of the Commission on Elections of Lucena City and
had fully served the aforesaid three (3) terms without any voluntary and involuntary
interruption;
5. Except the preventive suspension imposed upon him from 13 October 2005 to 14
November 2005 and from 4 September 2009 to 30 October 2009 pursuant to
Sandiganbayan 4th Division Resolution in Criminal Case No. 27738 dated 3 October
2005, the public service as city mayor of the respondent is continuous and uninterrupted
under the existing laws and jurisprudence;
6. There is no law nor jurisprudence to justify the filing of the certificate of candidacy of
the respondent, hence, such act is outrightly unconstitutional, illegal, and highly immoral;
7. Respondent, knowing well that he was elected for and had fully served three (3)
consecutive terms as a city mayor of Lucena, he still filed his Certificate of Candidacy
for City Mayor of Lucena for this coming 10 May 2010 national and local elections;
8. Under the Constitution and existing Election Laws, New Local Government Code of
the Philippines, and jurisprudence the respondent is no longer entitled and is already
disqualified to be a city mayor for the fourth consecutive term;
9. The filing of the respondent for the position of city mayor is highly improper, unlawful
and is potentially injurious and prejudicial to taxpayers of the City of Lucena; and
10. It is most respectfully prayed by the petitioner that the respondent be declared
disqualified and no longer entitled to run in public office as city mayor of Lucena City
based on the existing law and jurisprudence.5
The petition prayed for the following reliefs, to wit:
WHEREFORE, premises considered, it is respectfully prayed that the Certificate of Candidacy
filed by the respondent be denied due course to or cancel the same and that he be declared as
a disqualified candidate under the existing Election Laws and by the provisions of the New Local
Government Code.6 (Emphasis supplied.)
Ramon countered that that the Sandiganbayan had preventively suspended him from office
during his second and third terms; and that the three-term limit rule did not then apply to him
pursuant to the prevailing jurisprudence7 to the effect that an involuntary separation from office
amounted to an interruption of continuity of service for purposes of the application of the three-
term limit rule.
In the meantime, on December 23, 2009, the Court promulgated the ruling in Aldovino, Jr. v.
Commission on Elections,8 holding that preventive suspension, being a mere temporary
incapacity, was not a valid ground for avoiding the effect of the three-term limit rule. Thus, on
December 30, 2009, Ramon filed in the COMELEC a Manifestation with Motion to Resolve,
taking into account the intervening ruling in Aldovino. Relevant portions of his Manifestation with
Motion to Resolve are quoted herein, viz:
4. When respondent filed his certificate of candidacy for the position of Mayor of Lucena City,
the rule that ‘where the separation from office is caused by reasons beyond the control of the
officer – i.e. involuntary – the service of term is deemed interrupted’ has not yet been overturned
by the new ruling of the Supreme Court. As a matter of fact, the prevailing rule then of the
Honorable Commission in [sic] respect of the three (3)-term limitation was its decision in the
case of Aldovino, et al. vs. Asilo where it stated:
"Thus, even if respondent was elected during the 2004 elections, which was supposedly his third
and final term as city councilor, the same cannot be treated as a complete service or full term in
office since the same was interrupted when he was suspended by the Sandiganbayan Fourth
Division. And the respondent actually heeded the suspension order since he did not receive his
salary during the period October 16-31 and November 1-15 by reason of his actual suspension
from office. And this was further bolstered by the fact that the DILG issued a
Memorandum directing him, among others, to reassume his position." (Emphasis supplied.)
5. Clearly, there was no misrepresentation on the part of respondent as would constitute a
ground for the denial of due course to and/or the cancellation of respondent’s certificate of
candidacy at the time he filed the same. Petitioner’s ground for the denial of due course to and/or
the cancellation of respondent’s certificate of candidacy thus has no basis, in fact and in law, as
there is no ground to warrant such relief under the Omnibus Election Code and/or its
implementing laws.
6. Pursuant, however, to the new ruling of the Supreme Court in respect of the issue on the
three (3)-term limitation, respondent acknowledges that he is now DISQUALIFIED to run for the
position of Mayor of Lucena City having served three (3) (albeit interrupted) terms as Mayor of
Lucena City prior to the filing of his certificate of candidacy for the 2010 elections.
7. In view of the foregoing premises and new jurisprudence on the matter, respondent
respectfully submits the present case for decision declaring him as DISQUALIFIED to run for
the position of Mayor of Lucena City.9
Notwithstanding his express recognition of his disqualification to run as Mayor of Lucena City in
the May 10, 2010 national and local elections, Ramon did not withdraw his CoC.
Acting on Ramon’s Manifestation with Motion to Resolve, the COMELEC First Division issued a
Resolution on April 19, 2010,10 disposing as follows:
WHEREFORE, premises considered, the instant Petition is hereby GRANTED. Accordingly,
Ramon Y. Talaga, Jr. is hereby declared DISQUALIFIED to run for Mayor of Lucena City for the
10 May 2010 National and Local Elections.
SO ORDERED.
Initially, Ramon filed his Verified Motion for Reconsideration against the April 19, 2010
Resolution of the COMELEC First Division.11 Later on, however, he filed at 9:00 a.m. of May 4,
2010 an Ex-parte Manifestation of Withdrawal of the Pending Motion for Reconsideration.12 At
4:30 p.m. on the same date, Barbara Ruby filed her own CoC for Mayor of Lucena City in
substitution of Ramon, attaching thereto the Certificate of Nomination and Acceptance (CONA)
issued by Lakas-Kampi-CMD, the party that had nominated Ramon.13
On May 5, 2010, the COMELEC En Banc, acting on Ramon’s Ex parte Manifestation of
Withdrawal, declared the COMELEC First Division’s Resolution dated April 19, 2010 final and
executory.14
On election day on May 10, 2010, the name of Ramon remained printed on the ballots but the
votes cast in his favor were counted in favor of Barbara Ruby as his substitute candidate,
resulting in Barbara Ruby being ultimately credited with 44,099 votes as against Castillo’s
39,615 votes.15
Castillo promptly filed a petition in the City Board of Canvassers (CBOC) seeking the suspension
of Barbara Ruby’s proclamation.16
It was only on May 13, 2010 when the COMELEC En Banc, upon the recommendation of its
Law Department,17 gave due course to Barbara Ruby’s CoC and CONA through Resolution No.
8917, thereby including her in the certified list of candidates.18 Consequently, the CBOC
proclaimed Barbara Ruby as the newly-elected Mayor of Lucena City.19
On May 20, 2010, Castillo filed a Petition for Annulment of Proclamation with the
COMELEC,20 docketed as SPC 10-024. He alleged that Barbara Ruby could not substitute
Ramon because his CoC had been cancelled and denied due course; and Barbara Ruby could
not be considered a candidate because the COMELEC En Banc had approved her substitution
three days after the elections; hence, the votes cast for Ramon should be considered stray.
In her Comment on the Petition for Annulment of Proclamation,21 Barbara Ruby maintained the
validity of her substitution. She countered that the COMELEC En Banc did not deny due course
to or cancel Ramon’s COC, despite a declaration of his disqualification, because there was no
finding that he had committed misrepresentation, the ground for the denial of due course to or
cancellation of his COC. She prayed that with her valid substitution, Section 12 of Republic Act
No. 900622 applied, based on which the votes cast for Ramon were properly counted in her favor.
On July 26, 2010, Roderick Alcala (Alcala), the duly-elected Vice Mayor of Lucena City, sought
to intervene,23 positing that he should assume the post of Mayor because Barbara Ruby’s
substitution had been invalid and Castillo had clearly lost the elections.
On January 11, 2011, the COMELEC Second Division dismissed Castillo’s petition and Alcala’s
petition-in-intervention,24 holding:
In the present case, Castillo was notified of Resolution 8917 on May 13, 2010 as it was the basis
for the proclamation of Ruby on that date. He, however, failed to file any action within the
prescribed period either in the Commission or the Supreme Court assailing the said resolution.
Thus, the said resolution has become final and executory. It cannot anymore be altered or
reversed.
xxxx
x x x. A close perusal of the petition filed by Castillo in SPA 10-029 (Dc) shows that it was
actually for the disqualification of Ramon for having served three consecutive terms, which is a
ground for his disqualification under the Constitution in relation to Section 4(b)3 of Resolution
8696. There was no mention therein that Ramon has committed material representation that
would be a ground for the cancellation or denial of due course to the CoC of Ramon under
Section 78 of the Omnibus Election Code. The First Division, in fact, treated the petition as one
for disqualification as gleaned from the body of the resolution and its dispositive portion quoted
above. This treatment of the First Division of the petition as one for disqualification only is
affirmed by the fact that its members signed Resolution No. 8917 where it was clearly stated
that the First Division only disqualified Ramon.
Having been disqualified only, the doctrine laid down in Miranda v. Abaya is not applicable.
Ramon was rightly substituted by Ruby. As such, the votes for Ramon cannot be considered as
stray votes but should be counted in favor of Ruby since the substituted and the substitute carry
the same surname – Talaga, as provided in Section 12 of Republic Act No. 9006.
xxxx
Moreover, there is no provision in the Omnibus Election Code or any election laws for that matter
which requires that the substitution and the Certificate of Candidacy of the substitute should be
approved and given due course first by the Commission or the Law Department before it can be
considered as effective. All that Section 77 of the Omnibus Election Code as implemented by
Section 13 of Resolution No. 8678 requires is that it should be filed with the proper office. The
respondent is correct when she argued that in fact even the BEI can receive a CoC of a
substitute candidate in case the cause for the substitution happened between the day before
the election and mid-day of election day. Thus, even if the approval of the substitution was made
after the election, the substitution became effective on the date of the filing of the CoC with the
Certificate of Nomination and Acceptance.
There being no irregularity in the substitution by Ruby of Ramon as candidate for mayor of
Lucena City, the counting of the votes of Ramon in favor of Ruby is proper. The proclamation,
thus, of Ruby as mayor elect of Lucena City is in order. Hence, we find no cogent reason to
annul the proclamation of respondent Barbara Ruby C. Talaga as the duly elected Mayor of the
City of Lucena after the elections conducted on May 10, 2010.25
Acting on Castillo and Alcala’s respective motions for reconsideration, the COMELEC En Banc
issued the assailed Resolution dated May 20, 2011 reversing the COMELEC Second Division’s
ruling.26
Pointing out that: (a) Resolution No. 8917 did not attain finality for being issued without a hearing
as a mere incident of the COMELEC’s ministerial duty to receive the COCs of substitute
candidates; (b) Resolution No. 8917 was based on the wrong facts; and (c) Ramon’s
disqualification was resolved with finality only on May 5, 2010, the COMELEC En Banc
concluded that Barbara Ruby could not have properly substituted Ramon but had simply
become an additional candidate who had filed her COC out of time; and held that Vice Mayor
Alcala should succeed to the position pursuant to Section 44 of the Local Government Code
(LGC).27
Issues
The core issue involves the validity of the substitution by Barbara Ruby as candidate for the
position of Mayor of Lucena City in lieu of Ramon, her husband.
Ancillary to the core issue is the determination of who among the contending parties should
assume the contested elective position.
Ruling
The petitions lack merit.
1.
Existence of a valid CoC is a condition
sine qua non for a valid substitution
The filing of a CoC within the period provided by law is a mandatory requirement for any person
to be considered a candidate in a national or local election. This is clear from Section 73 of the
Omnibus Election Code, to wit:
Section 73. Certificate of candidacy — No person shall be eligible for any elective public office
unless he files a sworn certificate of candidacy within the period fixed herein.
Section 74 of the Omnibus Election Code specifies the contents of a COC, viz:
Section 74. Contents of certificate of candidacy.—The certificate of candidacy shall state that
the person filing it is announcing his candidacy for the office stated therein and that he is eligible
for said office; if for Member of the Batasang Pambansa, the province, including its component
cities, highly urbanized city or district or sector which he seeks to represent; the political party
to which he belongs; civil status; his date of birth; residence; his post office address for all
election purposes; his profession or occupation; that he will support and defend the Constitution
of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws,
legal orders, and decrees promulgated by the duly constituted authorities; that he is not a
permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is
assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated
in the certificate of candidacy are true to the best of his knowledge. x x x
The evident purposes of the requirement for the filing of CoCs and in fixing the time limit for filing
them are, namely: (a) to enable the voters to know, at least 60 days prior to the regular election,
the candidates from among whom they are to make the choice; and (b) to avoid confusion and
inconvenience in the tabulation of the votes cast. If the law does not confine to the duly-
registered candidates the choice by the voters, there may be as many persons voted for as there
are voters, and votes may be cast even for unknown or fictitious persons as a mark to identify
the votes in favor of a candidate for another office in the same election.28 Moreover, according to
Sinaca v. Mula,29 the CoC is:
x x x in the nature of a formal manifestation to the whole world of the candidate’s political creed
or lack of political creed. It is a statement of a person seeking to run for a public office certifying
that he announces his candidacy for the office mentioned and that he is eligible for the office,
the name of the political party to which he belongs, if he belongs to any, and his post-office
address for all election purposes being as well stated.
Accordingly, a person’s declaration of his intention to run for public office and his affirmation that
he possesses the eligibility for the position he seeks to assume, followed by the timely filing of
such declaration, constitute a valid CoC that render the person making the declaration a valid
or official candidate.
There are two remedies available to prevent a candidate from running in an electoral race. One
is through a petition for disqualification and the other through a petition to deny due course to or
cancel a certificate of candidacy. The Court differentiated the two remedies in Fermin v.
Commission on Elections,30 thuswise:
x x x A petition for disqualification, on the one hand, can be premised on Section 12 or 68 of the
Omnibus Election Code, or Section 40 of the Local Government Code. On the other hand, a
petition to deny due course to or cancel a CoC can only be grounded on a statement of a material
representation in the said certificate that is false. The petitions also have different effects. While
a person who is disqualified under Section 68 is merely prohibited to continue as a candidate,
the person whose certificate is cancelled or denied due course under Section 78 is not treated
as a candidate at all, as if he/she never filed a CoC.31
Inasmuch as the grounds for disqualification under Section 68 of the Omnibus Election Code
(i.e., prohibited acts of candidates, and the fact of a candidate’s permanent residency in another
country when that fact affects the residency requirement of a candidate) are separate and
distinct from the grounds for the cancellation of or denying due course to a COC (i.e., nuisance
candidates under Section 69 of the Omnibus Election Code; and material misrepresentation
under Section 78 of the Omnibus Election Code), the Court has recognized in Miranda v.
Abaya32 that the following circumstances may result from the granting of the petitions, to wit:
(1) A candidate may not be qualified to run for election but may have filed a valid CoC;
(2) A candidate may not be qualified and at the same time may not have filed a valid
CoC; and
(3) A candidate may be qualified but his CoC may be denied due course or cancelled.
In the event that a candidate is disqualified to run for a public office, or dies, or withdraws his
CoC before the elections, Section 77 of the Omnibus Election Code provides the option of
substitution, to wit:
Section 77. Candidates in case of death, disqualification or withdrawal. — If after the last day
for the filing of certificates of candidacy, an official candidate of a registered or accredited
political party dies, withdraws or is disqualified for any cause, only a person belonging to, and
certified by, the same political party may file a certificate of candidacy to replace the candidate
who died, withdrew or was disqualified. The substitute candidate nominated by the political party
concerned may file his certificate of candidacy for the office affected in accordance with the
preceding sections not later than mid-day of the day of the election. If the death, withdrawal or
disqualification should occur between the day before the election and mid-day of election day,
said certificate may be filed with any board of election inspectors in the political subdivision
where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of
the country, with the Commission.
Nonetheless, whether the ground for substitution is death, withdrawal or disqualification of a
candidate, Section 77 of the Omnibus Election Code unequivocally states that only an official
candidate of a registered or accredited party may be substituted.
Considering that a cancelled CoC does not give rise to a valid candidacy,33 there can be no valid
substitution of the candidate under Section 77 of the Omnibus Election Code. It should be clear,
too, that a candidate who does not file a valid CoC may not be validly substituted, because a
person without a valid CoC is not considered a candidate in much the same way as any person
who has not filed a CoC is not at all a candidate.34
Likewise, a candidate who has not withdrawn his CoC in accordance with Section 73 of the
Omnibus Election Code may not be substituted. A withdrawal of candidacy can only give effect
to a substitution if the substitute candidate submits prior to the election a sworn CoC as required
by Section 73 of the Omnibus Election Code.35
2.
Declaration of Ramon’s disqualification
rendered his CoC invalid; hence, he was not
a valid candidate to be properly substituted
In the light of the foregoing rules on the CoC, the Court concurs with the conclusion of the
COMELEC En Banc that the Castillo petition in SPA 09-029 (DC) was in the nature of a petition
to deny due course to or cancel a CoC under Section 78 of the Omnibus Election Code.
In describing the nature of a Section 78 petition, the Court said in Fermin v. Commission on
Elections:36
Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based
on the lack of qualifications but on a finding that the candidate made a material representation
that is false, which may relate to the qualifications required of the public office he/she is running
for. It is noted that the candidate states in his/her CoC that he/she is eligible for the office he/she
seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional and
statutory provisions on qualifications or eligibility for public office. If the candidate subsequently
states a material representation in the CoC that is false, the COMELEC, following the law, is
empowered to deny due course to or cancel such certificate. Indeed, the Court has already
likened a proceeding under Section 78 to a quo warranto proceeding under Section 253 of the
OEC since they both deal with the eligibility or qualification of a candidate, with the distinction
mainly in the fact that a "Section 78" petition is filed before proclamation, while a petition for quo
warranto is filed after proclamation of the winning candidate.
Castillo’s petition contained essential allegations pertaining to a Section 78 petition, namely: (a)
Ramon made a false representation in his CoC; (b) the false representation referred to a material
matter that would affect the substantive right of Ramon as candidate (that is, the right to run for
the election for which he filed his certificate); and (c) Ramon made the false representation with
the intention to deceive the electorate as to his qualification for public office or deliberately
attempted to mislead, misinform, or hide a fact that would otherwise render him ineligible.37 The
petition expressly challenged Ramon’s eligibility for public office based on the prohibition stated
in the Constitution and the Local Government Code against any person serving three
consecutive terms, and specifically prayed that "the Certificate of Candidacy filed by the
respondent Ramon be denied due course to or cancel the same and that he be declared as a
disqualified candidate."38
The denial of due course to or the cancellation of the CoC under Section 78 involves a finding
not only that a person lacks a qualification but also that he made a material representation that
is false.39 A petition for the denial of due course to or cancellation of CoC that is short of the
requirements will not be granted. In Mitra v. Commission on Elections,40 the Court stressed that
there must also be a deliberate attempt to mislead, thus:
The false representation under Section 78 must likewise be a "deliberate attempt to mislead,
misinform, or hide a fact that would otherwise render a candidate ineligible." Given the purpose
of the requirement, it must be made with the intention to deceive the electorate as to the would-
be candidate’s qualifications for public office. Thus, the misrepresentation that Section 78
addresses cannot be the result of a mere innocuous mistake, and cannot exist in a situation
where the intent to deceive is patently absent, or where no deception on the electorate results.
The deliberate character of the misrepresentation necessarily follows from a consideration of
the consequences of any material falsity: a candidate who falsifies a material fact cannot run; if
he runs and is elected, he cannot serve; in both cases, he can be prosecuted for violation of the
election laws.
It is underscored, however, that a Section 78 petition should not be interchanged or confused
with a Section 68 petition. The remedies under the two sections are different, for they are based
on different grounds, and can result in different eventualities.41 A person who is disqualified under
Section 68 is prohibited to continue as a candidate, but a person whose CoC is cancelled or
denied due course under Section 78 is not considered as a candidate at all because his status
is that of a person who has not filed a CoC.42 Miranda v. Abaya43 has clarified that a candidate
who is disqualified under Section 68 can be validly substituted pursuant to Section 77 because
he remains a candidate until disqualified; but a person whose CoC has been denied due course
or cancelled under Section 78 cannot be substituted because he is not considered a candidate. 1âwphi1
To be sure, the cause of Ramon’s ineligibility (i.e., the three-term limit) is enforced both by the
Constitution and statutory law. Article X, Section 8 of the 1987 Constitution provides:
Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected.
Section 43 of the Local Government Code reiterates the constitutional three-term limit for all
elective local officials, to wit:
Section 43. Term of Office. – (a) x x x
(b) No local elective official shall serve for more than three (3) consecutive terms in the same
position. Voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for which the elective official concerned
was elected. (Emphasis supplied.)
The objective of imposing the three-term limit rule was "to avoid the evil of a single person
accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged
stay in the same office." The Court underscored this objective in Aldovino, Jr. v. Commission on
Elections,44 stating:
All told, a disqualified candidate may only be substituted if he had a valid certificate of candidacy
in the first place because, if the disqualified candidate did not have a valid and seasonably filed
certificate of candidacy, he is and was not a candidate at all. If a person was not a candidate,
he cannot be substituted under Section 77 of the Code. Besides, if we were to allow the so-
called "substitute" to file a "new" and "original" certificate of candidacy beyond the period for the
filing thereof, it would be a crystalline case of unequal protection of the law, an act abhorred by
our Constitution.47 (Emphasis supplied)

x x x The framers of the Constitution specifically included an exception to the people’s freedom 3.
to choose those who will govern them in order to avoid the evil of a single person accumulating
excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the Granting without any qualification of petition in
same office. To allow petitioner Latasa to vie for the position of city mayor after having served SPA No. 09-029(DC) manifested COMELEC’s intention to
for three consecutive terms as a municipal mayor would obviously defeat the very intent of the declare Ramon disqualified and to cancel his CoC
framers when they wrote this exception. Should he be allowed another three consecutive terms
as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive That the COMELEC made no express finding that Ramon committed any deliberate
over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. misrepresentation in his CoC was of little consequence in the determination of whether his CoC
This is the very scenario sought to be avoided by the Constitution, if not abhorred by it. should be deemed cancelled or not.

To accord with the constitutional and statutory proscriptions, Ramon was absolutely precluded
from asserting an eligibility to run as Mayor of Lucena City for the fourth consecutive term.
Resultantly, his CoC was invalid and ineffectual ab initio for containing the incurable defect
consisting in his false declaration of his eligibility to run. The invalidity and inefficacy of his CoC
made his situation even worse than that of a nuisance candidate because the nuisance
candidate may remain eligible despite cancellation of his CoC or despite the denial of due course
to the CoC pursuant to Section 69 of the Omnibus Election Code.45
In Miranda v. Abaya,48 the specific relief that the petition prayed for was that the CoC "be not
given due course and/or cancelled." The COMELEC categorically granted "the petition" and then
pronounced — in apparent contradiction — that Joel Pempe Miranda was "disqualified." The
Court held that the COMELEC, by granting the petition without any qualification, disqualified
Joel Pempe Miranda and at the same time cancelled Jose Pempe Miranda’s CoC. The Court
explained:

Ramon himself specifically admitted his ineligibility when he filed his Manifestation with Motion The question to settle next is whether or not aside from Joel "Pempe" Miranda being disqualified
to Resolve on December 30, 2009 in the COMELEC.46 That sufficed to render his CoC invalid, by the Comelec in its May 5, 1998 resolution, his certificate of candidacy had likewise been
considering that for all intents and purposes the COMELEC’s declaration of his disqualification denied due course and cancelled.
had the effect of announcing that he was no candidate at all.
The Court rules that it was.
We stress that a non-candidate like Ramon had no right to pass on to his substitute. As Miranda
v. Abaya aptly put it:
Private respondent’s petition in SPA No. 98-019 specifically prayed for the following:
Even on the most basic and fundamental principles, it is readily understood that the concept of
WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by respondent for
a substitute presupposes the existence of the person to be substituted, for how can a person
the position of Mayor for the City of Santiago be not given due course and/or cancelled.
take the place of somebody who does not exist or who never was. The Court has no other choice
but to rule that in all the instances enumerated in Section 77 of the Omnibus Election Code, the
existence of a valid certificate of candidacy seasonably filed is a requisite sine qua non. Other reliefs just and equitable in the premises are likewise prayed for.

(Rollo, p. 31; Emphasis ours.)

In resolving the petition filed by private respondent specifying a very particular relief, the
Comelec ruled favorably in the following manner:
WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the
Petition. Respondent JOSE "Pempe" MIRANDA is hereby DISQUALIFIED from running for the
position of mayor of Santiago City, Isabela, in the May 11, 1998 national and local elections.
SO ORDERED.
(p.43, Rollo; Emphasis ours.)
From a plain reading of the dispositive portion of the Comelec resolution of May 5, 1998 in SPA
No. 98-019, it is sufficiently clear that the prayer specifically and particularly sought in the petition
was GRANTED, there being no qualification on the matter whatsoever. The disqualification was
simply ruled over and above the granting of the specific prayer for denial of due course and
cancellation of the certificate of candidacy. x x x.49
xxxx
x x x. There is no dispute that the complaint or petition filed by private respondent in SPA No.
98-019 is one to deny due course and to cancel the certificate of candidacy of Jose "Pempe"
Miranda (Rollo, pp. 26-31). There is likewise no question that the said petition was GRANTED
without any qualification whatsoever. It is rather clear, therefore, that whether or not the Comelec
granted any further relief in SPA No. 98-019 by disqualifying the candidate, the fact remains that
the said petition was granted and that the certificate of candidacy of Jose "Pempe" Miranda was
denied due course and cancelled. x x x.50
The crucial point of Miranda v. Abaya was that the COMELEC actually granted the particular
relief of cancelling or denying due course to the CoC prayed for in the petition by not subjecting
that relief to any qualification.
Miranda v. Abaya applies herein. Although Castillo’s petition in SPA No. 09-029 (DC) specifically
sought both the disqualification of Ramon and the denial of due course to or cancellation of his
CoC, the COMELEC categorically stated in the Resolution dated April 19, 2010 that it was
granting the petition. Despite the COMELEC making no finding of material misrepresentation on
the part of Ramon, its granting of Castillo’s petition without express qualifications manifested
that the COMELEC had cancelled Ramon’s CoC based on his apparent ineligibility. The
Resolution dated April 19, 2010 became final and executory because Castillo did not move for
its reconsideration, and because Ramon later withdrew his motion for reconsideration filed in
relation to it.
4.
Elected Vice Mayor must succeed
and assume the position of Mayor
due to a permanent vacancy in the office
On the issue of who should assume the office of Mayor of Lucena City, Castillo submits that the
doctrine on the rejection of the second-placer espoused in Labo, Jr. v. Commission on
Elections51 should not apply to him because Ramon’s disqualification became final prior to the
elections.52 Instead, he cites Cayat v. Commission on Elections,53 where the Court said:
x x x In Labo there was no final judgment of disqualification before the elections. The doctrine
on the rejection of the second placer was applied in Labo and a host of other cases because
the judgment declaring the candidate’s disqualification in Labo and the other cases had not
become final before the elections. To repeat, Labo and the other cases applying the doctrine on
the rejection of the second placer have one common essential condition — the disqualification
of the candidate had not become final before the elections. This essential condition does not
exist in the present case.
Thus, in Labo, Labo’s disqualification became final only on 14 May 1992, three days after the
11 May 1992 elections. On election day itself, Labo was still legally a candidate. In the present
case, Cayat was disqualified by final judgment 23 days before the 10 May 2004 elections. On
election day, Cayat was no longer legally a candidate for mayor. In short, Cayat’s candidacy for
Mayor of Buguias, Benguet was legally non-existent in the 10 May 2004 elections.
The law expressly declares that a candidate disqualified by final judgment before an election
cannot be voted for, and votes cast for him shall not be counted. This is a mandatory provision
of law. Section 6 of Republic Act No. 6646, The Electoral Reforms Law of 1987, states:
Sec. 6. Effect of Disqualification Case.— Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of votes in such election, the
Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest
and, upon motion of the complainant or any intervenor, may during the pendency thereof order
the suspension of the proclamation of such candidate whenever the evidence of his guilt is
strong. (Emphasis added)
Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when the
disqualification becomes final before the elections, which is the situation covered in the first
sentence of Section 6. The second is when the disqualification becomes final after the elections,
which is the situation covered in the second sentence of Section 6.
The present case falls under the first situation. Section 6 of the Electoral Reforms Law governing
the first situation is categorical: a candidate disqualified by final judgment before an election
cannot be voted for, and votes cast for him shall not be counted. The Resolution disqualifying
Cayat became final on 17 April 2004, way before the 10 May 2004 elections. Therefore, all the
8,164 votes cast in Cayat’s favor are stray. Cayat was never a candidate in the 10 May 2004
elections. Palileng’s proclamation is proper because he was the sole and only candidate, second
to none.54
Relying on the pronouncement in Cayat, Castillo asserts that he was entitled to assume the
position of Mayor of Lucena City for having obtained the highest number of votes among the
remaining qualified candidates.
It would seem, then, that the date of the finality of the COMELEC resolution declaring Ramon
disqualified is decisive. According to Section 10, Rule 19 of the COMELEC’s Resolution No.
8804,55 a decision or resolution of a Division becomes final and executory after the lapse of five
days following its promulgation unless a motion for reconsideration is seasonably filed. Under
Section 8, Rule 20 of Resolution No. 8804, the decision of the COMELEC En Banc becomes
final and executory five days after its promulgation and receipt of notice by the parties.
The COMELEC First Division declared Ramon disqualified through its Resolution dated April
19, 2010, the copy of which Ramon received on the same date.56 Ramon filed a motion for
reconsideration on April 21, 201057 in accordance with Section 7 of COMELEC Resolution No.
8696,58 but withdrew the motion on May 4, 2010,59 ostensibly to allow his substitution by Barbara
Ruby. On his part, Castillo did not file any motion for reconsideration. Such circumstances
indicated that there was no more pending matter that could have effectively suspended the
finality of the ruling in due course. Hence, the Resolution dated April 19, 2010 could be said to
have attained finality upon the lapse of five days from its promulgation and receipt of it by the
parties. This happened probably on April 24, 2010. Despite such finality, the COMELEC En
Banc continued to act on the withdrawal by Ramon of his motion for reconsideration through the
May 5, 2010 Resolution declaring the April 19, 2010 Resolution of the COMELEC First Division
final and executory.
Yet, we cannot agree with Castillo’s assertion that with Ramon’s disqualification becoming final
prior to the May 10, 2010 elections, the ruling in Cayat was applicable in his favor. Barbara
Ruby’s filing of her CoC in substitution of Ramon significantly differentiated this case from the
factual circumstances obtaining in Cayat. Rev. Fr. Nardo B. Cayat, the petitioner in Cayat, was
disqualified on April 17, 2004, and his disqualification became final before the May 10, 2004
elections. Considering that no substitution of Cayat was made, Thomas R. Palileng, Sr., his rival,
remained the only candidate for the mayoralty post in Buguias, Benguet. In contrast, after
Barbara Ruby substituted Ramon, the May 10, 2010 elections proceeded with her being
regarded by the electorate of Lucena City as a bona fide candidate. To the electorate, she
became a contender for the same position vied for by Castillo, such that she stood on the same
footing as Castillo. Such standing as a candidate negated Castillo’s claim of being the candidate
who obtained the highest number of votes, and of being consequently entitled to assume the
office of Mayor.
Indeed, Castillo could not assume the office for he was only a second placer. Labo, Jr. should
1âwphi1
be applied. There, the Court emphasized that the candidate obtaining the second highest
number of votes for the contested office could not assume the office despite the disqualification
of the first placer because the second placer was "not the choice of the sovereign will."60 Surely,
the Court explained, a minority or defeated candidate could not be deemed elected to the
office.61 There was to be no question that the second placer lost in the election, was repudiated
by the electorate, and could not assume the vacated position.62 No law imposed upon and
compelled the people of Lucena City to accept a loser to be their political leader or their
representative.63
The only time that a second placer is allowed to take the place of a disqualified winning
candidate is when two requisites concur, namely: (a) the candidate who obtained the highest
number of votes is disqualified; and (b) the electorate was fully aware in fact and in law of that
candidate’s disqualification as to bring such awareness within the realm of notoriety but the
electorate still cast the plurality of the votes in favor of the ineligible candidate.64 Under this sole
exception, the electorate may be said to have waived the validity and efficacy of their votes by
notoriously misapplying their franchise or throwing away their votes, in which case the eligible
candidate with the second highest number of votes may be deemed elected.65 But the exception
did not apply in favor of Castillo simply because the second element was absent. The electorate
of Lucena City were not the least aware of the fact of Barbara Ruby’s ineligibility as the
substitute. In fact, the COMELEC En Banc issued the Resolution finding her substitution invalid
only on May 20, 2011, or a full year after the decisions.
On the other hand, the COMELEC En Banc properly disqualified Barbara Ruby from assuming
the position of Mayor of Lucena City. To begin with, there was no valid candidate for her to
substitute due to Ramon’s ineligibility. Also, Ramon did not voluntarily withdraw his CoC before
the elections in accordance with Section 73 of the Omnibus Election Code. Lastly, she was not
an additional candidate for the position of Mayor of Lucena City because her filing of her CoC
on May 4, 2010 was beyond the period fixed by law. Indeed, she was not, in law and in fact, a
candidate.66
A permanent vacancy in the office of Mayor of Lucena City thus resulted, and such vacancy
should be filled pursuant to the law on succession defined in Section 44 of the LGC, to wit:67

Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and
Vice-Mayor. – If a permanent vacancy occurs in the office of the governor or mayor, the vice-
governor or vice-mayor concerned shall become the governor or mayor. x x x

WHEREFORE, the Court DISMISSES the petitions in these consolidated cases; AFFIRMS the
Resolution issued on May 20, 2011 by the COMELEC En Banc; and ORDERS the petitioners
to pay the costs of suit.

SO ORDERED.