REPUBLIC OF THE PHILIPPINES

COMMISSION ON ELECTIONS
OFFFICE OF THE PROVINCIAL ELECTION
SUPERVISOR
CAPITOL SITE, BATANGAS CITY

HENRY R. LAQUI, JR.,

Petitioner,

EO CASE NO. 15-057

For: Violation of Section 74 of
-versus-
the Omnibus Election
(Material Misrepresentation)

JAY MANALO ILAGAN,

Respondent.
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-x

COUNTER-AFFIDAVIT

I JAY MANALO ILAGAN, Filipino, of legal age, married, after

having been duly sworn to in accordance with law, hereby depose and
states:

1) I am the Respondent in the above-captioned case and the duly

elected Mayor of the Municipality of Mataas na Kahoy, Batangas. I
may be served with notices and other processes from this Honorable Office
through my counsel, Gana Atienza Avisado Law Offices with office
address at 3rd Floor, HPL Bldg., No. 60, Sen. Gil Puyat Ave., Makati City.

2) Petitioner HENRY R. LAQUI is a Filipino, of legal age with

residence address at District 1, Poblacion, Mataas na Kahoy, Batangas. He
may be served with pleadings, notices, orders and other processes of this
Honorable Court through his counsel Atty. Magelio S. Arboladura with
 [2]

office address at 2nd Floor, Raha Sulayman Building, 108 Benevidez Street,
Legaspi Village, Makati City.

3) For allegedly stating in my Certificate of Candidacy (“COC”

for brevity) that I am eligible to run for public office for the Office of the
Mayor in the Municipality of Mataasnakahoy, Batangas City, I am now
being charged with violation of Section 74 of the Omnibus Election Code.

4) I vehemently deny having committed the aforementioned

offense, the truth of the matter is stated hereunder.

A person is not a fugitive from

justice simply because a warrant of
arrest has been issued against him.
------------------------------------------

5) In his Petition, Petitioner alleged that I made a false material

representation in my COC when I declared under oath that I was eligible
for the Office of Mayor when in fact, I am allegedly a fugitive from justice,
in violation of the Omnibus Election Code. Nothing is further from the
truth.

6) Contrary to the perjurious accusations of Petitioner, I am not a

and could not be considered a “fugitive from justice” when I filed my
COC. As such, there exists neither factual nor legal ground to support
the conclusion that I am I am ineligible to run for the 2016 Mayoral
elections.

7) To set the record straight, I am but a humble balut vendor who

worked my way up from this unsuspecting sector of our Municipality of
Mataasnakahoy, Batangas. I do not have any political ambition, my
running for public office was never my plan, but the people of
Mataasnakahoy convinced me to do so. They had bequeathed me their
 [3]

trust and overwhelming support leading to my successful election to office

as Mayor in 2013.

8) Little did I know, while my success has earned the support of

my constituents has earned the ire of some political opponents who have
willingly and deliberately fabricated cases with the ultimate end to
disqualify me from the Office of the Mayor. At its fore, this spurious
election offense arose from a Complaint, I was never even made aware of,
for an alleged rape from a 19-year old woman, whom I have never met in
my entire existence but claimed to have accompanied me in Ormoc City to
allegedly help me set up a salon business.

9) On the basis of this clearly unfounded and fabricated story, on

14 February 2014, the Office of the City Prosecutor issued a Resolution
finding probable cause against me and recommended the filing of
Information against with the Regional Trial Court (“RTC” for brevity) of
Ormoc City for the crime of rape and violation of Republic Act No. 9208.

10) Unknown to me, the case was raffled to the RTC Branch 35 of
Ormoc City and warrants of arrest were immediately issued against me.
This became the basis of Petitioner’s allegations that I am “fugitive from
justice” a I was allegedly evading arrest after warrants has been issued for
violation of Section 4(a) of Republic Act 9208 and Rape. This is higly
incredible.

11) I had no idea that a case was filed against me. More so, that a
warrant of arrest had already been issued against me. Neither could I be
reasonably expected to have known this, since I was living in Batangas,
while the purported Complaint was filed in Ormoc City. Complainant
even deliberately declared a wrong address in apparent desire to deprive
me of my right to participate in the preliminary investigation.
 [4]

12) As can be gleaned, the warrants of arrest were issued by RTC

Ormoc City, Branch 35 after the conduct of a preliminary investigation
bearing my wrong addressed at No. 3765 Sgt. Esguerra St., Quezon City.
As I have repeatedly pointed out, the address declaredis is not my
address. It is a matter of public knowledge that I am an incumbent Mayor
of Mataasnakahoy, Batangas, naturally my seat of Office and
responsibilities dictate that I live and would be found at Mataasnakahoy,
Batangas if indeed they are determined to prosecute me for these
unthinkable crimes.

A copy of the Warrant of Arrest is attached hereto and made an

integral part hereof as Annex “1”.

13) As soon as I have learned that a warrant of arrest issued

against me in a court more or less five hundred kilometers (500 kms)
away from my home, I did not flee to evade prosecution. Instead, I opted
to face the charges against me and consistently availed of the remedies
available to me under the law.

14) Consitent with my innocence and the fact that I had been
deprived to refute these spurious and grotesquely imagined crimes, I have
purportedly commited, I immediately filed an Urgent Omnibus Motion to
Set Aside the Order of the Court dated April 2, 2014, Quash Warrant of Arrest
and Conduct a Re-Investigation (Annex “V” of the Petition) stating that I was
completely deprived of due process as Complainant therein gave a wrong
address - No. 3765 Sgt. Esguerra Ave, Brgy. South Triangle, Quezon City.
In support thereof, I even submitted a Certification issued by the
Barangay Chairman stating that I am not a resident of the said barangay.
Copies of the Urgent Omnibus Motion and the Certification dated 09
May 2014 are attached hereto and made integral parts hereof as Annex “2”
and “2-A”, respectively.

15) On 30 May 2014, the RTC Ormoc City, Branch 35 of which

issued the warrants of arrest found merit in his Urgent Omnibus Motion
 [5]

and in fact issued an Order countermanding the implementation of the

warrant of arrest, and directing the Office of the City Prosecutor (OCP) to
conduct a re-investigationan Order granting the Urgent Omnibus Motion,
the dispositive portion of which states:

“WHEREFORE, premises considered, the court

resolved to:

1. Defer the court proceedings until further order of

the court;
2. Countermand the implementation of the warrant of
arrest issued against accused Jay Ilagan y Manalo
until further Order of the court;
3. Direct the City Prosecutor to conduct a re-
investigation and to submit appropriate
recommendation within forty (40) days from receipt of
this Order.

SO ORDERED.

A copy of the Order dated 30 May 2014 is attached hereto and made
an integral part hereof as Annex “3”.

16) In view of thereof, 02 June 2014, this very same court issued a
Recall of Order of Arrest directed to the PNP Chief of Police, National
Bureau of Investigation and the PNP Criminal Investigation Command.

A copy of the Recall of Order of Arrest is attached hereto and made

an integral part hereof as Annex “4”.

17) Consistent with my intention to face the charges against me, I

also immediately complied with the Subpoena issued by the Office of the
City Prosecutor of Ormoc directing to submit my Counter-Affidavit. As in
fact, I even personally appeared before Assistant City Prosecutor Erwin
James B. Fabriga to affirm my Counter-Affidavit.
A copy of my Counter-Affidavit is attached hereto and made an
integral part hereof as Annex “5”.

18) Unfortunately, on 15 August 2014, a Resolution was issued by

the Office of the City Prosecutor of Ormoc finding probable against me for
 [6]

the crime of rape and violation of RA 9208. Without wasting time, I filed a
Motion for Reconsideration on 01 September 2014.
A copy of the Motion for Reconsideration is attached hereto and made an
integral part hereof as Annex “ 6”.

19) In a complete turnaround of events, an Order dated 04

September 2014 was issued by the RTC Ormoc City, Branch 35 pending
Resolution of my Motion for Reconsideration with the Office of the
Prosecutors, directing the immediate implementation of the warrants of
arrest against me.

20) Erroneously believing that justice and reason would prevail

amidst this political persecution, on 09 September 2014, I filed an Urgent
Motion for Reconsideration. Unfortunately, the same was denied in an Order
dated 10 October 2014.

21) As if being directed by an unseen hand, on the same date, the

Office of the City Prosecutor issued an Order denying my Motion for
Reconsideration of the Resolution dated 15 August 2014. With this, on 29
October 2014, I filed a Petition for Review with the Department of Justice
pursuant the 2000 NPS Rules on Appeal. This Petition for Review is still
pending and has yet to be resolved by the DOJ.

22) Undaunted, I even elevated the Order for re-implementation

of my warrants of arrests issued by the RTC, Ormoc City, Banch 65 to the
Court of Appeals via Petition for Certiorari. This was docketed as CA-GR
SP. NO. 08906.

23) In good faith and full confidence with our judicial system, I
have exhausted all the legal remedies available to me to question the
propriety of the Order implementing such warrants of arrest and even
 [7]

kept the trial court informed of this legal actions by furnishing it with
copies of my pleadings.

24) On 15 October 2015, I filed my COC with the COMELEC to

run again for the Office of the Mayor of the Municipality of
Mataasnakahoy, Batangas.
A copy of the Certificate of Candidacy is attached hereto and made
an integral part hereof as Annex “7”.

25) It is should be highly emphasize that that contrary to the

stance taken by Petitioner, any person in the exercise of even the
slightest cerebral function would understand that surrendering at his
point was still premature. Taking into consideration that my appeal was
still pending with the Court of Appeals and has yet to be resolved and the
propriety of the issuance of the warrants of arrest was still in question.
Undoubtedly, to do the otherwise would be seriously disadvantageous
as it would definitely render all legal remedies against the warrants of
arrest moot and moribund.

26) Unfortunately, in a complicit attempt to shroud the

proceedings in secrecy, it belatedly came to my knowledge that as early as
10 October 2014, while while the Petition for Certiorari was still pending
with the Court of Appeals, the Prosecution filed a Motion for Issuance of
Alias Warrant of Arrest against me, alleging that the police officers had a
difficulty in serving the warrants of arrest.
A copy of the Motion for Issuance of Alias Warrant of Arrest is attached
hereto and an made integral part hereof as Annex “8”.

27) Granting the said Motion, on 15 December 2014, the RTC

Branch 35 of Ormoc City issued an Alias Order of Arrest stating that “TO
ANY OFFICER OF THE LAW: You are hereby commanded to arrest JAY
ILAGAN y MANALO , who is said to be found at 3765 Sgt. Esguerra St.,
Quezon City, xxx”
 [8]

A copy of the Alias Order of Arrest is attached hereto and made an

integral part hereof as Annex “9”.

28) Obviously, these warrants of arrest could never be served

upon me and no amount of attempts would be sufficient to serve them
considering that as I, as I have consistently raised, is not a resident of
3765 Sgt. Esguerra St., Quezon City. Glaringly, the Prosecution purposely
used my wrong address despite the fact that I already make it on record
that the same is not my address attaching thereto the Certification issued by
Barangay Chairman Larry Handayan of Barangay South Triangle stating,
thus:

“This is to CERTIFY that based on available records of

this office and upon verification conducted by Ms.
Rowena P. Valencerina, Barangay Administrative
Aide II, MR. JAY MANALO ILAGAN, is not a
resident of No. 3765 Sgt. Esguerra Avenue, Barangay
South Triangle, Quezon City.

This CERTIFIES FURTHER that the said address is

non-existent in this Barangay.”

29) These only made clear that the wrong address was
intentionally made in order to show that I went into hiding to avoid
prosecution. For, had they only served the warrant of arrest in my correct
address then they would have found out that he did not even attempt to
escape or evade the charges against me. However, instead of supplying
the correct details after having made on record that the same was wrong,
the Prosecution consistently declared and used this wrong address in the
Alias warrant. This evinces bad faith and only made it more real and
evident that the the real purpose is to use these spurious and unfounded
criminal cases as a ground to disqualify me in the mayoralty elections.
Again, there is not even an ounce of truth to any of these lamentable
asseverations.

30) It must also be emphasized that the allegation of evading

arrest is totally inconsistent with my conduct of discharging my
 [9]

functions within the public view. My sworn duty as the Mayor of the
the Municipality of Mataasnakahoy demands my presence therein. I
never left the Mataasnakahoy.

31) As in fact, for the whole year of 2015, I had been attending
meetings, hearings, livelihood programs, seminars, workshops,
orientations and conferences in Mataasnakahoy. I even participated in the
activities of our municipality such as the Kababaihan Meeting in February
2015, Alay–Lakad Fun Run & Launching of Mr. & Ms. Alay Lakad on 08 July
2015,Awarding of Financial Assistance of PWD Parents on 07 August 2015,
ALSWDOPI Meeting on 15 October 2015, Awarding of Cheque Sustainable
Livelihood Program (SLP-Beneficiaries) on 19 August 2015, Civil Service Month
activity on 30 September 2015, Public Hearing (Re:Taal Lake Circumferential
Road) on 03 November 2015, Seminar-Workshop on Public Service and
Accountability on 24-25 November 2015, LPRAT Orientation/LPRAP Workshop
(Rub 2017) on 02 December 2015, Visitation of Project (Bayorbor National
Highschool) on 03 December 2015, Visitation of Project (Bayorbor Elementary
School) on 03 December 2015, Visitation of Project (Mataasnakahoy Central
School) on 03 December 2015, Retirement Honor of PINSP Rogelio B. Reyes
(Ret.) on 07 December 2015, Yearend Assessment of Civil Society Organizations /
Volunteers on 10 December 2015, Gift-giving 2015 on 11 December 2015,
General Assembly of Senior Citizens on 14 December 2015, Social Pension
Meeting on 18 December 2015; and Releasing of Aid to Individuals in Crisis
Situations on 21 December 2015.

Copies of the photographs are attached hereto and mad integral

parts hereof as Annexes “10” to “10-N”, respectively.

32) As my pubic duties require, I also signed official documents

such as Deed of Donations, Request for dwarf coconut seedlings/seednuts, Letter
Request to the Civil Service Commission, Certificate of Marriage, Panunumpa ng
Katungkulan, Mayor’s Clearance, among others.
 [ 10 ]

Copies of the Official Documents are attached hereto and mad

integral parts hereof as Annexes “11” to “11-N”, respectively.

33) Interestingly, despite these publicly known appearances

and discharge of my Official functions, I have never been arrested.
There was neither even an attempt to serve the warrants of arrest upon
me in my Office, if indeed, there is any hint of truth that warrants were
intended to place me within the jurisdiction of the issuing court to
prosecute me instead of malevolently persecuting me and using this case
only in a desperate attempt to disqualify me in the next the 2016 mayoral
elections.

34) As it now stands, stressed must be made to the fact that when
the Court of Appeals finally resolved my Petition in a Resolution dated 04
December 2015, I respected it and decided to no longer prolong the issue
by going to the Supreme Court. Forthwith, I filed a Motion for
Admission to Bail and manifested my intent to surrender to the Court.

A copy of the petition for Bail is attached hereto and made integral
part hereof as Annex “12”.

35) Thus, consistent with my intention to abide by the laws and

to face the spurious criminal cases against me, on 25 January 2016, I
voluntarily surrendered to the National Bureau of Investigation (“NBI”, for
brevity)
A copy of my Booking Sheet is attached hereto and made an integral
part hereof as Annex “13”.

36) As can be gleaned from the foregoing, I did not commit any
act which supports the highly incredulous conclusion that I am a
fugitive from justice. On the contrary, my conduct as already explained
hardly speaks that there was even an attempt to flee” to evade my
prosecution. Nevertheless, Petitioner insisted that I am a fugitive from
 [ 11 ]

justice for the simple reason that a warrant of arrest has been issued
against me. This is not well within the meaning of the law.

37) In the celebrated case of Rodriguez vs. Comelec, et al. (G.R. No.
120099, 24 July 1996), the Supreme Court has ruled that in determination
of whether a candidate is a fugitive from justice largely depends on the
circumstances showing ones’intent to evade’. The Supreme Court further
ruled that “the definition thus indicates that the intent to evade is the
compelling factor that animates one’s flight from a particular
jurisdiction.”

38) This definition cannot simply does not fit in my case. To

reiterate, I have no knowledge that a case was filed against me. I do not
even have any reason to expect that a case as grotesquely and
malevolently scripted for me would be filed. As there is no such
incident to begin with. Worse, from the time these cases were filed up to
the time of the issuance of the warrant of arrest down to the issuance of
the Allias Warrants of Arrest, my address is wrong. As such, there is
certainly no way for me to know that a case was filed in the jurisdiction
of the court a court more or less five hundred kilometers (500 kms) away
from my home at the Municipality of Mataasnakahoy, Batangas.

39) Further, even when I came to know of the warrant of arrest,

I did not flee, instead I faced the charges against me and have availed of
the remedies available to me. I cannot be faulted neither be charged as
fleeing to avoid prosecution when subsequently, a warrant of arrest was
re-implemented and an alias warrant bearing again my wrong address
were even issued as it was never even served upon me. In fact, it could
never be served upon me and was never meant to be served upon me. As
explained earlier, had it been the intention of the Prosecution, then they
would have used the correct address as already pointed out in my Urgent
Omibus Motion, yet they never did.
 [ 12 ]

40) Also, at that time when I still have my pending Appeal and
Petition with the Court of Appeals questioning the warrants of arrest, I
have every reason to stay within the Municipality of Maataasnakahoy and
devote utmost priority to the service of my constituents. To re-
emphasized, I could not have surrendered at that time to the jurisdiction of
Ormoc City as it would render moot the remedies available to me and
jeopardize the interest of the public whom I have solemnly swore to serve.

41) While I was discharging the functions of my Office within

the public knowledge and view, Prosecution never even attempted to
serve the warrant of arrest against me, to satisfy at the very least their
wild allegations that I fled to evade the prosecution of my alleged crime.
Sadly, they did not and even consistently used my wrong address. The
reason is not hard to understand, they knew that I would never flee and
would immediately submit myself to the authorities and this would,
grately defeat the very purpose why these unimaginable crime was even
fabricated in the first place.

42) Finaly, the fact that I voluntarily surrendered when a

Resolution had already been issued by the Court of Appeals sufficiently
shows good faith on my part to abide by the laws and subject to the
jurisdiction of the court.

43) Under these premises, my conduct before, during and after

warrants of arrest has been issued negates every intent on my part to
flee. The reckless conclusion of the Petitioner cannot overturn the
presumption of good faith in my favor when I filed my COC which
clearly suggests nothing more than the fact that I was never a fugitive
from justice.
 [ 13 ]

I did not commit any act of material

misrepresentation when I declared in
good faith in my Certificate of
Candidacy that I am eligible for the
public office.
-------------------------------------------------

44) In his Complaint, Petitioner conveniently concluded that I

have falsely represented in my COC that I am eligible to run for public
office relying heavily on his self serving and completely tailored-fit
conclusion that I am a fugitive from justice. Petitioner is threading
dangerous ground, fatal to my prosecution for election offense.

45) As I have extensively shown, I am not a fugitive from justice.

The records of this case belied the conclusion that I evaded the
prosecution of my alleged crimes. With this, it is easily deductible that
the allegations of material representation in my COC finds no support
for my indictment for violation of Section 74 of the Omnibus Election
Code.

46) In the plain language of Section 74 of the Omnibus Election Code

a candidate in his COC is only required to state among others, that he is
eligible for the office which he intends to run and the the facts stated
therein are true to the best of his knowledge. Thus:

“Sec. 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; xxx and that the facts
stated in the certificate of candidacy are true to
the best of his knowledge.” (emphasis ours)

47) Jurisprudence abounds that false material representation

consist of a deliberate attempt to mislead, misinform, or hide a fact
which would otherwise render a candidate ineligible. Accordingly, it
must be made with an intention to deceive the electorate as to ones’
 [ 14 ]

qualifications for public office. Thus, in Lluz et al. v. COMELEC et al., G.R.
No. 172840, 07 June 2007), the Supreme Court ratiocinated in this wise:

“Therefore, it may be concluded that the material

misrepresentation contemplated by Section 78 of the
Code refer[s] to qualifications for elective office. This
conclusion is strengthened by the fact that the
consequences imposed upon a candidate guilty of
having made a false representation in [the] certificate
of candidacy are grave to prevent the candidate from
running or, if elected, from serving, or to prosecute
him for violation of the election laws.  It could not
have been the intention of the law to deprive a
person of such a basic and substantive political
right to be voted for a public office upon just any
innocuous mistake.

Aside from the requirement of materiality, a false

representation under Section 78 must consist of a
deliberate attempt to mislead, misinform, or hide
a fact which would otherwise render a candidate
ineligible. In other words, it must be made with
an intention to deceive the electorate as to ones
qualifications for public office. xxx” (emphasis
ours)

48) Relatedly, it is well to pint out that in the Resolution of the

COMELEC which eventually leads to this present preliminary
investigation for my alleged violation of election offence, it did not rule as
to the presence or absence of intent to evade prosecution in the criminal
cases filed against me.

49) Worse, it is even of opinion that “the deliberateness of the

misrepresentation, much less one’s intent to defraud, is of bare significance
in a Section 78 petition as it is enough that the person’s declaration of a
material qualification in the CoC be false relying heavily on the on the
case of Tagolino vs. HRET et al., (G.R. No. 202202, 19 March 2013). This
definitely contrary to the established jurisprudence in determining
whether or not there is material misrepresentation in the COC of a
candidate. With this ruling, the COMELEC is now setting a dangerous
 [ 15 ]

precedent that good faith is not a defense in a Petition for Cancellation of

COC under Section 78.

50) It must be borne in mind that violation of Section 74 of the

Omnibus Election Code is a specie of perjury, which is the act of
knowingly making untruthful statements under oath. Settled is the rule
that for perjury to be committed, it must be made with regard deliberate
and willful assertion of falsehood.

51) Clearly, intent to deceive remains to be a crucial test in

determining whether a person can be charged with violating Section 74
of in relation to Section 262 of the Omnibus Election Code. Thus, in the
recently decided case of Mary Grace Natividad S. Poe-Llamanzares vs.
Commission on Elections, G.R. No. 221697, March 8, 2016, concurring opinion,
Justice Marvic F. Leonen, the Supreme Court succinctly put:

In  Villafuerte v. Commission on Elections

(G.R. No. 206698, February 25, 2014), Hayudini v.
Commission on Elections (G.R. No. 207900, April 22,
2014, Jalover v. Osmeña,  G.R. No. 209286, and
Agustin  v. Commission on  Elections (G.R. No.
207105, November 10, 2015) - all decided after
Tagolino - this  court reaffirmed "intent to
deceive" as an integral element of a Section 78
petition. Unlike  Tagolino,  this court's Decisions
in  Villafuerte, Hayudini, Jalover,
and  Agustin  directly dealt with and squarely ruled on
the issue of whether the Commission on Elections
gravely abused its discretion in granting or denying
Section 78 petitions. Their affirmation of intent to
deceive as an indispensable requirement was part of
their very ratio decidendi and not mere obiter dicta.
Since this ratio decidendi has been repeated, it now
partakes of the status of jurisprudential doctrine.
Accordingly, the statement in  Tagolino  that
dispenses with the requirement of intent to
deceive cannot be considered binding. “ (

“That intent to deceive is an inherent element

of a Section 78 petition is reflected by the grave
consequences facing those who make false material
 [ 16 ]

representations in their certificates of candidacy. They

are deprived of a fundamental political right to
run for public office. Worse, they may be
criminally charged with violating election laws,
even with perjury. For these reasons, the false
material representation referred to in Section 78
cannot "just [be] any innocuous mistake.”
(emphasis ours)

52) Applying this in my case, there is not even a scintilla of

evidence that I intended to deceive the electorate as to my qualification
to run for the Office of the Mayor. Neither was there any evidence to
show that I “deliberate attempted to mislead, misinformed, or hide a fact
that I am a fugitive from justice. As there was not even a point that I am
a fugitive from justice which would otherwise render me ineligible to
run for the said public post.

53) Further, a cursory reading Section 74 of the Omnibus Election

Code would readily show the intention of the law to limit culpability
ones culpability as to the manner by which matters represented therein
was to be stated. Indeed, other the matters required to be stated the said
provision, it further requires the candidate to declare that the facts stated
in the certificate "are true to the best of my knowledge." Nothing therein
which requires the candidate to make such declaration is absolute
certainty, free from any error which may arise from such facts within the
knowledge and possession of the candidate at the time he made such
declaration.

54) Surely, had “absolute certainty” been the intention of the

law, then the framers of the Omnibus Election would have directly
declared so. On the contrary, the framers of the code even limited the
applications.

55) It is a settled principle in statutory construction that whenever

possible, a legal provision, phrase, or word must not be so construed as to
 [ 17 ]

be meaningless and a useless surplusage in the sense of adding nothing to

the law or having no effect on it. Equally well-settled is the rule that a
statute imposing criminal liability should be construed narrowly in its
coverage such that only those offenses clearly included, beyond reasonable
doubt, will be considered within the operation of the statute.

56) Conformably to the foregoing, Section 74 of the Omnibus

Election Code does allow for mistakes in the certificate of candidacy if
made in “good faith”. (J. Mendoza, Separate Opinion in  Romualdez-Marcos v.
Commission on Elections,  318 Phil. 329, 463 (1995) [Per J. Kapunan, En Banc]).

57) Consistent with the requirement of the said provision, there

is no gain saying that it is to the best of my knowledge that at that time
when I filed my COC I had reasonable grounds to state in my COC that
I am eligible to seek an elective position. Being an incumbent Mayor of
the Municipality of Mataasnakahoy, I had every reason to believed in
good faith that I possessed all the qualifications and none of the
disqualification to run for re-election. Thus, there is no material
representation to even speak of.

58) It is elementary that burden of proof is the duty of a party to

present evidence on the facts in issue necessary to establish a claim by
such amount of evidence required by law. It is settled that in the Petition
for Cancellation under Section 78 of the Omnibus Election Code filed in
this case, it is Petitioner which has the burden to prove his allegations.
Regrettably, the present Complaint was bereft of showing that Petitioner
has able to discharge said burden. In fact, no evidence was ever presented
to prove the fact that herein Petitioner intended to mislead, misinform, or
hide a fact when I filed my COC for the 09 May 9, 2016 National and Local
Elections. Simply stated, as the basis of this present inquiry is the very
same Complaint filed by Petitioner, then this too, miserably failed to
overcome the burden to indict me for this alleged election offenses.
 [ 18 ]

The Complaint must be dismissed

for lack of probable cause that a
violation of election offense has been
committed.
-------------------------------------------------

59) I have been a public servant for several years. During my term
of Office as Mayor of Mataasnakahoy, I did everything within my power
to serve my constituents, while my political opponents kept themselves
busy fabricating cases in an attempt to unseat me. Threatened by the
overwhelming support I was receiving in Mataasnakahoy, my political
opponents even fabricated evidence in support of the cases filed against
me to make it appear that I violated the law which warrants the harshest
penalty of disqualification from public service.

60) Whatever personal or political agenda my opponents may

have, it cannot erase and overturn the fact that the people of
Mataasnakahoy gave me their resounding support as their leader. The
recent 09 May 2016 Elections, despite the highly publicized and
scandalized criminal cases hurled against me, I received the
overwhelming number of votes as Mayor of Mataasnakahoy against
private respondent Gualberto Silva.

A copy my Certificate of Canvass of Votes as Mayor of

Mataasnakahoty is attached hereto and made integral part hereof as
Annexes “13”.

61) As explained by my lawyers, in determining whether there is

merit in the allegations in the complaint, all the circumstances taken
together are necessary in order to see if there is probable cause to hold
liable the persons charged with an offense. In this case, clearly there is
none. On the contrary, the factual background of this case would readily
show that the allegations of the complaint against us are baseless that it
must necessarily succumb to a dismissal. To be sure, this case is a mere
harassment against us and certainly politically motivated.
 [ 19 ]

62) According to our lawyers, probable cause for purposes of

filing criminal information was defined by the Supreme Court in the case
of Vide Allado vs. Diokno (232 SCRA 192) as “… the existence of such facts
and circumstances as would excite the belief in a reasonable mind, acting on the
facts within the knowledge of the prosecutor, that the person charged was guilty of
the crime for which he was prosecuted…”

63) Mere wild allegations, without more, could never sustain an

indictment for Section 261(o) of the Omnibus Election Code. In the case
of Bernardo vs. Mendoza, (90 SCRA 214, 1979) and Vda. de Jacob vs. Puno (131
SCRA 148-149, 1984), the Supreme Court emphasized that “It should be
realized, however, that when a man is haled to court on a criminal
charge, it brings in its wake problems not only for the accused but for
his family as well. Therefore, it behooves a prosecutor to weigh the
evidence carefully and to deliberate thereon to determine the existence
of a prima facie case before filing the information in court. Anything
less would be a dereliction of duty.”

64) Probable cause, for purposes of filing a criminal information,

has been defined as such facts as are sufficient to engender a well-founded
belief that a crime has been committed and that respondent is probably
guilty thereof, and should be held for trial. Probable cause is meant such
set of facts and circumstances, which would lead a reasonably discreet and
prudent man to believe that the offense charged in the Information, or any
offense included therein, has been committed by the person sought to be
arrested. In determining probable cause, the average person weighs facts
and circumstances without resorting to the calibrations of the rules of
evidence of which he has no technical knowledge. He relies on common
sense. A finding of probable cause needs only to rest on evidence showing
that, more likely than not, a crime has been committed and that it was
committed by the accused. Probable cause demands more than bare
suspicion, but it requires less than evidence that would justify a
 [ 20 ]

conviction. (Clay & Feather International, Inc., Raul O. Arambulo, and Adam
E. Jimenez III vs. Alexander T. Lichaytoo and Clifford T. Lichaytoo, G.R. No.
193105, May 30, 2011).
65) In the case of Marietta K. Ilusorio vs. Sylvia K. Ilusorio, Cristina
A. Ilusorio, Jovito Castro and five (5) John Does (G.R. No. 171659, December 13,
2007), the Supreme Court emphasized the importance of preliminary
investigation and declared that “a prosecutor, by the nature of his office,
is under no compulsion to file a particular criminal information where
he is convinced that there is not enough evidence to support its
averments, or that the evidence at hand, to his mind, necessarily leads to
a different conclusion.” Thus,

“The conduct of preliminary investigation for the

purpose of determining the existence of probable
cause is executive in nature. The right to prosecute
crime is reposed in the executive department of the
government primarily responsible for the faithful
execution of the laws of the land. This right vests the
government prosecutor with a wide latitude of
discretion on what and whom to charge upon proper
finding of probable cause, depending on a smorgasbord
of factors best appreciated by him. The preliminary
investigation also serves to secure the innocent
against hasty, malicious, and oppressive
prosecution, and to protect him from an open
accusation of a crime, and the expense and
anxiety of a public trial. It likewise protects the
State from useless and expensive trials, if
unwarranted.

Thus, a prosecutor, by the nature of his

office, is under no compulsion to file a particular
criminal information where he is convinced that
there is not enough evidence to support its
averments, or that the evidence at hand, to his
mind, necessarily leads to a different conclusion.
(emphasis ours)

66) My political opponents lost badly in the last elections. Up to

now, they refuse to accept their defeat. What they failed to achieve in the
last elections, they are now trying to secure by way of this complaint. This
cannot and should not be done. The people of the Mataasnakahoy have
 [ 21 ]

already spoken. Their will cannot be frustrated. I therefore implore this

Honorable Office to dismiss this frivolous complaint and uphold the will
of the people.

67) I am executing this Counter-Affidavit to attest to the truth of

the foregoing statements and in support of our prayer for the outright
dismissal of the Complaint for utter lack of merit.

FURTHER AFFIANTS SAYETH NAUGHT.

IN WITNESS WHEREOF, we have hereunto affixed our signatures

this ___ day of September 2016 in Tacloban City.

JAY MANALO ILAGAN

Affiant

SUBSCRIBED AND SWORN to before me this ___ day of August

2016 affiant exhibited to me his identifications card
No:___________________ issued by the______________________________.

Doc. No. _____;

Page No. _____;
Book No. _____;
Series of 2016.