Full Text Constitutional Commissions Cases

1 | C o n s ti t u ti o n a l c o m m i s s i o n s c a s e s
Republic of the Philippines On February 22, 2010,President Arroyo issued Executive Order No. 864 (EO
SUPREME COURT 864), whose complete text is quoted as follows:
Manila
EXECUTIVE ORDER NO. 864
EN BANC
INCLUSION OF THE CHAIRMAN OF THE CIVIL SERVICE COMMISSION IN THE
G.R. No. 191672 November 25, 2014 BOARD OF TRUSTEES/DIRECTORS OF THE GOVERNMENT SERVICE
INSURANCE SYSTEM, PHILIPPINE HEALTH INSURANCE CORPORATION,
DENNIS A. B. FUNA, Petitioner, EMPLOYEES’ COMPENSATION COMMISSION AND THE HOME
vs. DEVELOPMENT MUTUAL FUND
THE CHAIRMAN, CIVIL SERVICE COMMISSION, FRANCISCO T. DUQUE III,
EXECUTIVE SECRETARY LEANDRO R. MENDOZA, OFFICE OF THE WHEREAS, Section 2 (1), Article IX-B of the 1987 Philippine Constitution
PRESIDENT, Respondents. provides that the civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including government-
DECISION owned or controlled corporations with original charters;
BERSAMIN, J.: WHEREAS, Section 3, Article IX-B of the 1987 Constitution mandates,

among others, that the Civil Service Commission (CSC), as the central
The independence of the Civil Service Commission (CSC) is explicitly personnel agency of the government, shall establish a career service and
mandated under Section 1,1 Article IX-A of the 1987 Constitution. adopt measures to promote morale, efficiency, integrity, responsiveness,
Additionally, Section 2,2 Article IX-A of the 1987 Constitution prohibits its progressiveness, and courtesy in the civil service, and shall strengthen the
Members, during their tenure, from holding any other office or merit and rewards system, integrate all human resources development
employment. programs for all levels and ranks, and institutionalize a management
climate conducive to public accountability; WHEREAS, Section 14, Chapter
3, Title I-A, Book V of the Administrative Code of 1987 (Executive Order No.
These constitutional provisions3 are central to this special civil action for
292) expressly states that the Chairman of the CSC shall bea member of
certiorari and prohibition brought to assail the designation of Hon.
the Board of Directors or of other governing bodies of government entities
Francisco T. Duque III, Chairman of the CSC, as a member of the Board of
whose functions affect the career development, employment, status,
Directors or Trustees in an ex officio capacity of the (a) Government
rights, privileges, and welfare of government officials and employees, such
Service Insurance System (GSIS); (b) Philippine Health Insurance
as the Government Service Insurance System, Foreign Service Board,
Corporation (PHILHEALTH), (c) the Employees Compensation Commission
Foreign Trade Service Board, National Board for Teachers, and such other
(ECC), and (d) the Home Development Mutual Fund (HDMF).
similar boards as may be created by law;
Antecedents
WHEREAS, Presidential Decree No. 1 dated September 24, 1972, explicitly
empowers the President of the Republic of the Philippines to reorganize
On January 11, 2010, then President Gloria Macapagal-Arroyo appointed the entire Executive Branch of the National Government, as a vital and
Duque as Chairman of the CSC. The Commission on Appointments priority measure to effect the desired changes and reforms in the social,
confirmed Duque’s appointment on February 3, 2010. economic and political structure of the country;
WHEREAS, Section 18 (a), ArticleIV of Republic Act No. 7875 (An Act Done in the City of Manila, this 22nd day of February, in the year of Our
Instituting a National Health Insurance Program For All Filipinos and Lord, Two Thousand and Ten.4
Establishing the Philippine Health Insurance Corporation For The Purpose)
or otherwise known as the "National Health Insurance Act of 1995", Pursuant to EO 864, Duque was designated as a member of the Board of
Section 42 (G) of Republic Act No. 8291 (An Act Amending Presidential Directors or Trustees of the following government-owned or government-
Decree No. 1146, as amended, Expanding and Increasing the Coverage of controlled corporations (GOCCs): (a) GSIS; (b) PHILHEALTH;(c) ECC; and (d)
Benefits of the Government Service Insurance System, Instituting Reforms HDMF.
Therein and For Other Purposes) or otherwise known as "The Government
Service Insurance System Act of 1997, Article 176, Chapter 3 of Presidential On April 8, 2010, petitioner Dennis A.B. Funa, in his capacity as taxpayer,
Decree No. 626 (Employees’ Compensation and State Insurance Fund), and concerned citizen and lawyer, filed the instant petition challenging the
Presidential Decree No. 1530 (Instituting a System of Voluntary constitutionality of EO 864, as well as Section 14, Chapter 3, Title I-A, Book
Contributions for Housing Purpose[s]) or otherwise known as the "Pag-ibig V of Executive Order No. 292 (EO 292), otherwise known as The
Fund" reveal that while the Chairman of the CSC is not included in the list Administrative Code of 1987, and the designation of Duque as a member
of those who could sit as a member of the Board of Directors of the of the Board of Directors or Trustees of the GSIS, PHIC, ECC and HDMF for
Philhealth or of the Board of Trustees of the GSIS, ECC and the Pag-ibig being clear violations of Section 1 and Section 2, Article IX-A of the 1987
Fund, said laws did not expressly repeal Section 14, Chapter 3, Title I-A, Constitution.
Book V of the Administrative Code of 1987 and Presidential Decree No. 1;
WHEREAS, it is settled that repeals by implication are not favored as laws
The Case
are presumed to be passed with deliberation and full knowledge of all laws
existing on the subject;
The Court is confronted with the proper interpretation of Section 1 and
Section 2, Article IX-A of the 1987 Constitution and Section 14, Chapter 3,
WHEREAS, a scrutiny of the mandated functions and duties of the Board of
Title I-A, Book V of EO 292 to ascertain the constitutionality of the
Trustees of the GSIS, ECC and HDMF and the Board of Directors of the
designation of Duque, in an ex officio capacity, as Director or Trustee of the
PhilHealth shows that the same are all geared towards the advancement of
GSIS, PHIC, ECC and HDMF.
the welfare of government officials and employees, which functions fall
within the province of the CSC;
Petitioner asserts that EO 864 and Section 14, Chapter 3, Title I-A, Book V
of EO 292 violate the independence of the CSC, which was constitutionally
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the
created to be protected from outside influences and political pressures
Republic of the Philippines, by virtue of the powers vested in me by law, do
due to the significance of its government functions. 5 He further asserts that
hereby order and direct:
such independence is violated by the fact that the CSC is not a part of the
Executive Branch of Government while the concerned GOCCs are
Section 1. The Chairman of the Civil Service Commission shall sit as an Ex- considered instrumentalities of the Executive Branch of the
Officio member of the Board of Trustees of the Government Service Government.6 In this situation, the President may exercise his power of
Insurance System, Employees’ Compensation Commission and the Home control over the CSC considering that the GOCCs in which Duque sits as
Development Mutual Fund and the Board of Directors of the Philippine Board member are attached to the Executive Department. 7
Health Insurance Corporation pursuant to Section 14, Chapter 3, Title I-A,
Book V of Executive Order No. 292 (Administrative Code of 1987).
Petitioner argues that Section 14, Chapter 3, Title I-A, Book V of EO 292
unduly and unconstitutionally expands the role of the CSC, which is
Section 2. This Executive Order shall take effect immediately. primarily centered on personnel-related concerns involving government
workers, to include insurance, housing and health matters of employees in that since the 1987 Constitution, which provides a stricter prohibition
the government service.8 He observes that the independence of the CSC against the holding of multiple offices by executive officials, allows them to
will not be compromised if these matters are instead addressed by hold positions in ex officio capacities, the same rule is applicable to
entering into a memorandum of agreement or by issuing joint circulars members of the Constitutional Commissions.18 Moreover, the mandatory
with the concerned agencies, rather than allowing a member of the CSC to tenor of Section 14, Chapter 3, Title I-A, Book V of EO 292 clearly indicates
sit as a member of the governing Boards of these agencies. 9 that the CSC Chairman’s membership in the governing bodies mentioned
therein merely imposes additional duties and functions as an incident and
Petitioner notes that the charters of the GSIS, PHILHEALTH, ECC and HDMF necessary consequence of his appointment as CSC Chairman. 19
do not mention that the CSC Chairman sits as a member of their governing
Boards in an ex officiocapacity.10 Such being the case, the President may Respondents insist that EO 864 and Section 14, Chapter 3, Title I-A, Book V
not amend the charters, which are enacted by Congress, by the mere of EO 292, as well as the charters of the GSIS, PHILHEALTH, ECC and HDMF,
issuance of an executive order.11 are consistent with each other. While the charters of these GOCCs do not
provide that CSC Chairman shall be a member of their respective governing
Petitioner posits that EO 864 and Section 14, Chapter 3, Title I-A, Book V of Boards, there islikewise no prohibition mentioned under said charters. 20 EO
EO 292 violate the prohibition imposed upon members of constitutional 864, issued in conformity with Section 14, Chapter 3, Title I-A, Book V of EO
commissions from holding any other office or employment. 12 A conflict of 292, could not have impliedly amended the charters of the GSIS,
interest may arise in the event that a Board decision of the GSIS, PHILHEALTH, ECC and HDMF because the former relates to the law on the
PHILHEALTH, ECC and HDMF concerning personnel-related matters is CSC while the latter involve the creation and incorporation of the
elevated to the CSC considering that such GOCCs have original charters, respective GOCCs.21 As their subject matters differ from each other, the
and their employees are governed by CSC laws, rules and regulations. 13 enactment of the subsequent law is not deemed to repeal or amend the
charters of the GOCCs, being considered prior laws. 22
In their Comment, respondents maintain that Duque’s membership in the
governing Boards of the GSIS, PHILHEALTH, ECC and HDMF is Issue
constitutional. They explain that EO 864 and Section 14, Chapter 3, Title IA,
Book V of EO 292 preserve the independence of the CSC considering that Does the designation of Duque as member of the Board of Directors or
GOCCs with original charters such as the GSIS, PHILHEALTH, ECC and HDMF Trustees of the GSIS, PHILHEALTH, ECC and HDMF, in an ex officio capacity,
are excluded from the supervision and control that secretaries and heads impair the independence of the CSC and violate the constitutional
exercise over the departments to which these GOCCs are prohibition against the holding of dual or multiple offices for the Members
attached.14 Ultimately, these GOCCs are exempted from the executive of the Constitutional Commissions?
control of the President.15
Our Ruling
As to the matter of conflict of interest, respondents point out that Duque is
just one member of the CSC, or of the Boards of the GSIS, PHILHEALTH, ECC The Court partially grants the petition. The Court upholds the
and HDMF, such that matters resolved by these bodies may be resolved constitutionality of Section 14, Chapter 3, Title I-A, Book V of EO 292, but
with or without Duque’s participation.16 Respondents submit that the declares unconstitutional EO 864 and the designation of Duque in an ex
prohibition against holding any other office or employment under Section officio capacity as a member of the Board of Directors or Trustees of the
2, Article IX-A of the 1987 Constitution does not cover positions held GSIS, PHILHEALTH, ECC and HDMF.
without additional compensation in ex officio capacities. Relying on the
pronouncement in Civil Liberties Union v. Executive Secretary, 17 they assert 1.
Requisites of judicial review 1.) For taxpayers, there must be a claim of illegal disbursement of
public funds or that the tax measure is unconstitutional;
Like almost all powers conferred by the Constitution, the power of judicial
review is subject to limitations, to wit: (1) there must be an actual case or 2.) For voters, there must be a showing of obvious interest in the
controversy calling for the exercise of judicial power; (2) the person validity of the election law in question;
challenging the act must have the standing to question the validity of the
subject act or issuance; otherwise stated, he must have a personal and 3.) For concerned citizens, there must be a showing that the
substantial interest in the case such that he has sustained, or will sustain, issues raised are of transcendental importance which must be
direct injury as a result of its enforcement; (3) the question of settled early; and
constitutionality must be raised at the earliest opportunity; and (4) the
issue of constitutionality must be the very lis motaof the case. 23 4.) For legislators, there must be a claim that the official action
complained of infringes their prerogatives as legislators.
Here, the Office of the Solicitor General (OSG) only disputes the locus
standi of petitioner who has filed this suit in his capacity as taxpayer, This case before Us is of transcendental importance, since it obviously has
concerned citizen and lawyer.24 In view of the earlier dispositions by the "far-reaching implications," and there is a need to promulgate rules that
Court in similar public law cases initiated by petitioner, we again affirm his will guide the bench, bar, and the public in future analogous cases. We,
locus standito bring a suit of this nature. In Funa v. Agra, 25 the Court has thus, assume a liberal stance and allow petitioner to institute the instant
recently held: petition.20 (Bold emphasis supplied)
x x x [T]he locus standi of the petitioner as a taxpayer, a concerned citizen In Funa v. Ermita, the Court recognized the locus standi of the petitioner as
and a lawyer to bring a suit ofthis nature has already been settled in his a taxpayer, a concerned citizen and a lawyer because the issue raised
favor in rulings by the Court on several other public law litigations he therein involved a subject of transcendental importance whose resolution
brought. In Funa v. Villar, for one, the Court has held: was necessary to promulgate rules to guide the Bench, Bar, and the public
in similar cases.
To have legal standing, therefore, a suitor must show that he has sustained
or will sustain a "direct injury" as a result of a government action, or have a The Court notes, however, that during the pendency of this petition,
"material interest" in the issue affected by the challenged official act. Duque’s designation as Director or Trustee of the GSIS, PHILHEALTH, ECC
However, the Court has time and again acted liberally on the locus standi and PHIC could have terminated or been rendered invalid by the
requirements and has accorded certain individuals, not otherwise directly enactment of Republic Act No. 10149,26 thus causing this petition and the
injured, or with material interest affected, by a Government act, standing main issue tendered herein moot and academic. Pertinent provisions of
to sue provided a constitutional issue of critical significance is at stake. The Republic Act No.10149, which took effect on June 6, 2011, state:
rule on locus standi is after all a mere procedural technicality in relation to
which the Court, in a catena of cases involving a subject of transcendental
SEC. 13. Number of Directors/Trustees.—The present number of
import, has waived, or relaxed, thus allowing non-traditional plaintiffs,
Directors/Trustees provided in the charter of the GOCCs shall be
such as concerned citizens, taxpayers, voters or legislators, to sue in the
maintained.
public interest, albeit they may not have been personally injured by the
operation of a law or any other government act. In David, the Court laid
SEC. 14. Ex Officio Alternates.—The ex officio members of the GOCC may
out the bare minimum norm before the so-called "non-traditional suitors"
designate their respective alternates who shall be the officials next-in-rank
may be extended standing to sue, thusly:
to them and whose acts shall be considered the acts of their principals.
SEC. 15. Appointment of the Board of Directors/Trustees of GOCCs.—An A moot and academic case is one thatceases to present a justiciable
Appointive Director shall be appointed by the President of the Philippines controversy by virtue of supervening events, so that a declaration thereon
from a shortlist prepared by the GCG. would be of no practical use or value.27
The GCG shall formulate its rules and criteria in the selection and 2.
nomination of prospective appointees and shall cause the creation of
search committees to achieve the same. All nominees included in the list Unconstitutionality of Duque’sdesignation as member
submitted by the GCG to the President shall meet the Fit and Proper Rule
as defined un this Act and such other qualifications which the GCG may of the governing boards of the GSIS, PHIC, ECC and HDMF
determine taking into consideration the unique requirements of each
GOCC. The GCG shall ensure that the shortlist shall exceed by at least fifty
Nonetheless, this Court has exercised its power of judicial review in cases
percent (50%) of the number of directors /trustees tobe appointed. In the
otherwise rendered moot and academic by supervening events on the
event that the President does not see fit to appoint any of the nominees
basis of certain recognized exceptions, namely: (1) there is a grave
included in the shortlist, the President shall ask the GCG to submit
violation of the Constitution; (2) the case involves a situation of
additional nominees.
exceptional character and is of paramount public interest; (3) the
constitutional issue raised requires the formulation of controlling principles
xxxx to guide the Bench, the Bar and the public; and (4) the case is capable of
repetition yet evading review.28
SEC. 17. Term of Office.—Any provision in the charters of each GOCC to the
contrary notwithstanding, the term of office of each Appointive Director The situation now obtaining definitely falls under the requirements for the
shall be for one(1) year, unless sooner removed for cause: Provided, review of a moot and academic case. For the guidance of and as a restraint
however,That the Appointive Director shall continue to hold office until the upon the future,29 the Court will not abstain from exercising its power of
successor is appointed. An Appointive Director may be nominated by the judicial review, the cessation of the controversy notwithstanding. We
GCG for reappointment by the President only if one obtains a performance proceed to resolve the substantive issue concerning the constitutionality of
score of above average or its equivalent or higher in the immediately Duque’s ex officio designation as member of the Board of Directors or
preceding year of tenure as Appointive Director based on the performance Trustees of the GSIS, PHILHEALTH, ECC and HDMF.
criteria for Appointive Directors for the GOCC.
The underlying principle for the resolution of the present controversy rests
Appointed to any vacancy shall be only for the unexpired term of the on the correct application of Section 1 and Section 2, Article IX-A of the
predecessor. The appointment of a director to fill such vacancy shall be in 1987 Constitution, which provide: Section 1. The Constitutional
accordance with the manner provided in Section 15 of this Act. Commissions, which shall be independent, are the Civil Service
Commission, the Commission on Elections, and the Commission on Audit.
Any provision of law to the contrary notwithstanding, all incumbent CEOs
and appointive members of the Board of GOCCs shall, upon approval of Section 2. No Member of a Constitutional Commission shall, during his
this Act, have a term of office until June 30, 2011, unless sooner replaced tenure, hold any other office or employment. Neither shall he engage in
by the President: Provided, however, That the incumbent CEOs and the practice of any profession or in the active management or control of
appointive members of the Board shall continue in office until the any business which in any way may be affected by the functions of his
successor have been appointed by the President. office, nor shall he be financially interested, directly or indirectly, in any
contract with, or in any franchise or privilege granted by the Government,
any of its subdivisions, agencies, or instrumentalities, including Section 7. x x x

government-owned or controlled corporations or their subsidiaries.
Section 1, Article IX-A of the 1987 Constitution expressly describes all the Unless otherwise allowed by law or the primary functions of his position,
Constitutional Commissions as "independent."Although their respective no appointive official shall hold any other office or employment in the
functions are essentially executive in nature, they are not under the Government or any subdivision, agency or instrumentality
control of the President of the Philippines in the discharge of such thereof,including government-owned or controlled corporations or their
functions. Each of the Constitutional Commissions conducts its own subsidiaries.
proceedings under the applicable laws and its own rules and in the
exercise of its own discretion. Its decisions, orders and rulings are subject In Funa v. Ermita,33 where petitioner challenged the concurrent
only to review on certiorariby the Court as provided by Section 7, Article appointment of Elena H. Bautista as Undersecretary of the Department of
IX-A of the 1987 Constitution.30 To safeguard the independence of these Transportation and Communication and as Officer-in-Charge of the
Commissions, the 1987 Constitution, among others,31 imposes under Maritime Industry Authority, the Court reiterated the pronouncement in
Section 2, Article IX-A of the Constitution certain inhibitions and Civil Liberties Union v.The Executive Secretary on the intent of the Framers
disqualifications upon the Chairmen and members to strengthen their on the foregoing provision of the 1987 Constitution, to wit:
integrity, to wit:
Thus, while all other appointive officials in the civil service are allowed to
(a) Holding any other office or employment during their tenure; hold other office or employment in the government during their tenure
when such is allowed by law orby the primary functions of their positions,
(b) Engaging in the practice of any profession; members of the Cabinet, their deputies and assistants may do so only
when expressly authorized by the Constitution itself. In other words,
(c) Engaging in the active management or control of any business Section 7, Article IX-B is meant to lay down the general rule applicable to
which in any way may be affected by the functions of his office; all elective and appointive public officials and employees, while Section 13,
and Article VII is meant to be the exception applicable only to the President,
the Vice-President, Members of the Cabinet, their deputies and assistants.
(d) Being financially interested, directly or indirectly, in any
contract with, or in any franchise or privilege granted by the xxxx
Government, any of its subdivisions, agencies or instrumentalities,
including government-owned or – controlled corporations or their Since the evident purpose of the framers of the 1987 Constitution is to
subsidiaries.32 impose a stricter prohibition on the President, Vice-President, members of
the Cabinet, their deputies and assistants with respect to holding multiple
The issue herein involves the first disqualification abovementioned, which offices or employment in the government during their tenure, the
is the disqualification from holding any other office or employment during exception to this prohibition must be read with equal severity. On its face,
Duque’s tenure as Chairman of the CSC. The Court finds it imperative to the language of Section 13, Article VII is prohibitory so that it must be
interpret this disqualification in relation to Section 7, paragraph (2), Article understood as intended to bea positive and unequivocal negation of the
IX-B of the Constitution and the Court’s pronouncement in Civil Liberties privilege of holding multiple government offices or employment. Verily,
Union v. Executive Secretary. wherever the language used in the constitution is prohibitory, it is to be
understood as intended to be a positive and unequivocal negation. The
Section 7, paragraph (2),Article IX-B reads: phrase "unless otherwise provided in this Constitution" must be given a
literal interpretation to refer only to those particular instances cited in the
Constitution itself, to wit: the Vice-President being appointed as a member The ex officio position being actually and in legal contemplation part of the
of the Cabinet under Section 3, par. (2),Article VII; or acting as President in principal office, it follows that the official concerned has no right to receive
those instances provided under Section 7, pars. (2) and (3), Article VII; and, additional compensation for his services in the said position. The reason is
the Secretary of Justice being ex-officio member of the Judicial and Bar that these services are already paid for and covered by the compensation
Council by virtue of Section 8 (1), Article VIII.34 attached to his principal office. x x x35
Being an appointive public official who does not occupy a Cabinet position Section 3, Article IX-B of the 1987 Constitution describes the CSC as the
(i.e., President, the Vice-President, Members of the Cabinet, their deputies central personnel agency of the government and is principally mandated to
and assistants), Duque was thus covered by the general rule enunciated establish a career service and adopt measures to promote morale,
under Section 7, paragraph (2), Article IX-B. He can hold any other office or efficiency, integrity, responsiveness, progressiveness, and courtesy in the
employment in the Government during his tenure if such holding is civil service; to strengthen the merit and rewards system; to integrate all
allowed by law or by the primary functions of his position. human resources development programs for all levels and ranks; and to
institutionalize a management climate conducive to public accountability.
Respondents insist that Duque’s ex officio designation as member of the Its specific powers and functions are as follows:
governing Boards of the GSIS, PHILHEALTH, ECC and HDMF is allowed by
the primary functions of his position as the CSC Chairman. To support this (1) Administer and enforce the constitutional and statutory
claim, they cite Section 14, Chapter 3, Title I-A, Book V of EO 292, to wit: provisions on the merit system for all levels and ranks in the Civil
Service;
Section 14. Membership of the Chairman in Boards.—The Chairman shall
be a member of the Board of Directors or of other governing bodies of (2) Prescribe, amend and enforce rules and regulations for
government entities whose functions affect the career development, carrying into effect the provisions of the Civil Service Law and
employment status, rights, privileges, and welfare of government officials other pertinent laws;
and employees, such as the Government Service Insurance System, Foreign
Service Board, Foreign Trade Service Board, National Board for Teachers, (3) Promulgate policies, standards and guidelines for the Civil
and such other similar boards as may be created by law. Service and adopt plans and programs to promote economical,
efficient and effective personnel administration in the
As to the meaning of ex officio, the Court has decreed in Civil Liberties government;
Union v. Executive Secretary that –
(4) Formulate policies and regulations for the administration,
x x x x The term ex officiomeans "from office; by virtue of office." It refers maintenance and implementation of position classification and
to an "authority derived from official character merely, not expressly compensation and set standards for the establishment, allocation
conferred upon the individual character, but rather annexed to the official and reallocation of pay scales, classes and positions;
position." Ex officio likewise denotes an "act done in an official character,
or as a consequence of office, and without any other appointment or (5) Render opinion and rulings on all personnel and other Civil
authority other than that conferred by the office." An ex officio member of Service matters which shall be binding on all heads of
a board is one who is a member by virtue of his title to a certain office, and departments, offices and agencies and which may be brought to
without further warrant or appointment. x x x the Supreme Court on certiorari;
xxxx
(6) Appoint and discipline its officials and employees in (13) Advise the President on all matters involving personnel
accordance with law and exercise control and supervision over management in the government service and submit to the
the activities of the Commission; President an annual report on the personnel programs;
(7) Control, supervise and coordinate Civil Service examinations. (14) Take appropriate action on all appointments and other
Any entity or official in government may be called upon by the personnel matters in the Civil Service including extension of
Commission to assist in the preparation and conduct of said Service beyond retirement age;
examinations including security, use of buildings and facilities as
well as personnel and (15) Inspect and audit the personnel actions and programs of the
departments, agencies, bureaus, offices, local government units
transportation of examination materials which shall be exempt and other instrumentalities of the government including
from inspection regulations; government-owned or controlled corporations; conduct periodic
review of the decisions and actions of offices or officials to whom
(8) Prescribe all forms for Civil Service examinations, authority has been delegated by the Commission as well as the
appointments, reports and such other forms as may be required conduct of the officials and the employees in these offices and
by law, rules and regulations; apply appropriate sanctions when necessary;
(9) Declare positions in the Civil Service as may properly be (16) Delegate authority for the performance of any functions to
primarily confidential, highly technical or policy determining; departments, agencies and offices where such functions may be
effectively performed;
(10) Formulate, administer and evaluate programs relative to the
development and retention of qualified and competent work (17) Administer the retirement program for government officials
force in the public service; and employees, and accredit government services and evaluate
qualifications for retirement;
(11) Hear and decide administrative cases instituted by or brought
before it directly or on appeal, including contested appointments, (18) Keep and maintain personnel records of all officials and
and review decisions and actions of its offices and of the agencies employees in the Civil Service; and
attached to it. Officials and employees who fail to comply with
such decisions, orders, or rulings shall be liable for contempt of (19) Perform all functions properly belonging to a central
the Commission. Its decisions, orders, or rulings shall be final and personnel agency and such other functions as may be provided by
executory. Such decisions, orders, or rulings may be brought to law.36
the Supreme Court on certiorari by the aggrieved party within
thirty (30) daysfrom receipt of a copy thereof; On the other hand, enumerated below are the specific duties and
responsibilities of the CSC Chairman, namely:
(12) Issue subpoena and subpoena duces tecum for the
production of documents and records pertinent to investigation (1) Direct all operations of the Commission;
and inquiries conducted by it in accordance withits authority
conferred by the Constitution and pertinent laws; (2) Establish procedures for the effective operations of the
Commission;
(3) Transmit to the President rules and regulations, and other SECTION 41. Powers and Functions of the GSIS. — The GSIS shall exercise
guidelines adopted by the Chairman which require Presidential the following powers and functions:
attention including annual and other periodic reports;
(a) to formulate, adopt, amend and/or rescind such rules and
(4) Issue appointments to, and enforce decisions on regulations as may be necessary to carry out the provisions and
administrative discipline involving officials and employees of the purposes of this Act, as well as the effective exercise of the
Commission; powers and functions, and the discharge of duties and
responsibilities of the GSIS, its officers and employees;
(5) Delegate authority for the performance of any function to
officials and employees of the Commission; (b) to adopt or approve the annual and supplemental budget of
receipts and expenditures including salaries and allowances of the
(6) Approve and submit the annual and supplemental budget of GSIS personnel; to authorize such capital and operating
the Commission; and expenditures and disbursements of the GSIS as may be necessary
and proper for the effective management and operation of the
(7) Perform such other functionsas may be provided by law. 37 GSIS;
Section 14, Chapter 3, Title I-A, Book V of EO 292 is clear that the CSC (c) to invest the funds of the GSIS, directly or indirectly, in
Chairman’s membership in a governing body is dependent on the condition accordance with the provisions of this Act;
that the functions of the government entity where he will sit as its Board
member must affect the career development, employment status, rights, (d) to acquire, utilize or dispose of, in any manner recognized by
privileges, and welfare of government officials and employees. Based on law, real or personal property in the Philippines or elsewhere
this, the Court finds no irregularity in Section 14, Chapter 3, Title I-A, Book necessary to carry out the purposes of this Act;
V of EO 292 because matters affecting the career development, rights and
welfare of government employees are among the primary functions of the (e) to conduct continuing actuarialand statistical studies and
CSC and are consequently exercised through its Chairman. The CSC valuations to determine the financial condition of the GSIS and
Chairman’s membership therein must, therefore, be considered to be taking into consideration such studies and valuations and the
derived from his position as such. Accordingly, the constitutionality of limitations herein provided, re-adjust the benefits, contributions,
Section 14, Chapter 3, Title I-A, Book V of EO 292 is upheld. premium rates, interest rates or the allocation or re-allocation of
the funds to the contingencies covered;
However, there is a need to determine further whether Duque’s
designation as Board member of the GSIS, PHILHEALTH, ECC and HDMF is (f) to have the power of succession;
in accordance with the 1987 Constitution and the condition laid down in
Section 14, Chapter 3, Title I-A, Book V of EO 292. It is necessary for this (g) to sue and be sued;
purpose to examine the functions of these government entities under their
respective charters, to wit: (h) to enter into, make, perform and carry out contracts of every
kind and description with any person, firm or association or
The GSIS Charter, Republic Act No. 8291 corporation, domestic or foreign;
(i) to carry on any other lawful business whatsoever in pursuance (p) to enter into agreement with the Social Security System or any
of, or in connection with the provisions of this Act; other entity, enterprise, corporation or partnership for the benefit
of members transferring from one system to another subject to
(j) to have one or more offices in and outside of the Philippines, the provision of Republic Act No. 7699, otherwise known as the
and to conduct its business and exercise its powers throughout Portability Law;
and in any part of the Republic of the Philippines and/or in any or
all foreign countries, states and territories: Provided, That the (q) to be able to float proper instrument to liquefy long-term
GSIS shall maintain a branch office in every province where there maturity by pooling funds for short-term secondary market;
exists a minimum of fifteen thousand (15,000) membership; (k) to
borrow funds from any source, private or government, foreign or (r) to submit annually, not later thanJune 30, a publicreport to the
domestic, only as an incident in the securitization of housing President of the Philippines and the Congress of the Philippines
mortgages of the GSIS and on account of its receivables from any regarding its activities in the administration and enforcement of
government or private entity; this Act during the preceding year including information and
recommendations on broad policies for the development and
(l) to invest, own or otherwise participate in equity in any perfection of the programs of the GSIS;
establishment, firm or entity;
(s) to maintain a provident fund, which consists of contributions
(m) to approve appointments in the GSIS except appointments to made by both the GSIS and its officials and employees and their
positions which are policy determining, primarily confidential or earnings, for the payment of benefits to such officials and
highly technical in nature according to the Civil Service rules and employees or their heirs under such terms and conditions as it
regulations: Provided, That all positions in the GSIS shall be may prescribe;
governed by a compensation and position classification system
and qualifications standards approved bythe GSIS Board of (t) to approve and adopt guidelines affecting investments,
Trustees based on a comprehensive job analysis and audit of insurance coverage of government properties, settlement of
actual duties and responsibilities: Provided, further, That the claims, disposition of acquired assets, privatization or expansion
compensation plan shall be comparable with the prevailing of subsidiaries, development of housing projects, increased
compensation plans in the private sector and shall be subject to benefit and loan packages to members, and the enforcement of
the periodic review by the Board no more than once every four (4) the provisions of this Act;
years without prejudice to yearly merit reviews or increases based
on productivity and profitability; (u) any provision of law to the contrary notwithstanding, to
authorize the payment of extra remuneration to the officials and
(n) to design and adopt an Early Retirement Incentive Plan (ERIP) employees directly involved in the collection and/or remittance of
and/or financial assistance for the purpose of retirement for its contributions, loan repayments, and other monies due to the GSIS
own personnel; at such rates and under such conditions as itmay adopt. Provided,
That the best interest of the GSIS shall be observed thereby;
(o) to fix and periodically review and adjust the rates of interest
and other terms and conditions for loans and credits extended to (v) to determine, fix and impose interest upon unpaid premiums
members or other persons, whether natural or juridical; due from employers and employees;
(w) to ensure the collection or recovery of all indebtedness, member satisfaction, and overall accomplishment of Program
liabilities and/or accountabilities, includingunpaid premiums or objectives;
contributions in favor of the GSISarising from any cause or source
whatsoever, due from all obligors, whether public or private. The (d) to formulate and implement guidelines on contributions and
Board shall demand payment or settlement of the obligations benefits; portability of benefits, cost containment and quality
referred to herein within thirty (30) days from the date the assurance; and health care provider arrangements,payment,
obligation becomes due, and in the event of failure or refusal of methods, and referral systems;
the obligor or debtor to comply with the demand, to initiate or
institute the necessary or proper actions or suits, criminal, civil or (e) to establish branch offices as mandated in Article V of this Act;
administrative or otherwise, before the courts, tribunals,
commissions, boards, or bodies of proper jurisdiction within thirty
(f) to receive and manage grants, donations, and other forms of
(30) days reckoned from the expiry dateof the period fixed in the
assistance;
demand within which to pay or settle the account;
(g) to sue and be sued in court;
(x) to design and implement programs that will promote and
mobilize savings and provide additional resources for social
(h) to acquire property, real and personal, which may be
security expansion and at the same time afford individual
necessary or expedient for the attainment of the purposes of this
members appropriate returns on their savings/investments. The
Act;
programs shall be so designed as to spur socio-economic take-off
and maintain continued growth; and
(i) to collect, deposit, invest, administer, and disburse the National
Health Insurance Fund in accordance with the provisions of this
(y) to exercise such powers and perform such other acts as may
Act;
be necessary, useful, incidental or auxiliary to carry out the
provisions of this Act, or to attain the purposesand objectives of
this Act. (j) to negotiate and enter into contracts with health care
institutions, professionals, and other persons, juridical or natural,
regarding the pricing, payment mechanisms, design and
The PHILHEALTH Charter, Republic Act No. 7875
implementation of administrative and operating systems and
procedures, financing, and delivery of health services;
SEC. 16. Powers and Functions – The Corporation shall have the following
powers and functions:
(k) to authorize Local Health Insurance Offices to negotiate and
enter into contracts in the name and on behalf of the Corporation
(a) to administer the National Health Insurance Program;
with any accredited government or private sector health provider
organization, including but not limited to health maintenance
(b) to formulate and promulgate policies for the sound organizations, cooperatives and medical foundations, for the
administration of the Program; provision ofat least the minimum package of personal health
services prescribed by the Corporation;
(c) to set standards, rules, and regulations necessary to ensure
quality of care, appropriate utilization of services, fund viability,
(l) to determine requirements and issue guidelines for the powers and functions, and the discharge of duties and
accreditation of health care providers for the Program in responsibilities of the Fund, its officers and employees;
accordance with this Act;
(b) To adopt or approve the annual and supplemental budget of
(m) to supervise the provision of health benefits with the power receipts and expenditures including salaries and allowances of the
to inspect medical and financial records of health careproviders Fund personnel, to authorize such capital and operating
and patients who are participants in or members of the Program, expenditures and disbursements of the Fund as may be necessary
and the power to enter and inspect accredited health care and proper for the effective management and operation of the
institutions, subject to the rules and regulations to be Fund;
promulgated by the Corporation;
(c) To submit annually to the President of the Philippines not later
(n) to organize its office, fix the compensation of and appoint than March 15, a report of its activities and the state of the Fund
personnel as may be deemed necessary and upon the during the preceding year, including information and
recommendation of the president of the Corporation; recommendations for the development and improvement
thereof;
(o) to submit to the President of the Philippines and to both
Houses of Congress its Annual Report which shall contain the (d) To invest not less than seventy percent (70%) of its investible
status of the National Health Insurance Fund, its total funds to housing, in accordance with this Act;
disbursements, reserves, average costing to beneficiaries, any
request for additional appropriation, and other data pertinent to (e) To acquire, utilize, or dispose of, in any manner recognized by
the implementation of the Program and publish a synopsis of such law, real or personal properties to carry out the purposes of this
report in two (2) newspapers of general circulation; Act;
(p) to keep records of the operations of the Corporation and (f) To set up its own accounting and computer systems; to
investments of the National Health Insurance Fund; and conduct continuing actuarial and statistical studies and valuations
to determine the financial viability of the Fund and its project; to
(q) to perform such other acts as it may deem appropriate for the require reports, compilations and analysis of statistical and
attainment of the objectives of the Corporation and for the proper economic data, as well as make such other studies and surveys
enforcement of the provisions of this Act asmay be needed for the proper administration and development
of the Fund;
The HDMF Charter, Republic Act No. 9679
(g) To have the power of succession; to sue and be sued; to adopt
SEC. 13. Powers and Functions of the Fund.– The Fund shall have the and use a corporate seal;
powers and functions specified in this Act and the usual corporate powers:
(h) To enter into and carry out contracts of every kind and
(a) To formulate, adopt, amend and/or rescind such rules and description with any person, firm or association or corporation,
regulations as may be necessary to carry out the provisions and domestic or foreign;
purposes of this Act, as well as the effective exercise of the
(i) To borrow funds from any source, private or government, (p) To determine, fix and impose interest and penalties upon
foreign or domestic; unpaid contributions due from employers and employees;
(j) To invest, own or otherwise participate in equity in any (q) To ensure the collection and recovery of all indebtedness,
establishment, or entity; to form, organize, invest in or establish liabilities and/or accountabilities, including unpaid contributions
and maintain a subsidiary or subsidiaries in relation to any of its in favor of the Fund arising from any cause or source or
purposes; whatsoever, due from all obligors, whether public or private; to
demand payment of the obligations referred to herein, and in the
(k) To approve appointments in the Fund except appointments to event of failure or refusal of the obligor or debtor to comply with
positions which are policy determining, primarily confidential or the demand, to initiate or institute the necessary or proper
highly technical in nature according to the civil service rules and actions or suits, criminal, civil, administrative, or otherwise,
regulations: Provided, That all positions in the Fund shall be before the courts, tribunals, commissions, boards or bodies of
governed by a compensation and position classification system proper jurisdiction: Provided, however, That the Fund may
and qualification standards approved by the Fund's Board of compromise or release, in whole or in part, any interest, penalty
Trustees based on a comprehensive job analysis, wage or civil liability to the Fund in connection with the collection of
compensation study and audit of actual duties and contributions and the lending operations of the Fund, under such
responsibilities: Provided, further, That the compensation plan terms and conditions as prescribed by the Board of Trustees:
shall be comparable with prevailing compensation plans in the Provided, further, That the Board may, upon recommendation of
private sector and shall be subject to the periodic review of the the Chief Executive Officer, deputize any member of the Fund's
Board no more than once everyfour (4) years without prejudice to legal staff to act as special sheriff in foreclosure cases, in the sale
yearly merit reviews or increases based on productivity and or attachment of the debtor's properties, and in the enforcement
profitability. The Fund shall, therefore, be exempt from any laws, ofcourt writs and processes in cases involving the Fund. The
rules and regulations on salaries and compensations; special sheriff of the Fund shall make a report to the proper court
after any action taken by him, which shall treat such action as if it
(l) To maintain a provident fund, which shall consist of were an act of its own sheriffs in all respects;
contributions made by both the Fund and its officers and
employees and their earnings, for the payment ofbenefits to such (r) To design and implement other programs that will further
officials and employees or their heirs under such terms and promote and mobilize savings and provide additional resources
conditions as it may prescribe; for the mutual benefit of the members with appropriate returns
on the savings/investments. The program shall be so designed as
(m)To design and adopt an early retirement incentive plan (ERIP) to spur socioeconomic take-off and maintain continued growth;
for its own personnel;
(s) To conduct continuing actuarialand statistical studies and
(n) To establish field offices and to conduct its business and valuations to determine the financial condition of the Fund and
exercise its powers in these places; (o) To approve restructuring taking into consideration such studies and valuations and the
proposalfor the payment of due but unremitted contributions and limitations herein provided, readjust the benefits, contributions,
unpaid loan amortizations under such terms and conditions as the interest rates of the allocation or reallocation of the funds to the
Board ofTrustees may prescribe; contingencies covered; and
(t) To exercise such powers and perform such acts as may be (f) To appoint the personnel of its staff, subject to civil service law
necessary, useful, incidental or auxiliary to carry out the and rules, but exempt from WAPCO law and regulations;
provisions of this Act.
(g) To adopt annually a budget of expenditures of the Commission
The ECC Charter, Presidential Decree No. 626 and its staff chargeable against the State Insurance Fund:
Provided, that the SSS and GSIS shall advance on a quarterly basis
ART. 177. Powers and duties. - The Commission shall have the following the remittances of allotment of the loading fund for this
powers and duties: Commission's operational expenses based on its annual budget as
duly approved by the Ministry of Budget and Management. (As
(a) To assess and fix a rate of contribution from all employers; amended by Sec. 3, P.D. 1921).
(b) To determine the rate of contribution payable by an employer (h) To have the power to administeroath and affirmation, and to
whose records show a high frequency of work accidents or issue subpoena and subpoena duces tecum in connection with
occupational disease due to failure by the said employer to any question or issue arising from appealed cases under this Title.
observe adequate safety measures;
(i) To sue and be sued in court;
(c) To approve rules and regulations governing the processing of
claims and the settlement of disputes arising therefrom as (j) To acquire property, real or personal, which may be necessary
prescribed by the System; or expedient for the attainment of the purposes of this Title;
(d) To initiate policies and programs toward adequate (k) To enter into agreements or contracts for such services or aid
occupational health and safety and accident prevention in the as may be needed for the proper, efficient and stable
working environment, rehabilitation other than those provided administration of the program;
for under Art. 190 hereof, and other related programs and
activities, and to appropriate funds therefor. (As amended by Sec. (l) To perform such other acts as it may deem appropriate for the
3, P.D. 1368). attainment of the purposes of the Commission and proper
enforcement of the provisions of thisTitle. (As amended by Sec.
(e) To make the necessary actuarial studies and calculations 18, P.D.850). (Emphasis supplied.)
concerning the grant of constant help and income benefits for
permanent disability or death, and the rationalization of the The GSIS, PHILHEALTH, ECC and HDMF are vested by their respective
benefits for permanent disability and death under the Title with charters with various powers and functions to carry out the purposes for
benefits payable by the System for similar contingencies; which they were created. While powers and functions associated with
Provided; That the Commission may upgrade benefits and add appointments, compensation and benefits affect the career development,
new ones subject toapproval of the President; and Provided, employment status, rights, privileges, and welfare of government officials
Further, That the actuarial stabilityof the State Insurance Fund and employees, the GSIS, PHILHEALTH, ECC and HDMF are also tasked to
shall be guaranteed; Provided, Finally, that such increases in perform other corporate powers and functions that are not personnel-
benefits shall not require any increases in contribution, except as related. All of these powers and functions, whether personnel-related or
provided for in paragraph (b) hereof. (As amended by Sec. 3, P.D. not, are carried out and exercised by the respective Boards of the GSIS,
1641). PHILHEALTH, ECC and HDMF. Hence, when the CSC Chairman sits as a
member of the governing Boards of the GSIS, PHILHEALTH, ECC and HDMF, President "shall have control of all executive . . . offices," x x x Section 17,
he may exercise these powers and functions, which are not anymore Article VII of the 1987 Constitution does not exempt any executive office —
derived from his position as CSC Chairman, such as imposing intereston oneperforming executive functions outside of the independent
unpaid or unremitted contributions,38 issuing guidelines for the constitutional bodies — from the President’s power of control. There is no
accreditation of health care providers,39 or approving restructuring dispute that the CCP performs executive, and not legislative, judicial, or
proposals in the payment of unpaid loan amortizations. 40 The Court also quasi-judicial functions.
notes that Duque’s designation as member of the governing Boards of the
GSIS, PHILHEALTH, ECC and HDMF entitles him to receive per diem, 41 a The President’s power of control applies to the acts or decisions of all
form of additional compensation that is disallowed by the concept of an ex officers in the Executive branch. This is true whether such officers are
officioposition by virtue of its clear contravention of the proscription set by appointed by the President or by heads of departments, agencies,
Section 2, Article IX-A of the 1987 Constitution. This situation goes against commissions, or boards. The power of control means the power to revise
the principle behind an ex officio position, and must, therefore, be held or reverse the acts or decisions of a subordinate officer involving the
unconstitutional. exercise of discretion.
Apart from violating the prohibition against holding multiple offices, In short, the President sits at the apex of the Executive branch, and
Duque’s designation as member of the governing Boards of the GSIS, exercises "control of all the executive departments, bureaus, and offices."
PHILHEALTH, ECC and HDMF impairs the independence of the CSC. Under There can be no instance under the Constitution where an officer of the
Section 17,42 Article VII of the Constitution, the President exercises control Executive branch is outside the control of the President. The Executive
over all government offices in the Executive Branch. An office that is legally branch is unitary since there is only one President vested with executive
not under the control of the President is not part of the Executive power exercising control over the entire Executive branch. Any office in the
Branch.43 The Court has aptly explained in Rufino v. Endriga: 44 Executive branch that is not under the control of the President is a lost
command whose existence is withoutany legal or constitutional basis.
Every government office, entity, or agency must fall under the Executive, (Emphasis supplied)
Legislative, or Judicial branches, or must belong to one of the independent
constitutional bodies, ormust be a quasi-judicial body or local government As provided in their respective charters, PHILHEALTH and ECC have the
unit. Otherwise, such government office, entity, or agency has no legal and status of a government corporation and are deemed attached to the
constitutional basis for its existence. Department of Health45 and the Department of Labor,46 respectively. On
the other hand, the GSIS and HDMF fall under the Office of the
The CCP does not fall under the Legislative or Judicial branches of President.47 The corporate powers of the GSIS, PHILHEALTH, ECC and
government.1âwphi1 The CCP is also not one of the independent HDMF are exercised through their governing Boards, members of which
constitutional bodies. Neither is the CCP a quasi-judicial body nor a local are all appointed by the President of the Philippines. Undoubtedly, the
government unit. Thus, the CCP must fall underthe Executive branch. GSIS, PHILHEALTH, ECC and HDMF and the members of their respective
Under the Revised Administrative Code of 1987, any agency "not placed by governing Boards are under the control of the President. As such, the CSC
law or order creating them under any specific department" falls "under the Chairman cannot be a member of a government entity that is under the
Office of the President." control of the President without impairing the independence vested in the
CSC by the 1987 Constitution.
Since the President exercises control over "all the executive departments,
bureaus, and offices," the President necessarily exercises control over the 3.
CCP which is an office in the Executive branch. In mandating that the
Effect of declaration of unconstitutionality for all purposes as those of a de jure officer, in so far as the public or third
of Duque’s designation as member of the persons who are interested therein are concerned.52
governing Boards of theGSIS, PHILHEALTH,
ECC and HDMF - The De FactoOfficer Doctrine In order to be clear, therefore, the Court holds that all official actions of
Duque as a Director or Trustee of the GSIS, PHILHEAL TH, ECC and HDMF,
In view of the application of the prohibition under Section 2, Article IX-A of were presumed valid, binding and effective as if he was the officer legally
the 1987 Constitution, Duque did not validly hold office as Director or appointed and qualified for the office.53 This clarification is necessary in
Trustee of the GSIS, PHILHEALTH, ECC and HDMF concurrently with his order to protect the sanctity and integrity of the dealings by the public
position of CSC Chairman. Accordingly, he was not to be considered as a de with persons whose ostensible authority emanates from the State. Duque's
jure officer while he served his term as Director or Trustee of these GOCCs. official actions covered by this clarification extend but are not limited to
A de jure officer is one who is deemed, in all respects, legally appointed the issuance of Board resolutions and memoranda approving
and qualified and whose term of office has not expired. 48 appointments to positions in the concerned GOCCs, promulgation of
policies and guidelines on compensation and employee benefits, and
That notwithstanding, Duque was a de facto officer during his tenure as a adoption of programs to carry out the corporate powers of the GSIS,
Director or Trustee of the GSIS, PHILHEALTH, ECC and HDMF. In Civil PHILHEAL TH, ECC and HDMF.
Liberties Union v. Executive Secretary, 49 the Court has said:
WHEREFORE, the petition is PARTIALLY GRANTED. The Court UPHOLDS THE
During their tenure in the questioned positions, respondents may be CONSTITUTIONALITY of Section 14, Chapter 3, Title I-A, Book V of Executive
considered de facto officers and as such entitled to emoluments for actual Order No. 292; ANNULS AND VOIDS Executive Order No. 864 dated
services rendered. Ithas been held that "in cases where there is no de jure, February 22, 2010 and the designation of Hon. Francisco T. Duque III as a
officer, a de facto officer, who, in good faith has had possession of the Member of the Board of Directors/Trustees of the Government Service
office and has discharged the duties pertaining thereto, is legally entitled Insurance System; Philippine Health Insurance Corporation; Employees
to the emoluments of the office, and may in an appropriate action recover Compensation Commission; and Home Development Mutual Fund in an ex
the salary, fees and other compensations attached to the office. This officio capacity in relation to his appointment as Chairman of the Civil
doctrine is, undoubtedly, supported on equitable grounds since it seems Service Commission for being UNCONSTITUTIONAL AND VIOLATIVE of
unjust that the public should benefit by the services of an officer de facto Sections 1 and 2, Article IX-A of the 1987 Constitution; and DECLARES that
and then be freed from all liability to pay any one for such services. Any Hon. Francisco T. Duque III was a de facto officer during his tenure as
per diem, allowances or other emoluments received by the respondents by Director/Trustee of the Government Service Insurance System; Philippine
virtue of actual services rendered in the questioned positions may Health Insurance Corporation; Employees Compensation Commission; and
therefore be retained by them. Home Development Mutual Fund.
A de facto officer is one who derives his appointment from one having No pronouncement on costs of suit.
colorable authority to appoint, ifthe office is an appointive office, and
whose appointment is valid on its face.50 He may also be one who is in SO ORDERED.
possession of an office, and is discharging its duties under color of
authority, by which is meant authority derived from an appointment, Republic of the Philippines
however irregular or informal, so that the incumbent is not a mere SUPREME COURT
volunteer.51 Consequently, the acts of the de facto officer are just as valid Manila
EN BANC xxxx
G.R. No. 192249 April 2, 2013 2. The results of elections in the said municipalities will affect the
elections not only in the provincial level (Congressman, Vice-
SALIC DUMARPA, Petitioner, Governor and Sangguniang Panlalawigan) but also in the
vs. municipal level.
COMMISSION ON ELECTIONS, Respondent.
3. There are missing ballots in the following precincts more
DECISION particularly in:
PEREZ, J.: a. Brgy. Picotaan, Lumbatan with 682 registered voters.
Challenged in this petition for prohibition and mandamus with prayer for b. Brgy. Pagalamatan, Tugaya with 397 registered voters.
issuance of temporary restraining order and/or writ of preliminary
injunction under Rule 64, in relation to Rule 65, of the Rules of Court is 4. Based on reports some of the BEIs are not willing to serve or
Resolution No. 89651 issued by respondent Commission on Elections are disqualified due to relationship;
(COMELEC) en bane and entitled Guidelines and Procedures in the Conduct
of Special Elections in Some Areas Where There are Failure of Elections 5. The Precinct Count Optical Scan (PCOS) assigned in the said
during the Conduct of the 10 May 2010 National Elections. Petitioner Salic municipalities were already pulled out by Smartmatic;
Dumarpa (Dumarpa) seeks to annul or declare illegal Sections 4 2 and 123 of
COMELEC Resolution No. 8965 for having been issued with grave abuse of 6. There is a need for the newly constituted BEIs to undergo
discretion. training and certification as required under R.A. 9369.
Dumarpa was a congressional candidate for the 1st District of Lanao del 7. There is a need to review the manning of Comelec personnel in
Sur at the 10 May 2010 elections. The COMELEC declared a total failure of the municipal level and assess their capabilities to discharge their
elections in seven (7) municipalities, including the three (3) Municipalities duties and functions not only as an Election Officer but also as
of Masiu, Lumba Bayabao and Kapai, which are situated in the 1st Chairman of the Board of Canvassers.
Congressional District of Province of Lanao del Sur. The conduct of special
elections in the seven (7) Lanao del Sur municipalities was originally
xxxx
scheduled for 29 May 2010.
Considering the foregoing, the Commission RESOLVED, as it hereby
On 25 May 2010, COMELEC issued Resolution No. 8946, 4 resetting the
RESOLVES as follows:
special elections to 3 June 2010 for the following reasons:
1. to reset the special elections scheduled on 29 May 2010
xxxx
pursuant to the Commission En Banc Resolution promulgated May
21, 2010 in the following areas:
1. Aside from the reported seven (7) municipalities where there
are total failure of elections, there are precincts in eight (8) other
xxxx
municipalities where there were failure of elections, namely:
and to reschedule the same on June 3, 2010; We did not issue a temporary restraining order or a writ of preliminary
injunction. Thus, the special elections on 3 June 2010 proceeded as
2. to prepare the logistical, manpower and security requirements scheduled.
in connection with the conduct of said special elections;
Petitioner is adamant that:
3. to direct the Regional Election Director and the Provincial
Election Supervisor to notify the candidates/interested parties 1. x x x SECTION 12 OF COMELEC RESOLUTION NO. 8965 x x x IS
thereat; and ILLEGAL OR VOID, BEING CONTRARY TO LAW, AND ARE ISSUED OR
EMBODIED IN SAID RESOLUTION WITHOUT NOTICE TO
4. to hear the petitions/report/s on the failure of elections on the CANDIDATES AND STAKEHOLDERS AND WITHOUT HEARING;
eight (8) other municipalities in Lanao del Sur, to wit:
2. x x x SECTION 4 OF COMELEC RESOLUTION NO. 8965 x x x IS
xxxx ILLEGAL OR VOID, BEING CONTRARY TO LAW, AND ARE ISSUED OR
EMBODIED IN SAID RESOLUTION WITHOUT NOTICE TO
Let the Executive Director implement this resolution and the Education and CANDIDATES AND STAKEHOLDERS AND WITHOUT HEARING;
Information Department publish this resolution in two (2) newspapers of
general circulation.5 3. PUBLIC RESPONDENT, THE HONORABLE COMMISSION ON
ELECTIONS, ACTED WITH GRAVE ABUSE OF DISCRETION
Subsequently, COMELEC issued the herein assailed resolution which AMOUNTING TO LACK OR EXCESS OF JURISDICTION, IN
provided, among others, the constitution of Special Board of Election INCORPORATING, PROVIDING, OR ISSUING SECTION 12 AND
Inspectors (SBEI) in Section 4 and Clustering of Precincts in Section 12. SECTION 4 IN SAID RESOLUTION NO. 8965.7
On the same date COMELEC Resolution No. 8965 was issued, on 28 May The Office of the Solicitor General (OSG), however, in its sparse Comment
2010, Dumarpa filed a Motion for Reconsideration concerning only counters that the issues have been mooted by the holding of the special
Sections 4 and 12 thereof as it may apply to the Municipality of Masiu, elections as scheduled on 3 June 2010. As a catch-all refutation, the OSG
Lanao del Sur. The COMELEC did not act on Dumarpa’s motion. maintains that COMELEC Resolution No. 8965 is not tainted with grave
abuse of discretion.
A day before the scheduled special elections, on 2 June 2010, Dumarpa
filed the instant petition alleging that "both provisions on Re-clustering of We dismiss the petition.
Precincts (Section 12) and constitution of SBEIs [Special Board of Election
Inspectors] (Section 4) affect the Muncipality of Masiu, Lanao del Sur, and Indeed, the special elections held on 3 June 2010 mooted the issues posed
will definitely doom petitioner to certain defeat, if its implementation is by Dumarpa. The opponent of Dumarpa, Hussin Pangandaman, was
not restrained or prohibited by the Honorable Supreme Court." proclaimed winner in the 1st Congressional District of Lanao del Sur. We
see this as a supervening event which, additionally, mooted the present
Parenthetically, at the time of the filing of this petition, Dumarpa was petition as the issues raised herein are resolvable in the election protest. 8
leading by a slim margin over his opponent Hussin Pangandaman in the
canvassed votes for the areas which are part of the 1st Congressional A moot and academic case is one that ceases to present a justiciable
District of Lanao del Sur where there was no failure of elections. 6 controversy by virtue of supervening events, so that a declaration thereon
would be of no practical value. As a rule, courts decline jurisdiction over must do everything in its power to secure a fair and honest canvass of the
such case, or dismiss it on ground of mootness.9 votes cast in the elections. In the performance of its duties, the
Commission must be given a considerable latitude in adopting means and
In any event, the petition is unmeritorious. methods that will insure the accomplishment of the great objective for
which it was created - to promote free, orderly, and honest elections. The
COMELEC issued Resolution No. 8965, in the exercise of its plenary powers choice of means taken by the Commission on Elections, unless they are
in the conduct of elections enshrined in the Constitution 10 and statute.11 clearly illegal or constitute grave abuse of discretion, should not be
interfered with16 citation omitted. (Emphasis supplied).
Thus, it brooks no argument that the COMELEC’s broad power to "enforce
and administer all laws and regulations relative to the conduct of an Viewed against the foregoing spectrum of the COMELEC’s plenary powers
election, plebiscite, initiative, referendum and recall," 12 carries with it all and the raison d’ etre for the statutes on the conduct of elections, we
necessary and incidental powers for it to achieve the objective of holding dismiss Dumarpa’s objections about Sections 4 and 12 of COMELEC
free, orderly, honest, peaceful and credible elections. 13 Resolution No. 8965.
As stated in Sumulong v. COMELEC: Dumarpa objects to the re-clustering of precincts, only for the Municipality
of Masiu, because it was undertaken: (1) without notice and hearing to the
candidates affected; (2) in less than thirty days before the conduct of the
Politics is a practical matter, and political questions must be dealt with
special elections; and (3) the polling place was reduced from 21 to only 3
realistically - not from the standpoint of pure theory. The Commission on
voting centers which Dumarpa’s opponent, Representative Hussin
Elections, because of its fact-finding facilities, its contacts with political
Pangandaman, controls. As regards the designation of SBEIs, Dumarpa
strategists, and its knowledge derived from actual experience in dealing
points out that "public school teachers who are members of the board of
with political controversies, is in a peculiarly advantageous position to
election inspectors shall not be relieved nor disqualified from acting as
decide complex political questions.
such members, except for cause and after due hearing." 17
xxxx
Dumarpa’s objections conveniently fail to take into account that COMELEC
Resolution No. 8965, containing the assailed provisions on re-clustering of
There are no ready-made formulas for solving public problems. Time and the precincts and the designation of special board of election inspectors,
experience are necessary to evolve patterns that will serve the ends of was issued precisely because of the total failure of elections in seven (7)
good government. In the matter of the administration of the laws relative Municipalities18 in the Province of Lanao del Sur, a total of fifteen (15)
to the conduct of elections x x x, we must not by any excessive zeal take Municipalities where there was a failure of elections. Notably, the
away from the Commission on Elections that initiative which by COMELEC’s declaration of a failure of elections is not being questioned by
constitutional and legal mandates properly belongs to it. 14 Dumarpa. In fact, he confines his objections on the re-clustering of
precincts, and only as regards the Municipality of Masiu.1âwphi1
Cauton v. COMELEC15 emphasized the COMELEC’s latitude of authority:
Plainly, it is precisely to prevent another occurrence of a failure of
The purpose of the governing statutes on the conduct of elections is to elections in the fifteen (15) municipalities in the province of Lanao del Sur
protect the integrity of elections to suppress all evils that may violate its that the COMELEC issued the assailed Resolution No. 8965. The COMELEC,
purity and defeat the will of the voters citation omitted. The purity of the through its deputized officials in the field, is in the best position to assess
elections is one of the most fundamental requisites of popular government the actual condition prevailing in that area and to make judgment calls
citation omitted. The Commission on Elections, by constitutional mandate,
based thereon. Too often, COMELEC has to make snap judgments to meet
unforeseen circumstances that threaten to subvert the will of our voters. TERESITA J. LEONARDO-DE
ARTURO D. BRION
In the process, the actions of COMELEC may not be impeccable, indeed, CASTRO
Associate Justice
may even be debatable.1âwphi1 We cannot, however, engage in an Associate Justice
academic criticism of these actions often taken under very difficult
circumstances.19 DIOSDADO M. PERALTA LUCAS P. BERSAMIN
Associate Justice Associate Justice
The COMELEC actually closely followed Section 6 of the Omnibus Election
Code by scheduling the special election not later than thirty (30) days after MARIANO C. DEL CASTILLO ROBERTO A. ABAD
the cessation of the cause of the failure to elect. Moreover, the COMELEC Associate Justice Associate Justice
sought to foreclose the possibility that the Board of Election
MARTIN S. VILLARAMA, JR. JOSE CATRAL MENDOZA
Inspectors may not report to the polling place, as what occurred in the Associate Justice Associate Justice
Municipality of Masiu, resulting in another failure of election.
(On Leave)
BIENVENIDO REYES
Of course the case cannot preempt the decision in the election protest ESTELA PERLAS-BERNABE*
Associate Justice
filed by Dumarpa before the House of Representative Electoral Tribunal, or Associate Justice
our action should the matter reach us on petition for certiorari. 20 Our ruling
herein is confined to the issues raised by Dumarpa relative to COMELEC
Resolution No. 8965. MARVIC MARIO VICTOR F. LEONEN
Associate Justice
WHEREFORE, the petition 1s DISMISSED. Cost against petitioner Salic
Dumarpa. CERTIFICATION
SO ORDERED. Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above decision had been reached in consultation before
JOSE PORTUGAL PEREZ the case was assigned to the writer of the opinion of the Court.
Associate Justice
MARIA LOURDES P. A. SERENO
WE CONCUR: Chief Justice
MARIA LOURDES P. A. SERENO Republic of the Philippines

Chief Justice SUPREME COURT
Manila
ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR. EN BANC

Associate Justice Associate Justice
G.R. No. 182249 March 5, 2013
TRADE AND INVESTMENT DEVELOPMENT CORPORATION OF THE TIDCORP’s Executive Vice President Jane U. Tambanillo appealed 7 the
PHILIPPINES, Petitioner, invalidation of De Guzman’s appointment to Director IV Agnes Padilla of
vs. the CSC-National Capital Region (NCR). According to Tambanillo, Republic
CIVIL SERVICE COMMISSION, Respondent. Act No. (RA) 8494, which amended TIDCORP’s charter, empowers its Board
of Directors to create its own organizational structure and staffing pattern,
DECISION and to approve its own compensation and position classification system
and qualification standards. Specifically, Section 7 of RA 8494 provides:
BRION, J.:
Section 7. The Board of Directors shall provide for an organizational
1
We resolve the petition for review on certiorari of Trade and Investment structure and staffing pattern for officers and employees of the Trade and
Development Corporation of the Philippines (TJDCORP) seeking the Investment Development Corporation of the Philippines (TIDCORP) and
reversal of the decision2 dated September 28, 2007 and the upon recommendation of its President, appoint and fix their remuneration,
resolution3 dated March 17, 2008 of the Court of Appeals (CA) in CA-G.R. emoluments and fringe benefits: Provided, That the Board shall have
SP. No. 81058. The assailed CA rulings affirmed the resolutions, 4 dated exclusive and final authority to appoint, promote, transfer, assign and re-
January 31, 2003 and October 7, 2003, of the Civil Service Commission assign personnel of the TIDCORP, any provision of existing law to the
(CSC), invalidating Arsenio de Guzman’s appointment as Financial contrary notwithstanding.
Management Specialist IV in TIDCORP. The CA subsequently denied the
motion for reconsideration that followed. All positions in TIDCORP shall be governed by a compensation and position
classification system and qualification standards approved by TIDCORP's
Factual Antecedents Board of Directors based on a comprehensive job analysis and audit of
actual duties and responsibilities. The compensation plan shall be
comparable with the prevailing compensation plans in the private sector
On August 30, 2001, De Guzman was appointed on a permanent
and shall be subject to periodic review by the Board no more than once
every four (4) years without prejudice to yearly merit reviews or increases
status as Financial Management Specialist IV of TIDCORP, a government- based on productivity and profitability. TIDCORP shall be exempt from
owned and controlled corporation (GOCC) created pursuant to Presidential existing laws, rules and regulations on compensation, position classification
and qualification standards. It shall, however, endeavor to make the
Decree No. 1080. His appointment was included in TIDCORP’s Report on system to conform as closely as possible to the principles and modes
provided in Republic Act No. 6758.
Personnel Actions (ROPA) for August 2001, which was submitted to the
On the basis of Section 7 of RA 8494, Tambanillo argued that TIDCORP is
CSC – Department of Budget and Management (DBM) Field Office. 5 authorized to adopt an organizational structure different from that set and
prescribed by the CSC. Section 7 exempts TIDCORP from existing laws on
In a letter6 dated September 28, 2001, Director Leticia M. Bugtong compensation, position classification and qualification standards, and is
disallowed De Guzman’s appointment because the position of Financial thus not bound by the DBM’s Index of Occupational Service. Pursuant to
Management Specialist IV was not included in the DBM’s Index of this authority, TIDCORP’s Board of Directors issued Resolution No. 1185, s.
Occupational Service. 1998 approving the corporation’s re-organizational plan, under which De
Guzman was appointed Financial Management Specialist IV. De Guzman’s
appointment was valid because the plan providing for his position followed
the letter of the law.
Tambanillo also noted that prior to De Guzman’s appointment as Financial Director Padilla’s decision to the CSC-Central Office (CO). Valdes reiterated
Management Specialist IV, the position had earlier been occupied by Ma. TIDCORP’s argument that RA 8494 authorized its Board of Directors to
Loreto H. Mayor whose appointment was duly approved by Director determine its own organizational structure and staffing pattern, and
Bugtong. Thus, Director Bugtong’s invalidation of De Guzman’s exempted TIDCORP from all existing laws on compensation, position
appointment is inconsistent with her earlier approval of Mayor’s classification and qualification standards. Citing Javellana v. The Executive
appointment to the same position. Secretary, et al.,12 Valdes asserted that the wisdom of Congress in granting
TIDCORP this authority and exemption is a political question that cannot be
The CSC-NCR’s Ruling the subject of judicial review. Given TIDCORP’s functions as the
government’s export credit agency, its Board of Directors has been
Director Padilla denied Tambanillo’s appeal because De Guzman’s provided flexibility in administering its personnel so that it can hire
appointment failed to comply with Section 1, Rule III of CSC Memorandum qualified employees from the private sector, such as banks and other
Circular No. 40, s. 1998, which requires that the position title of an financial institutions.
appointment submitted to the CSC must conform with the approved
Position Allocation List and must be found in the Index of Occupational In addition, prior actions of the CSC show that it recognized TIDCORP’s
Service. Since the position of Financial Management Specialist IV is not exemption from all laws regarding compensation, position classification
included in the Index of Occupational Service, then De Guzman’s and qualification standards of its employees. The CSC has approved prior
appointment to this position must be invalid.8 Director Padilla pointed out appointments of TIDCORP’s officers under its July 1, 1998 re-organization
that the CSC had already decided upon an issue similar to De Guzman’s plan. It also approved Mayor’s previous appointment as Financial
case in CSC Resolution No. 011495 (Geronimo, Rolando S.C., Macapagal, Management Specialist IV. Further, a memorandum dated October 29,
Vivencio M. Tumangan, Panser E., Villar, Victor G., Ong, Elizabeth P., Re: 1998 issued by the CSC-NCR noted that "pursuant to Sec. 7 of RA 8494,
Invalidated Appointments; Appeal) where it invalidated the appointments TIDCORP is exempt from existing laws, rules and regulations on
of several Development Bank of the Philippines (DBP) employees because compensation, position classification and qualification standards." 13
their position titles did not conform with the Position Allocation List and
with the Index of Occupational Service. Like TIDCORP, the DBP’s charter The CSC-CO’s ruling
exempts the DBP from existing laws, rules, and regulations on
compensation, position classification and qualification standards. It also In its Resolution No. 030144,14 the CSC-CO affirmed the CSC-NCR’s decision
has a similar duty to "endeavor to make its system conform as closely as that De Guzman’s appointment should have complied with CSC
possible to the principles under the Compensation and Position Memorandum Circular No. 40, s. 1998, as amended by CSC Memorandum
Classification Act of 1989 (Republic Act No. 6758, as amended)." 9 Circular No. 15, s. 1999. Rule III, Section 1(c) is explicit in requiring that the
position title indicated in the appointment should conform with the
Lastly, Padilla stressed that the 1987 Administrative Code empowers 10 the Position Allocation List and found in the Index of Occupational Service.
CSC to formulate policies and regulations for the administration, Otherwise, the appointment shall be disapproved. In disallowing De
maintenance and implementation of position, classification and Guzman’s appointment, the CSC-CO held that Director Bugtong was simply
compensation. following the letter of the law.
TIDCORP’s appeal to the CSC-CO According to the CSC-CO, TIDCORP misconstrued the provisions of Section
7 of RA 8494 in its attempt to bypass the requirements of CSC
In response to the CSC-NCR’s ruling, TIDCORP’s President and CEO Joel C. Memorandum Circular No. 40, s. 1998. While RA 8494 gave TIDCORP
Valdes sent CSC Chairperson Karina Constantino-David a Letter 11 appealing staffing prerogatives, it would still have to comply with civil service rules
because Section 7 did not expressly exempt TIDCORP from civil service Further, the CA cited the CSC’s mandate under the 1987 Constitution to
laws. approve or disapprove appointments and to determine whether an
appointee possesses civil service eligibility. As TIDCORP’s charter does not
The CSC-CO also supported the CSC-NCR’s invocation of CSC Resolution No. expressly or impliedly divest the CSC of administrative authority over
011495. Both the charters of the DBP and TIDCORP have similar provisions personnel concerns at TIDCORP, the latter is still covered by the existing
in the recruitment and administration of their human resources. Thus, the civil service laws on compensation, position classification and qualification
ruling in CSC Resolution No. 011495 has been correctly applied in standards. Its appointment of De Guzman as Financial Management
TIDCORP’s appeal. Specialist IV should have complied with these rules.
Lastly, the CSC-CO noted that the government is not bound by its public The CA thus concluded that the CSC was well-within its authority when it
officers’ erroneous application and enforcement of the law. Granting that invalidated De Guzman’s appointment. It held that an appointee’s title to
the CSC-NCR had erroneously approved an appointment to the same the office does not permanently vest until the appointee complies with the
position as De Guzman’s appointment, the CSC is not estopped from legal requirements of his appointment. The requirements include the
correcting its officers’ past mistakes. submission of the appointment to the CSC for the determination of
whether the appointee qualifies to the position and whether the
TIDCORP moved to reconsider15 the CSC-CO’s decision, but this motion was procedure for appointment has been properly followed. Until these
denied,16 prompting TIDCORP to file a Rule 65 petition for certiorari 17 with requirements are complied with, his appointment may still be recalled or
the CA. The petition asserted that the CSC-CO committed grave abuse of withdrawn by the appointing authority.20
discretion in issuing Resolution No. 030144 and Resolution No. 031037.
TIDCORP moved for reconsideration21 but the CA denied the motion in a
The Appellate Court’s Ruling resolution22 dated March 17, 2008.
The CA denied18 TIDCORP’s petition and upheld the ruling of the CSC-CO in The Present Petition
Resolution No. 030144 and Resolution No. 031037. The CA noted that filing
a petition for certiorari was an improper recourse; TIDCORP should have In its present petition for review on certiorari,23 TIDCORP argued that the
instead filed a petition for review under Section 1, Rule 43 of the Rules of CSC’s interpretation of the last sentence of Section 7 of RA 8494 (which
Court. The CA, however, brushed aside the procedural defect, ruling that mandates it to endeavor to make the system conform as closely as possible
the assailed resolutions should still stand as they are consistent with law with the principles provided in RA 6758) is misplaced. This provision does
and jurisprudence. not bar TIDCORP from adopting a position classification system and
qualification standards different from those prescribed by the CSC.
Citing Central Bank of the Philippines v. Civil Service Commission, 19 the CA TIDCORP asserts that it is not also duty bound to comply with civil service
stood by the CSC-CO’s ruling that it has authority to approve and review De rules on compensation and position classification, as it is exempt from all
Guzman’s appointment. The CSC has the power to ascertain whether the these rules. Instead, TIDCORP is only required to furnish the CSC with its
appointing authority complied with the requirements of the law; compensation and position classification system and qualification
otherwise, it may revoke the appointment. As TIDCORP is a government- standards so that the CSC can be properly guided in processing TIDCORP’s
owned corporation, it is covered by civil service laws and is therefore appointments, promotion and personnel action.
bound by the CSC’s jurisdiction over all matters pertaining to personnel,
including appointments. Insisting on its exemption from RA 6758 and CSC Memorandum Circular
No. 40, s. 1998, TIDCORP emphasizes that the provisions of RA 6758, which
the CSC applied to TIDCORP, is a general law, while TIDCORP’s charter, RA 1) Whether the Constitution empowers the CSC to prescribe and
8494, is a special law. In interpreting conflicting provisions of a general law enforce civil service rules and regulations contrary to laws passed
and a special law, the provisions of the two laws should be harmonized to by Congress;
give effect to both. But if these provisions cannot be reconciled, then the
special law should prevail because it is a qualification to the general rule. 2) Whether the requirement in Section 1(c), Rule III of CSC
Memorandum Circular No. 40, s. 1998, as amended by CSC
Further, RA 8494 is a later expression of Congress’ intent as it was enacted Memorandum Circular No. 15, s. 1999, applies to appointments in
nine years after RA 6758 was approved, and should therefore be construed TIDCORP; and
in this light in its relation with the latter. A new statute should be
interpreted in connection with those already existing in relation to the 3) Whether De Guzman’s appointment as Financial Management
same subject matter and all should be made to harmonize and stand Specialist IV in TIDCORP is valid.
together – interpretare et concordare legibus est optimus interpretandi.
The Court’s Ruling
Under these principles, TIDCORP argued that Section 7 of RA 8494, the
provision of a special law, should be interpreted as an exemption to RA We find the petition meritorious.
6758. Thus, CSC Memorandum Circular No. 40, s. 1998, which was issued
pursuant to RA 6758, should not have been applied to limit TIDCORP’s
Directly at issue is the application of Section 1(c), Rule III of CSC
staffing prerogatives.
Memorandum Circular No. 40, s. 1998, to appointments in TIDCORP.
TIDCORP claims that its exemption, embodied in Section 7 of its charter,
In its comment,24 the CSC noted that CSC Memorandum Circular No. 40, precludes the application of this requirement. The CSC, on the other hand,
series of 1998, as amended by CSC Memorandum Circular No. 15, s. 1999, maintains its stance that appointments in a GOCC should follow the civil
was issued in accordance with its authority to prescribe rules and service laws on appointments, regardless of its exemption from the civil
regulations to carry out the provisions of civil service laws and other service rules on compensation, position classification and qualification
pertinent laws (Administrative Code), and not pursuant to RA 6758. standards.
The CSC maintained that Section 2(1), Article IX-B of the Constitution While the CSC has authority over personnel actions in GOCCs, the rules it
includes government and controlled corporations as part of the civil formulates pursuant to this mandate should not contradict or amend the
service. TIDCORP, a GOCC, is therefore covered by the civil service rules civil service laws it implements.
and by the CSC. It should submit its Position Allocation List to the DBM,
regardless of its exemption under RA 6758.
At the outset, we clarify that the CSC’s authority over personnel actions in
TIDCORP is uncontested. Both parties acknowledge this relationship in the
Lastly, the CSC argued that RA 8494 should not prevail over RA 6758 pleadings they filed before the Supreme Court. 25 But while TIDCORP asserts
because the latter also applies to GOCCs like TIDCORP; RA 8494 even that its charter exempts it from rules on compensation, position
makes a reference to RA 6758. classification and qualification standards, the CSC argues that this
exemption is irrelevant to the denial of De Guzman’s appointment because
Issues the CSC’s authority over TIDCORP’s personnel actions requires it to comply
with the CSC’s rules on appointments.
The parties’ arguments, properly joined, present to us the following issues:
The parties’ arguments reveal an apparent clash between TIDCORP’s MR. REGALADO. In other words, all those functions enumerated from line
charter, enacted by Congress, and the CSC rules, issued pursuant to the 35 on page 2 to line 1 of page 3, inclusive, are understood to be
CSC’s rule-making power. Does the CSC’s constitutional authority over the encompassed in the phrase "central personnel agency of the government."
civil service divest the Legislature of the power to enact laws providing
exemptions to civil service rules? MS. AQUINO. Yes, Mr. Presiding Officer, except that on line 40 of page 2
and line 1 of the subsequent page, it was only subjected to a little
We answer in the negative. The CSC’s rule-making power, albeit modification.
constitutionally granted, is still limited to the implementation and
interpretation of the laws it is tasked to enforce. MR. REGALADO. May we, therefore, make it of record that the phrase ". . .
promulgate and enforce policies on personnel actions, classify positions,
The 1987 Constitution created the CSC as the central personnel agency of prescribe conditions of employment except as to compensation and other
the government mandated to establish a career service and promote monetary benefits which shall be provided by law" is understood to be
morale, efficiency, integrity, responsiveness, progressiveness, and courtesy subsumed under and included in the concept of a central personnel
in the civil service.26 It is a constitutionally created administrative agency agency.
that possesses executive, quasi-judicial and quasi-legislative or rule-making
powers. MS. AQUINO. I would have no objection to that. 28
While not explicitly stated, the CSC’s rule-making power is subsumed The 1987 Administrative Code then spelled out the CSC’s rule-making
under its designation as the government’s "central personnel agency" in power in concrete terms in Section 12, Book V, Title I-A, which empowered
Section 3, Article IX-B of the 1987 Constitution. The original draft of Section the CSC to implement the civil service law and other pertinent laws, and to
3 empowered the CSC to "promulgate and enforce policies on personnel promulgate policies, standards and guidelines for the civil service. 29
actions, classify positions, prescribe conditions of employment except as to
compensation and other monetary benefits which shall be provided by The CSC’s rule-making power as a constitutional grant is an aspect of its
law." This, however, was deleted during the constitutional commission’s independence as a constitutional commission. It places the grant of this
deliberations because it was redundant to the CSC’s nature as an power outside the reach of Congress, which cannot withdraw the power at
administrative agency:27 any time. As we said in Gallardo v. Tabamo, Jr., 30 a case which upheld the
validity of a resolution issued by the Commission on Elections (COMELEC),
MR. REGALADO. This is more for clarification. The original Section 3 states, another constitutional commission:
among others, the functions of the Civil Service Commission — to
promulgate and enforce policies on personnel actions. Will Commissioner Hence, the present Constitution upgraded to a constitutional status the
Aquino kindly indicate to us the corresponding provisions and her aforesaid statutory authority to grant the Commission broader and more
proposed amendment which would encompass the powers to promulgate flexible powers to effectively perform its duties and to insulate it further
and enforce policies on personnel actions? from legislative intrusions. Doubtless, if its rule-making power is made to
depend on statutes, Congress may withdraw the same at any time. Indeed,
MS. AQUINO. It is my submission that the same functions are already the present Constitution envisions a truly independent Commission on
subsumed under the concept of a central personnel agency. Elections committed to ensure free, orderly, honest, peaceful and credible
elections, and to serve as the guardian of the people's sacred right of
suffrage — the citizenry's vital weapon in effecting a peaceful change of
government and in achieving and promoting political stability. [citation rule-making power. No less than the introductory clause of CSC
omitted] Memorandum Circular No. 40, s. 1998, confirms this:
But while the grant of the CSC’s rule-making power is untouchable by Pursuant to Paragraphs 2 and 3, Section 12, Book V of Administrative Code
Congress, the laws that the CSC interprets and enforces fall within the of 1987 otherwise known as Executive Order No. 292, the Civil Service
prerogative of Congress. As an administrative agency, the CSC’s quasi- Commission hereby prescribes the following rules to govern the
legislative power is subject to the same limitations applicable to other preparation, submission of, and actions to be taken on appointments and
administrative bodies. The rules that the CSC formulates must not other personnel actions.34
override, but must be in harmony with, the law it seeks to apply and
implement.31 Both these memoranda govern appointments and personnel actions in the
civil service. CSC Memorandum Circular No. 40, s. 1998, or the "Revised
For example, in Grego v. Commission on Elections, 32 we held that it was Omnibus Rules on Appointments and Other Personnel Actions," updated
improper for the COMELEC, a constitutional body bestowed with rule- and consolidated the various issuances on appointments and other
making power by the Constitution, to use the word "shall" in the rules it personnel actions and simplified their processing. This was subsequently
formulated, when the law it sought to implement uses the word "may." amended by CSC Memorandum Circular No. 15, s. 1999.
While rules issued by administrative bodies are entitled to great respect,
"the conclusive effect of administrative construction is not absolute. The The assailed provisions in those memorandum circulars, however, involve
function of promulgating rules and regulations may be legitimately position classification. Section 1(c), Rule III of CSC Memorandum Circular
exercised only for the purpose of carrying the provisions of the law into No. 40,35 s. 1998, requires, as a condition sine qua non for the approval of
effect. x x x Administrative regulations cannot extend the law nor amend a an appointment, that the position title indicated therein conform with the
legislative enactment; x x x administrative regulations must be in harmony approved Position Allocation List. The position title should also be found in
with the provisions of the law," and in a conflict between the basic law and the Index of Occupational Service. According to National Compensation
an implementing rule or regulation, the former must prevail. 33 Circular No. 58, the Position Allocation List is a list prepared by the DBM
which reflects the allocation of existing positions to the new position titles
CSC Memorandum Circular No. 40, s. 1998, and CSC Resolution No. 15, s. in accordance with the Index of Occupational Service, Position Titles and
1999, which were issued pursuant to the CSC’s rule-making power, involve Salary Grades issued under National Compensation Circular No. 57. 36 Both
rules on position classification circulars were published by the DBM pursuant to its mandate from RA
6758 to establish a position classification system in the government. 37
Two questions logically follow our conclusion on the extent of the CSC’s
rule-making power. The first is whether Section 1(c), Rule III of CSC Further, the CSC admitted in its comment that RA 6758 was the basis for
Memorandum Circular No. 40, s. 1998, was issued pursuant to the CSC’s the issuance of CSC Memorandum Circular No. 40, s. 1998, as amended by
rule-making power; the second is whether this provision involves CSC Memorandum Circular No. 15, s. 1999. The CSC said:
compensation, position classification and/or qualification standards that
TIDCORP claims to be exempt from. We answer both questions in the The abovecited Sections 4 and 6 of R.A. No. 6758 are the bases for
affirmative. respondent’s issuance of CSC Memorandum Circular No. 40, series of 1998,
as amended by CSC Memorandum Circular No. 15, series of 1999. To
We agree with the CSC’s position that CSC Memorandum Circular No. 40, s. reiterate, the Circulars mandate that appointments should conform to the
1998, and CSC Resolution No. 15, s. 1999, were all issued pursuant to its approved Position Allocation List (PAL) and at the same time be listed in
the Index of Occupational Service (IOS).38
Section 7 of TIDCORP’s charter exempts it from rules involving position that the words employed by the legislature in a statute correctly express
classification its intent and preclude the court from construing it differently. The
legislature is presumed to know the meaning of the words, to have used
To comply with Section 1(c), Rule III of CSC Memorandum Circular No. 40, words advisedly, and to have expressed its intent by the use of such words
s. 1998, TIDCORP must conform with the circulars on position classification as are found in the statute. Verba legis non est recedendum, or from the
issued by the DBM. Section 7 of its charter, however, expressly exempts words of a statute there should be no departure."40
TIDCORP from existing laws on position classification, among others.
The phrase "to endeavor" means to "to devote serious and sustained
In its comment, the CSC would want us to disregard TIDCORP’s exemption effort" and "to make an effort to do." It is synonymous with the words to
from laws involving position classification because RA 6758 applies to all strive, to struggle and to seek.41 The use of "to endeavor" in the context of
GOCCs. It also noted that Section 7 of RA 8494, the provision TIDCORP Section 7 of RA 8494 means that despite TIDCORP’s exemption from laws
invokes as the source of its exemption, also directs its Board of Directors to involving compensation, position classification and qualification standards,
"endeavor to make its system conform as closely as possible with the it should still strive to conform as closely as possible with the principles
principles [and modes provided in] Republic Act No. 6758." 39 This reference and modes provided in RA 6758. The phrase "as closely as possible," which
of RA 6758 in Section 7 means that TIDCORP cannot simply disregard RA qualifies TIDCORP’s duty "to endeavor to conform," recognizes that the law
6758 but must take its principles into account in providing for its own allows TIDCORP to deviate from RA 6758, but it should still try to hew
position classifications. This requirement, to be sure, does not run counter closely with its principles and modes. Had the intent of Congress been to
to Section 2(1), Article IX-B of the Constitution which provides that "the require TIDCORP to fully, exactly and strictly comply with RA 6758, it would
civil service embraces all branches, subdivisions, instrumentalities, and have so stated in unequivocal terms. Instead, the mandate it gave TIDCORP
agencies of the Government, including government-owned or controlled was to endeavor to conform to the principles and modes of RA 6758, and
corporations with original charters." The CSC shall still enforce position not to the entirety of this law.
classifications at TIDCORP, but must do this under the terms that TIDCORP
has itself established, based on the principles of RA 6758. These inter-relationships render it clear, as a plain reading of Section 7 of
RA 8494 itself would confirm, that TIDCORP is exempt from existing laws
To further expound on these points, the CSC’s authority over TIDCORP is on compensation, position classification and qualification standards,
undisputed.1âwphi1 The rules that the CSC formulates should implement including compliance with Section 1(c), Rule III of CSC Memorandum
and be in harmony with the law it seeks to enforce. In TIDCORP’s case, the Circular No. 40, s. 1998.
CSC should also consider TIDCORP’s charter in addition to other civil
service laws. Having said this, there remains the issue of how the CSC De Guzman’s appointment as Financial Management Specialist IV is valid
should apply the civil service law to TIDCORP, given the exemptions
provided in the latter’s charter. Does the wording of Section 7 of RA 8494 With TIDCORP exempt from Section 1(c), Rule III of CSC Memorandum
command TIDCORP to follow issued requirements pursuant to RA 6758 Circular No. 40, s. 1998, there remains the issue of whether De Guzman’s
despite its exemption from laws involving position classification? appointment as Financial Management Specialist IV is valid. Since Section
1(c), Rule III of CSC Memorandum Circular No. 40, s. 1998,is the only
We answer in the negative. "Under the principles of statutory construction, requirement that De Guzman failed to follow, his appointment actually
if a statute is clear, plain and free from ambiguity, it must be given its complied with all the requisites for a valid appointment. The CSC,
literal meaning and applied without attempted interpretation. This plain- therefore, should have given due course to De Guzman's appointment.
meaning rule or verba legis is derived from the maxim index animi sermo
est (speech is the index of intention) and rests on the valid presumption
WHEREFORE, all premises considered, we hereby GRANT the petition, and and seeking to restrain the implementation of the Commission of Elections
REVERSE and SET ASIDE the decision dated September 28, 2007 and the (COMELEC) en banc's June 29, 2015 Decision1 for allegedly being repugnant
resolution dated March 17, 2008 of the Court of Appeals in CA-G.R. SP. No. to the provisions of Batas Pambansa Blg. 68 (BP 68), otherwise known as
81058, as well 'as Resolution No. 030144 and Resolution No. 031037 of the the Corporation Code of the Philippines, and Republic Act No. 9184 (RA
Civil Service Commission that the Court of Appeals rulings affirmed. No 9184) or the Government Procurement Reform Act.
costs.
The Facts
SO ORDERED.
On October 27, 2014, the COMELEC en banc, through its Resolution No. 14-
0715, released the bidding documents for the "Two-Stage Competitive
Bidding for the Lease of Election Management System (EMS) and Precinct-
Based Optical Mark Reader (OMR) or Optical Scan (OP-SCAN)
System."2 Specified in the published Invitation to Bid 3 are the details for
the lease with option to purchase, through competitive public bidding, of
twenty-three thousand (23,000) new units of precinct-based OMRs or OP-
SCAN Systems, with a total Approved Budget for Contract of
EN BANC
P2,503,518,000,4 to be used in the 2016 National and Local Elections.5 The
COMELEC Bids and Awards Committee (BAC) set the deadline for the
G.R. No. 218787, December 08, 2015 submission by interested parties of their eligibility requirements and initial
technical proposal on December 4, 2014.6
LEO Y. QUERUBIN, MARIA CORAZON M. AKOL, AND AUGUSTO C.
LAGMAN, Petitioners, v. COMMISSION ON ELECTIONS EN BANC, The joint venture of Smartmatic-TIM Corporation (SMTC), Smartmatic
REPRESENTED BY CHAIRPERSON J. ANDRES D. BAUTISTA, AND JOINT International Holding B.V., and Jarltech International Corporation
VENTURE OF SMARTMATIC-TIM CORPORATION, TOTAL INFORMATION (collectively referred to as "Smartmatic JV") responded to the call and
MANAGEMENT CORPORATION, SMARTMATIC INTERNATIONAL HOLDING submitted bid for the project on the scheduled date. Indra Sistemas, S.A.
B.V. AND JARLTECH INTERNATIONAL CORPORATION, REPRESENTED BY (Indra) and MIRU Systems Co. Ltd. likewise signified their interest in the
PARTNER WITH BIGGEST EQUITY SHARE, SMARTMATIC-TIM project, but only Indra, aside from Smartmatic JV, submitted its bid. 7
CORPORATION, ITS GENERAL MANAGER ALASTAIR JOSEPH JAMES WELLS,
SMARTMATIC CHAIRMAN LORD MALLOCH-BROWN, SMARTMATIC-ASIA During the opening of the bids, Smartmatic JV, in a sworn certification,
PACIFIC PRESIDENT CESAR FLORES, AND ANY OR ALL PERSONS ACTING informed the BAC tha't one of its partner corporations, SMTC, has a
FOR AND ON BEHALF OF THE JOINT VENTURE, Respondent. pending application with the Securities and Exchange Commission (SEC) to
amend its Articles of Incorporation (AOI), attaching therein all pending
DECISION documents.8 The amendments adopted as early as November 12, 2014
were approved by the SEC on December 10, 2014.9 On even date,
VELASCO JR., J.: Smartmatic JV and Indra participated in the end-to-end testing of their
initial technical proposals for the procurement project before the BAC.
Nature of the Case
Upon evaluation of the submittals, the BAC, through its Resolution No. 1
Before the Court is a petition for certiorari or prohibition under Rule 64 of dated December 15, 2014, declared Smartmatic JV and Indra eligible to
the Rules of Court, with prayer for injunctive relief, assailing the validity participate in the second stage of the bidding process. 10 The BAC then
issued a Notice requiring them to submit their Final Revised Technical Advanced Science and Technology Institute (ASTI) at the University of the
Tenders and Price proposals on February 25, 2015, to which the eligible Philippines, Diliman, Quezon City.22
participants complied. Finding that the joint venture satisfied the
requirements in the published Invitation to Bid, Smartmatic JV, on March Ruling of the COMELEC en banc
26, 2015, was declared to have tendered a complete and responsive
Overall Summary of the Financial Proposal. 11 Meanwhile, Indra was Though initially finding that the OMR+'s ability to simultaneously write
disqualified for submitting a non-responsive bid. 12 data in two storage devices could not conclusively be established, 23 the
TEC, upon the use of a Digital Storage Oscilloscope (DSO) during the
Subsequently, for purposes of post-qualification evaluation, the BAC second demonstration,24 determined that the OMR+ complied with the
required Smartmatic JV to submit additional documents and a prototype requirements specified in the TOR.25 Adopting the findings of the TEC as
sample of its OMR.13 The prototype was subjected to testing to gauge its embodied in its Final Report, the COMELEC en banc, on June 29, 2015,
compliance with the requirements outlined in the project's Terms of promulgated the assailed Decision granting Smartmatic JV's protest. The
Reference (TOR).14 dispositive portion of the Decision reads:26
WHEREFORE, the instant Protest is hereby GRANTED. Accordingly, the
After the conduct of post-qualification, the BAC, through Resolution No. 9 Commission hereby declares the Joint Venture of Smartmatic-TIM
dated May 5, 2015, disqualified Smartmatic JV on two grounds, viz: 15 Corporation, Total Information Management Corporation, Smartmatic
International Holding B.V., and Jarltech International Corporation, as the
1. Failure to submit valid AOI; and bidder with the lowest calculated responsive bid in connection with the
public bidding for the lease with option to purchase of 23,000 new units of
2. The demo unit failed to meet the technical requirement that the precinct-based Optical Mark Reader or Optical Scan System for use in the
system shall be capable of writing all data/files, audit log, statistics May 9, 2016 national and local elections. Corollarily, the scheduled
and ballot images simultaneously in at least two (2) data storages. opening of financial proposal and eligibility documents for the Second
Round of Bidding is hereby CANCELLED, with specific instruction for the
The ruling prompted Smartmatic JV to move for reconsideration. 16 In Bids and Awards Committee to RETURN to the prospective bidders their
denying the motion, the BAC, through Resolution No. 10 17 dated May 15, respective payments made for the purchase of Bidding Documents
2015, declared that Smartmatic JV complied with the requirements of Sec. pertaining to the Second Round of Bidding.
23.1(b) of the Revised Implementing Rules and Regulations of RA 9184
(GPRA IRR), including the submission of a valid AOI, but was nevertheless Let the Bids and Awards Committee implement this Decision.
disqualified as it still failed to comply with the technical requirements of
the project.18 SO ORDERED.
The seven-man commission was unanimous in holding that Smartmatic
Aggrieved, Smartmatic JV filed a Protest, 19 seeking permission to conduct JV's OMR+ sufficiently satisfied the technical requirements itemized in the
another technical demonstration of its SAES 1800 plus OMR (OMR+), the TOR, reproducing in the assailed Decision, verbatim and with approbation,
OMR Smartmatic JV presented during the public bidding before the the entirety of the TEC's Final Report, thusly:27
COMELEC en banc.20 Accordingly, on June 19, 2015, Smartmatic JV was This is to report on the result of the public test conducted on 23 June of
allowed to prove compliance with the technical specifications for the the claim of Smartmatic TIM (SMTT) that their proposed SAES 1800
second time, but this time before the electoral tribunal's Technical (PCOS+) has the capability to write ballot images, audit logs, and elections
Evaluation Committee (TEC).21 This was followed, on June 23, 2015, by results on two separate storage (devices) simultaneously.
another technical demonstration before the Commission en banc at the
Technical discussion, demonstrations, and design reviews were conducted
over two day period before the actual demonstration to the Comelec En measuring the differences in time and voltage.
Banc. These reviews were conducted between SMTT engineers and a team
of embedded electronics design engineers from the Advanced Science and The vertical dashed line on the left marks the start of the data being
Technology Institute of the Department of Science and Technology. written on the main and backup storage card and the vertical dashed line
on the right marks the ends of the writing operation for one ballot. The
Though these reviews are important to validate the behavior and time difference in this case is about 2.616 seconds as shown near the
functionality of the PCOS+, the best way to validate the claim of SMTT is to bottom left corner of the display.
use a specialized test instrument connected to the actual electrical inputs
of both storage cards. The yellow and green vertical lines in between the two vertical dashed
lines represent the digital ones and zeros being written on both storage
To visualize the electrical signals being sent to the memory cards, an cards. The yellow and green traces are not exactly identical because the
Agilent DSO7054A Digital Storage Oscilloscope (DSO) from ASTI connected main car also contains the operating system of the PCOS+ and additional
to the same data input line on two SD card adapters with a micro SD card data operations are being performed on it. Because the time scale is the
inside. This was done to simulate an actual SC card and to make the DSO same on both probes, we conclude that the PCOS+ is writing on both cards
probe connections accessible and secure without modifying anything in the simultaneously during this time interval.
PCOS+ hardware or software. x x x Notwithstanding Smartmatic JV's compliance with the technical
requirements in the TOR, Commissioner Luie Tito F. Guia (Guia) would
During normal operation such as on Election day, when the PCOS+ is nonetheless dissent in part, questioning the sufficiency of the documents
accepting ballots from voters, the PCOS+ is designated to write data on submitted by the Smartmatic JV.28 Taking their cue from Commissioner
both SD cards after the ballots has been determined to be valid and the Guia's dissent, petitioners now assail the June 29, 2015 Decision of the
voter choices have been shown to the voter for verification. COMELEC through the instant recourse.
The data being written on the storage devices consist mainly of the The Issues
scanned ballots image of the front and back of the ballot at 200 dots per
inch in both the horizontal and vertical dimension with each dot encoded Petitioners framed the issues in the extant case in the following wise: 29
into a 4 bit value corresponding to 16 shades of gray. The other data saved A. Procedural Issues
on the storage device consists of the vote interpretation and updates to
the audit log. Each time that data is. written on the two storage device, the I. WHETHER OR NOT THE PETITION IS THE PROPER REMEDIAL
date is encrypted and a verification step is done to check that identical VEHICLE TO ASSAIL THE SUBJECT DECISION OF THE COMELEC EN
data is written on both devices. The entire write process lasts a few BANC;
seconds for each ballot.
II. WHETHER OR NOT THE SUPREME COURT HAS THE RIGHT AND
xxxx DUTY TO ENTERTAIN THIS PETITION;
The DSO display the time dimension on the horizontal axis and the III. WHETHER OR NOT A JUSTICIABLE CASE OR CONTROVERSY EXISTS;
electrical voltage in the vertical axis, the display is generated left to right
over time (earlier events are on the left). The yellow line on top shows the IV. WHETHER OR NOT THE CASE OR CONTROVERSY IS RIPE FOR
electrical signal on the Data 2 pin of the main storage card and the green JUDICIAL ADJUDICATION;
line shows the electrical signal on the Data 2 pin of the backup storage
card. The orange dashed horizontal and vertical lines are used for
V. WHETHER OR NOT UNDER THE CIRCUMSTANCES, THE RULE ON Code or by special law:chanRoblesvirtualLawlibrary
"HIERARCHY OF COURTS" MAY BE DISPENSED WITH;
xxxx
VI. WHETHER OR NOT THE PETITIONERS POSSESS LOCUS STANDI;
2. The specific purpose or purposes for which the corporation is being
B. Substantive Issues incorporated. Where a corporation has more than one stated purpose, the
articles of incorporation shall state which is the primary purpose and which
is/are the secondary purpose or purposes: Provided, That a nonstock
corporation may not include a purpose which would change or contradict
its nature as such x x x.
VII. WHETHER OR NOT THE COMELEC EN BANC ACTED WITH GRAVE
As proof, petitioners cite the primary purpose of SMTC as stated in the
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
company's AOI, which was submitted to the COMELEC on December 4,
JURISDICTION IN GRANTING THE PROTEST AS WELL AS IN
2014 as part of the joint venture's eligibility documents. To quote SMTC's
DECLARING THE JOINT VENTURE OF SMARTMATIC-TIM
primary purpose therein:31
CORPORATION, TOTAL INFORMATION MANAGEMENT
To do, perform and comply with all the obligations and responsibilities of,
CORPORATION, SMARTMATIC INTERNATIONAL HOLDING B.V.
and accord legal personality to, the joint venture of Total Information
AND JARLTECH INTERNATIONAL CORPORATION AS THE BIDDER
Management Corporation ("TIM") and Smartmatic International
WITH THE LOWEST CALCULATED RESPONSIVE BID IN
Corporation ("Smartmatic") arising under the Request for Proposal and the
CONNECTION WITH THE PUBLIC BIDDING FOR THE LEASE WITH
Notice of Award issued by the Commission on Elections ("COMELEC") for
OPTION TO PURCHASE OF 23,000 NEW UNITS OF PRECINCT-
the automation of the 2010 national and local elections ("Project"),
BASED OPTICAL MARK READER OR OPTICAL SCAN SYSTEM FOR
including the leasing, selling, importing and/or assembling of automated
USE IN THE MAY 9, 2016 NATIONAL AND LOCAL ELECTIONS
voting machines, computer software and other computer services and/or
otherwise deal in all kinds of services to be used, offered or provided to
VIII. WHETHER OR NOT A WRIT OF PRELIMINARY INJUNCTION OR
the COMELEC for the preparations and the conduct of the
TEMPORARY RESTRAINING ORDER SHOULD ISSUE
Project including project management services. (emphasis added)
In concurrence with Commissioner Guia's opinion, petitioners argue that
In challenging the June 29, 2015 Decision, petitioners; filing as taxpayers,
the foregoing paragraph readily evinces that SMTC was created solely for
alleged that the COMELEC en banc acted with grave abuse of discretion
the automation of the 2010 National and Local Elections, not for any other
amounting to lack or excess of jurisdiction in declaring Smartmatic JV as
election.32 Having already served its purpose, SMTC no longer has authority
the bidder with the lowest calculated responsive bid. 30 According to
to engage in business, so petitioners claim. To allow SMTC then to have a
petitioners, Smartmatic JV cannot be declared eligible, even more so as the
hand in the succeeding elections would be tolerating its performance of
bidder with the lowest calculated responsive bid, because one of its
an ultra vires act.
proponents, SMTC, holding 46.5% of the shares of Smartmatic JV, no
longer has a valid corporate purpose as required under Sec. 14 of BP 68,
Petitioners hasten to add that without a valid purpose, the company could
which pertinently reads:
not have submitted a valid AOI, a procurement eligibility requirement
Section 14. Contents of the articles of incorporation. - All corporations
under Sec. 23.1 (b) of the IRR of RA 9184. For them, the SEC's subsequent
organized under this code shall file with the Securities and Exchange
approval, on December 10, 2014, of the amendments to SMTC's AOI
Commission articles of incorporation in any of the official languages duly
cannot cure the partner corporation's ineligibility because eligibility is
signed and acknowledged by all of the incorporators, containing
determined at the time of the opening of the bids, which, in this case, was
substantially the following matters, except as otherwise prescribed by this
conducted on December 4, 2014.33
already dealt with SMTC numerous times after the 2010 elections. 46
Finally, petitioners contend that SMTC misrepresented itself by leading the
BAC to believe that it may cany out the project despite its limited Private respondents would likewise debunk petitioners' allegation that
corporate purpose, and by claiming that it is a Philippine corporation when SMTC misrepresented its nationality. They argue that based on its General
it is, allegedly, 100% foreign-owned. 34 They add that misrepresentation is a Information Sheet (GIS), SMTC is a Filipino corporation, not a foreign one
ground for the procuring agency to consider a bidder ineligible and as petitioners alleged. Moreover, what is only required under RA 9184 is
disqualify it from obtaining an award or contract. 35 that the nationality of the joint venture be Filipino, and not necessarily that
of its individual proponents.47 In any event, so private respondents claim,
In its Comment,36 public respondent COMELEC, through the Office of the the COMELEC, under the law, is not prohibited from acquiring election
Solicitor General (OSG), refuted the arguments of petitioners on the main equipment from foreign sources, rendering SMTC and even Smartmatic
postulation that the sole issue raised before the COMELEC en banc was JV's nationality immaterial.48
limited to the technical aspect of the project. 37 According to the OSG, the
sufficiency of the documents submitted was already decided by the BAC on Lastly, private respondents pray for the petition's outright dismissal,
May 15, 2015 when it partially granted Smartmatic JV's motion for following petitioner Akol and Lagman's alleged failure to comply with the
reconsideration through BAC Resolution No. 10. Anent the procedural rules on verifications, on the submission of certifications against forum-
issues, the OSG, in its bid to have the case dismissed outright, questioned shopping, and on the efficient use of paper.49
petitioners' locus standi and failure to observe the hierarchy of courts. 38
The Court's Ruling
Meanwhile, private respondents, in their
Comment/Opposition,39 countered that the BAC has thoroughly explained The petition lacks merit.
and laid down the factual and legal basis behind its finding on Smartmatic
JV's legal capacity to participate as bidder in the project procurement; that Rule 64 is not applicable in assailing the COMELEC en banc's Decision
the issue on SMTC's AOI has been rendered moot by the SEC's subsequent granting Smartmatic JV's protest
approval on December 10, 2014 of the AOFs amendment broadening the
companyjs primary purpose;40 that SMTC's primary purpose, as amended, In arguing for the propriety of the remedial vehicle chosen, petitioners
now reads:41 claim that under Rule 64, Sec. 2 of the Rules of Court, "[a] judgment or
To sell, supply, lease, import, export, develop, assemble, repair and deal final order or resolution of the Commission on Elections x x x may be
with automated voting machines, canvassing equipment, computer brought by the aggrieved party to the Supreme Court on certiorari under
software, computer equipment and all other goods and supplies, and/or to Rule 65."50 They postulate that the June 29, 2015 Decision of the
provide, render and deal in all kinds of services, including project COMELEC en banc declaring Smartmatic JV as the eligible bidder with the
management services for the conduct of elections, whether regular or lowest calculated responsive bid is a "judgment" within the contemplation
special, in the Philippine(s) and to provide Information and Communication of the rule, and is, therefore, a proper subject of a Rule 64 petition.
Technology (ICT) goods and services to private and government entities in
the Philippines. The argument fails to persuade.
that the alleged defect in SMTC's AOI is of no moment since neither the
law nor the bidding documents require a bidder to submit its AOI; 42 that a. Rule 64 does not cover rulings of the COMELEC in the exercise of its
even assuming for the sake of argument that SMTC's primary purpose administrative powers
precludes it from further contracting for the automation of the Philippine
elections beyond 2010, its secondary purposes43 and Sec. 42 of BP The rule cited by petitioners is an application of the constitutional mandate
6844 authorize the company to do so;45 and that the COMELEC, in fact, has requiring that, unless otherwise provided by law, the rulings of the
constitutional commissions shall be subject to review only by the Supreme VRRs for the technical examination is administrative in nature. Rule 64, a
Court on certiorari. A reproduction of Article IX-A, Section 7 of the 1987 procedural device for the review of final orders, resolutions or decision of
Constitution is in order: the COMELEC, does not foreclose recourse to this Court under Rule 65
Section 7. Each Commission shall decide by a majority vote of all its from administrative orders of said Commission issued in the exercise of its
Members, any case or matter brought before it within sixty days from the administrative function.
date of its submission for decision or resolution. A case or matter is As applied herein, recall that the instant petition revolves around the issue
deemed submitted for decision or resolution upon the filing of the last on whether or not Smartmatic JV is eligible to participate in the bidding
pleading, brief, or memorandum required by the rules of the Commission process for the COMELEC's procurement of 23,000 units of optical mark
or by the Commission itself. Unless otherwise provided by this readers. The case does not stem from an election controversy involving the
Constitution or by law, any decision, order, or ruling of each Commission election, qualification, or the returns of an elective office. Rather, it
may be brought to the Supreme Court on certiorari by the aggrieved party pertains to the propriety of ihe polling commission's conduct of the
within thirty days from receipt of a copy thereof. (emphasis added) procurement process, and its initial finding that Smartmatic JV is eligible to
Though the provision appears unambiguous and unequivocal, the Court participate therein. It springs from the COMELEC's compliance with the
has consistently held that the phrase "decision, order, or ruling" of Constitutional directive to enforce and administer all laws and regulations
constitutional commissions, the COMELEC included, that may be brought relative to the conduct of an election. 54 Specifically, it arose from the
directly to the Supreme Court on certiorari is not all-encompassing, and electoral commission's exercise of Sec. 12 of RA 8436, otherwise known as
that it only relates to those rendered in the commissions' exercise the Automated Elections Law, as amended by RA 9369, 55 which authorized
of adjudicatory or quasi-judicial powers.51 In the case of the COMELEC, the COMELEC "to procure, in accordance with existing laws, by purchase,
this would limit the provision's coverage to the decisions, orders, or rulings lease, rent or other forms of acquisition, supplies, equipment, materials,
issued pursuant to its authority to be the sole judge of generally all software, facilities, and other services, from local or foreign sources free
controversies and contests relating to the elections, returns, and from taxes and import duties, subject to accounting and auditing rules
qualifications of elective offices.52 and regulation."
Consequently, Rule 64, which complemented the procedural requirement The subject matter of Smartmatic JV's protest, therefore, does not qualify
under Article IX-A, Section 7, should likewise be read in the same sense— as one necessitating the COMELEC's exercise of its adjudicatory or quasi-
that of excluding from its coverage decisions, rulings, and orders rendered judicial powers that could properly be the subject of a Rule 64 petition, but
by the COMELEC in the exercise of its administrative functions. In such is, in fact, administrative in nature. Petitioners should then have sought
instances, a Rule 65 petition for certiorari is the proper remedy. As held redress via a petition for the issuance of the extraordinary writ of certiorari
in Macabago v. COMELEC:53 under Rule 65 to assail the COMELEC en banc's June 29, 2015 Decision
[A] judgment or final order or resolution of the COMELEC may be brought granting the protest. As a caveat, however, the writ will only lie upon
by the aggrieved party to this Court on certiorari under Rule 65, as showing that the COMELEC acted capriciously or whimsically, with grave
amended, except as therein provided. We ruled in Elpidio M. Salva, et al. abuse of discretion amounting to lack or excess of jurisdiction in issuing the
vs. Hon. Roberto L. Makalintal, et al. (340 SCRA 506 (2000) that Rule 64 of Decision, such as where the power is exercised in an arbitrary or despotic
the Rules applies only to judgments or final orders of the COMELEC in the manner by reason of passion or personal hostility. The abuse of discretion
exercise of its quasi-judicial functions. The rule does not apply to must be so patent and gross as to amount to an evasion of positive duty or
interlocutory orders of the COMELEC in the exercise of its quasi-judicial to a virtual refusal to perform the duty enjoined or to act at all in
functions or to its administrative orders. In this case, the assailed order of contemplation of law.56 Mere abuse of discretion will not suffice.
the COMELEC declaring private respondents petition to be one for
annulment of the elections or for a declaration of a failure of elections in It goes without saying that petitioners' action, having been lodged through
the municipality and ordering the production of the original copies of the an improper petition, is susceptible to outright dismissal. As the Court held
in Pates v. COMELEC,57 a Rule 64 petition cannot simply be equated to Rule In Pabillo v. COMELEC,60 the Court held that the "existing laws" adverted to
65 even if it expressly refers to the latter rule.58 The clear distinction in the provision is none other than RA 9184. The law is designed to govern
between the instant, petition and Pates, however, is that in Pates, therein all cases of procurement of the national government, its departments,
petitioner failed to present an exceptional circumstance or any compelling bureaus, offices and agencies, including state universities and colleges,
reason that would have warranted the liberal application of the Rules of government-owned and/or-controlled corporations, government financial
Court. In stark contrast, herein petitioners, as will later on be discussed, institutions and local government units.61 It mandates that as a general
were able to establish a meritorious case for the relaxation of the rules, rule, all government procurement must undergo competitive bidding 62 and
relieving them from the rigid application of procedural requirements. We for purposes of conducting the bidding process, the procuring entity
therefore treat the instant recourse as one filed not merely in relation to, convenes a BAC.
but under Rule 65.
The BAC is tasked to oversee the entire procuring process, from
This brings us now to the question on where the petition ought to have advertisement of the project to its eventual award.63 It is the first to rule on
been filed. objections or complaints relating to the conduct of the bidding process,
subject to review by the head of the procuring entity via protest. As
b. Jurisdiction of the RTC over rulings of the head of the procuring entity outlined in RA 9184, the protest mechanism in procurement processes is as
relating to procurement protests follows:
ARTICLE XVII
Guilty of reiteration, the COMELEC en banc was not resolving an election PROTEST MECHANISM
controversy when it resolved the protest, but was merely performing its
function to procure the necessary election paraphernalia for the conduct Section 55. Protests on Decisions of the BAC. - Decisions of the BAC in all
of the 2016 National and Local Elections. This power finds statutory basis in stages of procurement may be protested to the head of the procuring
Sec. 12 of RA 8436,59 as amended, which reads: entity and shall be in writing. Decisions of the BAC may be protested by
SEC. 12. Procurement of Equipment and Materials. - To achieve the filing, a verified position paper and paying a non-refundable protest fee.
purpose of this Act, the Commission is authorized to procure, in The amount of the protest fee and the periods during which the protests
accordance with existing laws, by purchase, lease, rent or other forms of may be filed and resolved shall be specified in the IRR.
acquisition, supplies, equipment, materials, software, facilities, and other
service, from local or foreign sources free from taxes and import duties, Section 56. Resolution of Protests. - The protest shall be resolved strictly on
subject to accounting and auditing rules and regulation. With respect to the basis of records of the, BAC. Up to a certain amount to be specified in
the May 10, 2010 election and succeeding electoral exercises, the system the IRR, the decisions of the Head of the Procuring Entity shall be final.
procured must have demonstrated capability and been successfully used in
a prior electoral exercise here or board. Participation in the 2007 pilot Section 57. Non-interruption of the Bidding Process. - In no case shall any
exercise shall not be conclusive of the system's fitness. protest taken from any decision treated in this Article stay or delay the
bidding process. Protests must first be resolved before any award is made.
In determining the amount of any bid from a technology, software or
equipment supplier, the cost to the government of its deployment and Section 58. Resort to Regular Courts; Certiorari. - Court action may be
implementation shall be added to the bid price as integral thereto. The resorted to only after the protests contemplated in this Article shall have
value of any alternative use to which such technology, software or been completed. Cases that are filed in violation of the process specified
equipment can be put for public use shall not be deducted from the in this Article shall be dismissed for lack of jurisdiction. The regional trial
original face value of the said bid. (emphasis added) court shall have jurisdiction over final decision of the head of the
procuring entity. Court actions shall be governed by Rule 65 of the 1997
Rules of Civil Procedure.

xxxx
This provision is without prejudice to any law conferring on the Supreme
court the sole jurisdiction to issue temporary restraining orders and [T]he order of the Commission granting the award to a bidder is not an
injunctions relating to Infrastructure Projects of Government. (emphasis order rendered in a legal contrpversy before it wherein the parties filed
added) their respective pleadings and presented evidence after which the
Thus, under Sec. 58, the proper remedy to question the ruling of the head questioned order was issued; and that this order of the commission was
of the procuring entity is through a Rule 65 petition for certiorari with the issued pursuant to its authority to enter into contracts in relation to
Regional Trial Court (RTC). The term "procuring entity" is defined under the election purposes. In short, the COMELEC resolution awarding the
RA 9184 as "any branch, department, office, agency, or instrumentality of contract in favor of Acme was not issued pursuant to its quasi-judicial
the government, including state universities and colleges, government- functions but merely as an incident of its inherent administrative
owned and/or -controlled corporations, government financial functions over the conduct of elections, and hence, the said resolution
institutions, and local government units procuring Goods, Consulting may not be deemed as a "final order" reviewable by certiorari by the
Services and Infrastructure Projects."64 This statutory definition makes no Supreme Court. Being non-judicial in character, no contempt may be
distinction as to whether or not the procuring entity is a constitutional imposed by the COMELEC from said order, and no direct and exclusive
commission under Article IX of the Constitution. It is broad enough to appeal by certiorari to this Tribunal lie from such order. Any question
include the COMELEC within the contemplation of the term. Hence, under arising from said order may be well taken in an ordinary civil action
the law, grievances relating to the COMELEC rulings in protests over the before the trial courts. (emphasis added)
conduct of its project procurement should then be addressed to the RTC. Additionally, even if the Court treats the protest proceeding as part of the
procuring agency's adjudicatory function, the Court notes that Sec. 58 of
The mandatory recourse to the RTC in the appeal process applicable to RA 9184 would nevertheless apply, and the RTC would still have
COMELEC procurement project is not a novel development introduced by jurisdiction, pursuant to the proviso "unless otherwise provided by law" as
RA 9184. Even prior to the advent of the government procurement law, appearing in Article IX-A, Section 7 of the Constitution. In this case, the
the requirement already finds jurisprudential support in Filipinas pertinent law provides that insofar as rulings of the COMELEC in
Engineering and Machine Shop v. Ferrer,65 wherein the Court expounded procurement protests are concerned, said rulings can be challenged
this way: through a Rule 65 certiorari with the RTC.
[I]t has been consistently held that it is the Supreme Court, not the Court
of First Instance, which has exclusive jurisdiction to review on certiorari c. The protest mechanism under RA 9184 can only be availed of by a losing
final decisions, orders or rulings of the COMELEC relative to the conduct of bidder
elections and enforcement of election laws.
Nevertheless, the application of Sec. 58 of RA 9184 has to be qualified. It
We are however, far from convince[d] that an order of the COMELEC cannot, in all instances, be the proper remedy to question the rulings of
awarding a contract to a private party, as a result of its choice among the heads of procuring entities in procurement protests. As in the prior
various proposals submitted in response to its invitation to bid comes case of Roque v. COMELEC,66 which similarly dealt with COMELEC
within the purview of a "final order" which is exclusively and directly procurement of OMRs the Court held that only a losing bidder would be
appealable to this court on certiorari. What is contemplated by the term aggrieved by, and ergo would have the personality to challenge, the head
"final orders, rulings and decisions" of the COMELEC reviewable by of the procuring entity's ruling in the protest. This is bolstered by the GPRA
certiorari by the Supreme Court as provided by law are those rendered in IRR, which fleshed out the provisions of RA 9184 thusly:
actions or proceedings before the COMELEC and taken cognizance of by RULE XVII - PROTEST MECHANISM
the said body in the exercise of its adjudicatory or quasi-judicial powers.
Section 55. Protests on Decisions of the BAC f) The issue to be resolved; and
55.1. Decisions of the BAC at any stage of the procurement process may be g) Such other matters and information pertinent and relevant to the
questioned by filing a request for reconsideration within the three (3) proper resolution of the protest.
calendar days upon receipt of written notice or upon verbal notification.
The BAC shall decide on the request for reconsideration within seven (7) The position paper is verified by an affidavit that the affiant has read and
calendar days from receipt thereof. understood the contents thereof and that the allegations therein are true
and correct of his personal knowledge or based on authentic records. An
If a failed bidder signifies his intent to file a request for reconsideration, unverified position paper shall be considered unsigned, produces no legal
the BAC shall keep the bid envelopes of the said failed bidder unopened effect, and results to the outright dismissal of the protest.
and/or duly sealed until such time that the request for reconsideration has
been resolved. xxxx
55.2. In the event that the request for reconsideration is denied, decisions Section 58. Resort to Regular Courts; Certiorari
of the BAC may be protested in writing to the Head of the Procuring Entity:
Provided, however, That a prior request for reconsideration should have 58.1. Court action may be resorted to only after the protests
been filed by the party concerned in accordance with the preceding contemplated in this Rule shall have been completed, i.e., resolved by the
Section, and the same has been resolved. Head of the Procuring Entity with finality. The regional trial court shall have
jurisdiction over final decisions of the Head of the Procuring Entity. Court
55.3. The protest must be filed within seven (7) calendar days from actions shall be governed by Rule 65 of the 1997 Rules of Civil Procedure.
receipt by the party concerned of the resolution of the BAC denying its (emphasis added)
request for reconsideration. A protest may be made by filing a verified Evidently, the remedy of certiorari filed before the RTC under Sec. 58 of RA
position paper with the Head of the Procuring Entity concerned, 9184 is intended as a continuation of the motion for reconsideration filed
accompanied by the payment of a non-refundable protest fee. The non- before the BAC, and of the subsequent protest filed with the head of the
refundable protest fee shall be in an amount equivalent to no less than procuring entity. This is confirmed by the condition sine qua
one percent (1%) of the ABC. non completion of the process under Rule XVII, Secs. 55-57 of the GPRA IRR
before recourse to the trial courts become available.
55.4. The verified position paper shall contain the following
information:chanRoblesvirtualLawlibrary It is obvious under Sec. 55.1 of Rule XVII that only a failed bidder can turn
the cogs of the protest mechanism by first moving for reconsideration of
a) The name of bidder; the assailed BAC ruling. The party concerned, the bidder adversely
affected by the resolution of the motion, shall then have seven (7) days to
b) The office address of the bidder; file a protest with the head of the procuring entity. The prerequisite that a
protestant should likewise be a bidder is emphasized by Sec. 55.4 which
c) The name of project/contract; requires that the "name of the bidder" and the "office address of the
bidder" be indicated in its position paper. Accordingly, only the bidder
d) The implementing office/agency or procuring entity; against whom the head of the procuring entity ruled, if it would
challenge the ruling any further, is required to resort to filing a petition
e) A brief statement of facts; for certiorari before the trial courts under Sec. 58. Ego, there is neither
rhyme nor reason for petitioners herein, who are non-participants in the consequences. The strictness of the policy is designed to shield the Court
procurement project, to comply with the rules on protest under RA 9184, from having to deal with causes that are also well within the competence
part and parcel of which is the exclusivity of the jurisdiction of the RTC of the lower courts, and thus leave time to the Court to deal with the more
under Sec. 58 thereof. Stated in the alternative, there is no legislative fundamental and more essential tasks that the Constitution has assigned
enactment requiring petitioners to seek recourse first with the RTC to to it. The Court may act on petitions for the extraordinary writs of
question the COMELEC en banc's June 29, 2015 Decision. Thus, if certiorari, prohibition and mandamus only when absolutely necessary or
circumstances so warrant, direct resort to the Court will be allowed. when serious and important reasons exist to justify an exception to the
policy.
d. Hierarchy of courts and the exceptions to the doctrine Petitioners do not have the absolute and unrestrained freedom of choice
of the court to which an application for certiorari will be directed. 74 Indeed,
The expanded concept of judicial power under Article VIII, Section 1 of the referral to the Supreme Court as the court of last resort will simply be
Constitution67 includes the duty of the judiciary not only "to settle actual empty rhetoric if party-litigants are able to flout judicial hierarchy at will.
controversies involving rights which are legally demandable and The Court reserves the direct invocation of its jurisdiction only when there
enforceable" but also, as an instrument of checks and balances, "to are special and important reasons clearly and especially set out in the
determine whether or not there has been a grave abuse of discretion petition that would justify the same.75
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." 68 Under Rule 65 of the Rules of Court, In the leading case of The Diocese of Bacolod v. Comelec,76 the Court
the special civil actions for certiorari and prohibition are the available enumerated the specific instances when direct resort to this Court is
remedies for determining and correcting such grave abuses of discretion. allowed, to wit:
(a) When there are genuine issues of constitutionality that must be
The power is wielded not by the Court alone, but concurrently with the addressed at the most immediate time;
Court of Appeals and the Regional Trial Courts, as provided by law. With
respect to the Court of Appeals, Section 9 (1) of Batas Pambansa Blg. 129 (b)When the issues involved are of transcendental importance;
(BP 129) gives the appellate court original jurisdiction to issue, among
others, a writ of certiorari, whether or not in aid of its appellate (c) Cases of first impression;
jurisdiction. For the RTCs, the power to issue a writ of certiorari, in the
exercise of their original jurisdiction, is provided under Section 21 of BP (d) When the constitutional issues raised are best decided by this Court;
129.69 Additionally, the Court has already held that the CTA, by
constitutional mandate, is likewise vested with jurisdiction to issue writs of (e) When the time element presented in this case cannot be ignored;
certiorari.70 So too has the Sandiganbayan been vested with certiorari
powers in aid of its appellate jurisdiction. 71 (f) When the petition reviews the act of a constitutional organ;
Notwithstanding the non-exclusivity of the original jurisdiction over (g) When there is no other plain, speedy, and adequate remedy in the
applications for the issuance of writs of certiorari, however, the doctrine of ordinary course of law;
hierarchy of courts dictates that recourse must first be made to the lower-
ranked court exercising concurrent jurisdiction with a higher court. 72 The (h) When public welfare and the advancement of public policy so dictates,
rationale behind the principle is explained in Bañez, Jr. v. Conception73 in or when demanded by the broader interest of justice;
the following wise:
The Court must enjoin the observance of the policy on the hierarchy of (i) When the orders complained of are patent nullities; and
courts, and now affirms that the policy is not to be ignored without serious
on the substantive issues surrounding the procurement of the 23,000

(j) When appeal is considered as clearly an inappropriate remedy. additional OMRs for the 2016 elections.
The Court finds the second and fifth, and sixth grounds applicable in the
case at bar. Much has already been said of the "compelling significance The submission of an AOI is not an eligibility criterion
and the transcending public importance" of the primordial issue
underpinning petitions that assail election automation contracts: the It bears stressing on the outset that no issue has been brought forth
success and the far-reaching grim implications of the failure—of the questioning the technical capability of Smartmatic JV's 0MR+. Instead, the
nationwide automation project.77 So it is that the Court, in the growing pivotal point to be resolved herein is whether or not the COMELEC acted
number of cases concerning government procurement of election with grave abuse of discretion in declaring Smartmatic JV eligible in spite of
paraphernalia and services, has consistently exhibited leniency and the alleged nullity of, or defect in, SMTC's AOI.
dispensed of procedural requirements for petitioners to successfully lodge
certiorari petitions.78 Technicalities should not stand in the way of resolving Petitioner would first insist that the submission of an AOI is an eligibility
the substantive issues petitioners raised herein. On this same ground of requirement that Smartmatic JV cannot be deemed to have complied with.
transcendental importance, the Court may opt to treat the instant petition In addressing this assertion, a discussion of the qualification process is
as one for certiorari under, not merely in relation to, Rule 65. apropos.
As regards the fifth ground, the time element, it is sufficient to state that a. The submission of an AOI was not a pre-qualification requirement
with the 2016 polls visible in the horizon, the post-haste resolution of this
case becomes all the more imperative. It would be the height of absurdity It is a basic tenet that except only in cases in which alternative methods of
to require petitioners to undergo scrutiny through the lens of the RTC first, procurement are allowed, all government procurement shall be done by
considering that the acquisition of 23,000 OMRs would, at the minimum, competitive bidding. This is initiated by the BAC, which publishes an
affect the clustering of precincts. Without the finalized list of clustered Invitation to Bid for contracts under competitive bidding in order to ensure
precincts, the polling place for the registered voters could not yet be the widest possible dissemination thereof. 81
ascertained. Needless to state, this would impede the preparations for the
conduct of the polls and its unmitigated effects could very well lead to Answering the invitation, interested participants submit their bids using
mass disenfranchisement of voters. the forms specified in the bidding documents in two (2) separate sealed
bid envelopes submitted simultaneously. The first contains the technical
Lastly, the sixth ground is indubitably applicable. The rulings of the component of the bid, including the eligibility requirements under Section
COMELEC, as a constitutional body, can immediately be reviewed by the 23.1 of GPRA IRR, while the second contains the financial component of
Court on proper petition. As quoted in The Diocese of Bacolod v. the bid.82
COMELEC,79 citing Albano v. Arranz,80 "it is easy to realize the chaos that
would ensue if the Court of First Instance of each and every province The BAC then sets out to determine the eligibility of the prospective
were [to] arrogate itself the power to disregard, suspend, or contradict bidders based on their compliance with the eligibility requirements set
any order of the Commission on Elections: that constitutional body would forth in the Invitation to Bid and their submission of the legal, technical
be speedily reduced to impotence." and financial documents required under RA 9184 and the GPRA IRR. 83 The
first screening is done via the pre-qualification stage as governed by Sec.
In sum, there exist ample compelling reasons to justify the direct resort to 30.1 of RA 9184's IRR, which pertinently reads:
the Court as a departure from the doctrine of hierarchy of courts not in Section 30. Preliminary Examination of Bids
relation to but under Rule 65 of the Rules of Court on certiorari and
prohibition, and to brush aside the procedural issues in this case to focus 30.1. The BAC shall open the first bid envelopes of prospective bidders in
public to determine each bidder's compliance with the documents

required to be submitted for eligibility and for the technical requirements, a) Class "A" Documents
as prescribed in this IRR. For this purpose, the BAC shall check the
submitted documents of each bidder against a checklist of required Legal Documents
documents to ascertain if they are all present, using
a nondiscretionary "pass/fail" criterion, as stated in the Instructions to i) Registration certificate from SEC, Department of Trade and Industry
Bidders. If a bidder submits the required document, it shall be rated (DTI) for sole proprietorship, or CDA for cooperatives, or any proof of
"passed" for that particular requirement. In this regard, bids that fail to such registration as stated in the Bidding Documents.
include any requirement or are incomplete or patently insufficient shall be
considered as "failed". Otherwise, the BAC shall rate the said first bid ii) Mayor's permit issued by the city or municipality where the principal
envelope as "passed." (emphasis added) place of business of the prospective bidder is located.
For the procurement of highly technical goods wherein the two-stage
bidding process is employed, such as the subject of procurement in this iii) Tax clearance per Executive Order 398, Series of 2005, as finally
case, the same procedure for pre-qualification outlined above is followed reviewed and approved by the BIR.
in the first stage, except that the technical specifications are only in the
form of performance criteria, and that the technical proposals will not yet Technical Documents
include price tenders.84
iv) Statement of the prospective bidder of all its ongoing government and
Based on the rule, the BAC's function in determining the eligibility of a private contracts, including contracts awarded but not yet started, if any,
bidder during pre-qualification is ministerial in the sense that it only needs whether similar or not similar in nature and complexity to the contract to
to countercheck the completeness and sufficiency of the documents be bid; and Statement identifying the bidder's single largest completed
submitted by a bidder against a checklist of requirements. It cannot, contract similar to the contract to be bid, except under conditions
therefore, declare a bidder ineligible for failure to submit a document provided for in Section 23.5.1.3 of this IRR, within the relevant period as
which, in the first place, is not even required in the bid documents. provided in the Bidding Documents in the case of goods. All of the above
statements shall include all information required in the PBDs prescribed by
Citing Sec. 23.1 (b) of the GPRA IRR, petitioners contend that an AOI is one the GPPB.
of such mandatory documentary requirements and that the failure of a
bidder to furnish the BAG a valid one would automatically render the v) In the case of procurement of infrastructure projects, a valid Philippine
bidder ineligible. Contractors Accreditation Board (PCAB) license and registration for the
type and cost of the contract to be bid.
We are not convinced.
Financial Documents
Sec. 23 of the adverted GPRA IRR reads:
Section 23. Eligibility Requirements for the Procurement of Goods and vi) The prospective bidder's audited financial statements, showing, among
Infrastructure Projects others, the prospective bidder's total and current assets and liabilities,
stamped "received" by the BIR or its duly accredited and authorized
23.1. For purposes of determining the eligibility of bidders using the institutions, for the preceding calendar year which should not be earlier
criteria stated in Section 23.5 of this IRR, only the following documents than two (2) years from the date of bid submission.
shall be required by the BAC, using the forms prescribed in the Bidding
Documents:chanRoblesvirtualLawlibrary vii) The prospective bidder's computation for its Net Financial Contracting
Capacity (NFCC). (i) Registration certificate from the Securities and Exchange Commission
(SEC), Department of Trade and Industry (DTI) for sole proprietorships,
b) Class "B" Document and Cooperative Development Authority (CDA) for cooperatives, or
any proof of such registration as stated in the BDS;
Valid joint venture agreement (JVA), in case the joint venture is already
in existence. In the absence of a JVA, duly notarized statements from all
the potential joint venture partners stating that they will enter into and
(ii) Mayor's permit issued by the city or municipality where the principal
abide by the provisions of the JVA in the instance that the bid is
place of business of the prospective bidder is located;
successful shall be included in the bid. Failure to enter into, a joint venture
in the event of a contract award shall be ground for the forfeiture of the
bid security. Each partner of the joint venture shall submit the legal
eligibility documents. The submission of technical and financial eligibility (iii) Statement of all its ongoing and completed government and private
documents by any of the joint venture partners constitutes compliance. contracts within the period stated in the BDS, including contracts
(emphasis added) awarded but not yet started, if any. The statement shall include, for
Clearly, the quoted provisions, as couched, do not require the submission each contract, the following:
of an AOI in order for a bidder to be declared eligible. The requirement
that bears the most resemblance is the submission by each partner to the
venture of a registration certificate issued by the Securities and Exchange (111.1) name of the contract;
Commission, but compliance therewith was never disputed by the
petitioners. Moreover, it was never alleged that Smartmatic JV was remiss
in submitting a copy of its joint venture agreement pursuant to Sec. (111.2) date of the contract;
23.1(b), which petitioners specifically invoked.

It may be that the procuring entity has the option to additionally require
(111.3) kinds of Goods;
the submission of the bidders' respective AOIs in order to substantiate the
latter's claim of due registration with the government entities concerned.
However, a perusal of the bidding documents would readily reveal that the
procuring entity, the COMELEC in this case, did not impose such a (111.4) amount of contract and value of outstanding contracts;
requirement. As can be gleaned in the Instruction to Bidders, 85 only the
following documents were required for purposes of determining a bidder's
eligibility: (111.5) date of delivery; and
12. Documents Comprising the Bid: Eligibility and Technical Components

12.1. Unless otherwise indicated in the BDS, the first envelope shall (111.6) end user's acceptance or official receipt(s) issued for the
contain the following eligibility and technical contract, if completed.
documents:chanRoblesvirtualLawlibrary

(a) Eligibility Documents - (iv) Audited financial statements, stamped "received" by the Bureau of
Internal Revenue (BIR) or its duly accredited and authorized
Class "A" Documents:
institutions, for the preceding calendar year, which should not be Exchange Commission (SEC) for Corporation or Partnership; or its
earlier than two (2) years from the bid submission; equivalent documents in case of foreign bidder.
Department of Trade and Industry (DTI) for sole proprietorship; or its

equivalent documents in case of foreign bidder.
(v) NFCC computation or CLC in accordance with ITB Clause 5.5; and
Cooperative Development Authority, for Cooperatives or its

equivalent documents in case of foreign bidder.
(vi) Tax clearance per Executive Order 398, Series of 2005, as finally B. Mayor's Permit issued by the city or municipality where the principal
reviewed and approved by the BIR. (Updated pursuant to GPPB place of business of the prospective bidder is located or its equivalent
Resolution No. 21-2013 dated July 30, 2013) document in case of a foreign corporation.
Class "B" Document:
C. Tax Clearance per Executive Order 398, Series of 2005, as finally
reviewed and approved by the BIR.
(vii) If applicable, the JVA in case the joint venture is already in existence,
or duly notarized statements from all the potential joint venture II. TECHNICAL DOCUMENTS
partners stating that they will enter into and abide by the provisions
of the JVA in the instance that the bid is successful; D. Statement of all ongoing and completed government and private
contracts, within the last six (6) years from the date of submission
and receipt of bids, including contracts awarded but not yet started,
if any, using the prescribed form. Please refer to Section VIII. Bidding
(viii) Social Security Clearance (SSS); Forms.
Statement of at least one similar completed largest contract within
(ix) Department of Labor and Employment Clearance (DOLE); six (6) years from the date of the opening bids equivalent to at least
E.
50% of the ABC, using the prescribed form. Please refer to Section
VIII. Bidding Forms.
(x) Court Clearance (Regional Trial Court) (emphasis omitted) Bid security in the form, amount and validity in accordance with ITB
F.
The non-requirement of an AOI is further made evident by the Bid Data Clause 18.
Sheet (BDS)86 which provides a "complete list"87 of eligibility proposal
III. FINANCIAL DOCUMENTS
documents to be submitted during the first stage of the bidding process. As
outlined in the BDS:88 G. Audited financial statements, stamped received by the Bureau of
TAB CLASS "A" DOCUMENTS Internal Revenue (BIR) or its duly accredited and authorized
institutions, for the preceding calendar year, which should not be
I. LEGAL DOCUMENTS: earlier than two (2) years from bid submission; or equivalent
documents in case of foreign bidder, provided that the same is in
(In case of a Joint Venture, each member of the JV shall submit the required
accordance with International Financial Reporting Standards.
Documents mentioned in Tabs "A", "B", "C" and "I").
H. NFCC Computation in accordance with ITB clause 5.
A. Registration Certificate Form
TAB CLASS "B" ELIGIBILITY REQUIREMENTS
Securities and Exchange Commission from the Securities and
I. Valid Joint Venture Agreement (JVA), in case the Joint be complied with by all the JV
partners)
Venture is already in existence at the time of the submission and
opening of bids, OR duly notarized statements from all potential joint b. Original/Certified true copy of

venture partners stating that they will enter into and abide by the valid and current Mayor's/Business
provisions of the JVA if the bid is successful; Permit/License issued by the city or
municipality where the principal
IV. OTHER DOCUMENTS
place of business of the prospective
J. Conformity with the Schedule of Requirements and Initial Technical bidder is located; (In case of a JV,
Proposal (approved TOR), as enumerated and specified in Sections VI this requirement must be complied
and VII of the Bidding Documents, using the prescribed form. with by all the JV partners)
K. Certification from the Election Authority or Election Management c. Original/Certified true copy of
Body that the system has demonstrated capability and has been valid Tax Clearance per Executive
successfully used in a prior electoral exercise here or abroad. Order 398, Series of 2005 (In case of

a JV, this requirement must be
L. Omnibus Sworn Statement using the prescribed form in Section VIII. complied with by ail the JV
Even the furnished Schedule of Requirements 89 does not mandate the partners)
submission of an AOI:90
2. TECHNICAL DOCUMENTS
CORPORATION/
REQUIREMENTS JOINT VENTURE d. Sworn Statement of all its on-
SP/PARTNERSHIP
going and completed government
PASSED FAILED PASSED FAILED and private contracts within the last
six (6) years prior to the deadline
xxx
for the submission and opening of
ELIGIBILITY DOCUMENTS bids, including contracts awarded
but not yet started, if any. The
1. LEGAL DOCUMENTS statement shall include, for each of
I. Class "A" Documents the contract, the following: x x x
a. Original/Certified true copy of e. Sworn Statement of the bidder's

Registration Certificate from the single largest contract completed
Securities and Exchange within six (6) YEARS prior to the

Commission (SEC), Department of deadline for the submission and
Trade and Industry (DTI) for sole opening of bids, with a value of
proprietorship, or Cooperative FIFTY (50%) per cent of the ABC.
Development Authority (CDA) for f. The bid security (Payable to
Cooperatives or any proof of such COMELEC) shall be ' in the following
registration as stated in the BDS; (In amount: x x x
case of a JV, this requirement must
3. FINANCIAL DOCUMENTS is not fatal to a bidder's eligibility to contract the project at hand. Thus, it
cannot be considered as a ground for declaring private respondents
g. Audited Financial Statements ineligible to participate in the bidding process. To hold otherwise would
(AFS), stamped "received" by the mean allowing the BAC to consider documents beyond the checklist of
Bureau of Internal Revenue (BIR) or requirements, in contravention of their non-discretionary duty under Sec.

its duly accredited and authorized 30(l) of the GPRA IRR.
institutions, for the preceding
calendar year x x x b. Neither is the API a post-qualification requirement
h. NFCC computation which shall be
After the preliminary examination stage, the BAC opens, examines,
based only on the current assets
evaluates and ranks all bids and prepares the Abstract of Bids which
and current liabilities submitted to
contains, among others, the names of the bidders and their corresponding
the BIR, through Electronic Filing
calculated bid prices arranged from lowest to highest. The objective of the
and Payment System (EFPS)
bid evaluation is to identify the bid with the lowest calculated price or the
4. OTHERS Lowest Calculated Bid. The Lowest Calculated Bid shall then be subject to
post-qualification to determine its responsiveness to the eligibility and bid
i. Conformity with Section VI: requirements.91
Schedule of Requirements of the
Bidding Documents During post-qualification, the procuring entity verifies, validates, and
j. Conformity with Section VII. ascertains all statements made and documents submitted by the bidder
Technical Specifications of the with the lowest calculated or highest rated bid using a non-discretionary
Bidding Documents. If proposal is criteria as stated in the bidding documents. 92 If, after post-qualification, the
the same with the initial technical Lowest Calculated Bid is determined to be post-qualified, it shall be
requirements, just put "COMPLY" considered the Lowest Calculated Responsive Bid and the contract shall be
awarded to the bidder.93
k. Certification from the Election
Authority or Election management To recall, the BAC, on December 15, 2014, declared that only Smartmatic
Body that the system' has JV and Indra were eligible to participate in the second stage of the bidding

demonstrated capability and has process. Of the two, only Smartmatic JV submitted a complete and
been successfully used in a prior responsive Overall Summary of the Financial Proposal and was thus
electoral exercise here or abroad. subjected to post-qualification evaluation. Initially, the BAC post-
disqualified Smartmatic JV for allegedly failing to submit a valid AOL It is
l. OMNIBUS AFFIDAVIT in this preliminary finding that petitioners want reinstated.
accordance with Section 25.2(a)(iv)
of the IRR of RA 9184 and using the We disagree.

form prescribed in Section VIII of
the Philippine bidding Documents. Even on post-qualification, the submission of an AOI was not included as
Shall include: x x x an added requirement. The Instruction to Bidders pertinently provides: 94
Verily, based on Sec. 23.1 (b) of the GPRA IRR, the Instruction to Bidders, 29. Post-Qualification
the BDS, and the Checklist of Requirements, the non-submission of an AOI
29.1. The Procuring Entity shall determine to its satisfaction whether the
Bidder that is evaluated as having submitted the Lowest Calculated Bid
(LCB) complies with and is responsive to all the requirements and b) That it shall not demand for additional payment from COMELEC to
conditions specified in ITB Clauses 5, 12 and 13. procure additional OMR system requirements during Project
Implementation for items that it may have overlooked in its Bid
xxxx Proposal.
29.3. The determination shall be based upon an examination of the The bidder is also required to submit the machines, including the software
documentary evidence of the Bidder's qualifications submitted pursuant and hardware, back-up power supply and other equipment and peripherals
to ITB Clauses 12 and 13, as well as other information as the Procuring necessary for the conduct of the testing during post-qualification, including
Entity deems necessary and appropriate, using a non-discretionary the prototype sample of the ballot box based on what is required in the
"pass/fail" criterion. (emphasis added) Terms of Reference (TOR) for the OMR on April 6, 2015 as per instruction
Clauses 12 and 13 of the Instruction to Bidders pertain to the eligibility from the Technical Working Group (TWG).
documents, technical documents, and the financial component of a From the foregoing, the inescapable result is that mere failure to file an
participant's bid.95 Meanwhile, the Clause 5 adverted to is an enumeration AOI cannot automatically result in the bidder concerned being declared
of persons or entities who may participate in the bidding. 96 Nowhere in ineligible, contrary to petitioners' claim.
these clauses does it appear that an AOI is a mandatory requirement even
for post-qualification. Even the BAC's March 27, 2015 Notice addressed to Smartmatic JV may validly undertake the project sought to be procured
Smartmatic JV supports this finding:97
x x x [F]or purposes of post-qualification proceedings, please submit copies a. SMTC still has the authority to conduct business even after the conduct
of the following documents to the Bid and Awards Committee (BAC), of the 2010 national and local elections
through the BAC Secretariat, as stated in Clause 29.2 (a) of Section III, Bid
Data Sheet of the Bidding Documents, within three (3) calendar days from A thorough reading of petitioners' contention, however, would show that it
receipt of this Notice:chanRoblesvirtualLawlibrary is not only assailing Smartmatic JV's ineligibility based on the alleged
incompleteness of its documentary requirements i.e. for non-submission
a) Latest Income and Business Tax Returns. x x x of a valid AOI, but also because they considered the subject of the
procurement beyond the ambit of SMTCs corporate purpose. Petitioners
postulate that SMTC's authority to conduct business ceased upon
b) Certificate of PhilGEPS Registration. fulfillment of its primary purpose stated in its AOI-that of automating the
2010 National and Local Elections, and this allegedly rendered SMTC's
c) ISO 9001:2008 Certification of the Optical Mark/reader or Optical Scan subsequent involvement in the subject procurement project an ultra
manufacturer for OMR. vires act.
In addition, the following certifications must be Petitioners' myopic interpretation of SMTC's purpose is incorrect.
submitted:chanRoblesvirtualLawlibrary
While it is true that SMTC's AOI made specific mention of the automation
of the 2010 National and Local Elections as its primary purpose, it is
a) That all system requirements for customization as stated in the Terms
erroneous to interpret this as meaning that the corporation's authority to
of Reference and RA 9369 shall be fully complied with, subject to the
transact business will cease thereafter. Indeed, the contractual relation
application of applicable penalties for non-compliance; and
between SMTC and the COMELEC has been the subject of prior
controversies that haVe reached the Court, and We have on these (i.e. until the release of the performance security), and even thereafter
occasions held that even beyond the 2010 election schedule, the parties insofar as the surviving provisions of the contract are concerned. In other
remain to have subsisting rights and obligations relative to the products words, regardless of whether or not SMTC's performance security has
and services supplied by SMTC to the COMELEC for the conduct of the already been released, establishing even just one surviving provision of the
2010 polls. AES Contract would be sufficient to prove that SMTC has not yet
completed its purpose under its AOI, toppling petitioners' argument like a
For instance, the Court, in the landmark case of Capalla v. house of cards.
COMELEC (Capalla),98 upheld the validity of the March 30, 2012 Deed of
Sale by and between SMTC and COMELEC when the latter exercised the Unfortunately for petitioners, one such surviving provision has already
option to purchase (OTP) clause embodied in their 2009 Automated been duly noted by the Court in the recent case of Pabillo v.
Election System Contract (AES Contract). Even though the original deadline COMELEC (Pabillo).101 In Pabillo, the Court cited Art. 8.8 of the AES
for the option was only until December 31, 2010, We ruled that the parties Contract, which significantly reads:
to the AES Contract, pursuant to Art. 19 thereof, 99 can still validly extend 8.8 If COMELEC opts to purchase the PCOS and Consolidation and
the same by mutual agreement. The Court ratiocinated that Art. 19 of the Canvassing System (CCS), the following warranty provisions indicated in
AES Contract may still be invoked even after December 31, 2010, for the the RFP shall form part of the purchase
agreement subsisted in view of the COMELEC's failure to return SMTC's contract:chanRoblesvirtualLawlibrary
performance security, a condition for the contract's termination. As
provided under Art. 2 of the AES Contract:100 1) For PCOS, SMARTMATIC shall warrant the availability of parts, labor
Article 2 and technical support and maintenance to COMELEC for ten (10) years, if
EFFECTIVITY purchased (Item 18, Part V of the RFP), beginning May 10, 2010. Any
purchase of parts, labor and technical support and maintenance not
2.1. This Contract shall take effect upon the fulfillment of all of the covered under Article 4.3 above shall be subject to the prevailing market
following conditions:chanRoblesvirtualLawlibrary prices at the time and at such terms and conditions as may be agreed
upon. (emphasis added)
(a) Submission by the PROVIDER of the Performance Security; Pertinently, We have interpreted the foregoing contractual provision
in Pabillo in the following wise:102
(b) Signing of this Contract in seven (7) copies by the parties; and Smartmatic-TIM warrants that its parts, labor and technical support and
maintenance will be available to the COMELEC, if it so decides to purchase
(c) Receipt by the PROVIDER of the Notice to Proceed. such parts, labor and technical support and maintenance services, within
the warranty period stated, i.e., ten (10) years for the PCOS, reckoned
2.2. The Term of this Contract begins from the date of effectivity until the from May 10, 2010, or until May 10, 2020. Article 8.8 skews from the
release of the Performance Security,vithout prejudice to the surviving ordinary concept of warranty since it is a mere warranty on availability,
provisions of this Contract, including the warranty provision as prescribed which entails a subsequent purchase contract, founded upon a new
in Article 8.3 and the period of the option to purchase. (Emphasis supplied) consideration, the costs of which (unlike in the first warranty) are still to be
Based on Our ruling in Capalla, the cessation of SMTC's business cannot be paid. With Article 8.8 in place, the COMELEC is assured that it would
assumed just because the May 10, 2010 polls have already concluded. For always have access to a capable parts/service provider in Smartmatic-
clearly, SMTC's purpose—the "automation of the 2010 national and local TIM, during the 10-year warranty period therefor, on account of the
elections"—is not limited to the conduct of the election proper, but peculiar nature of the purchased goods. (emphasis added)
extends further to the fulfillment of SMTC's contractual obligations that Indubitably, the vinculum juris between COMELEC and SMTC remains solid
spring forth from the AES Contract during the lifetime of the agreement and unsevered despite the 2010 elections' inevitable conclusion. Several
contractual provisions contained in the 2009 AES Contract, as observed in information provided in the bidder's eligibility documents and bid
a review of our jurisprudence, continue to subsist and remain enforceable proposal. In the end, notwithstanding the dispensability of the AOI insofar
up to this date. Pabillo, in effect, at least guaranteed that SMTC's purpose as compliance with documentary requirements is concerned, the procuring
under its AOI will not be fulfilled until May 10, 2020. Therefore, petitioners' entity may nevertheless consider the same in ultimately determining a
theory—that SMTC no longer has a valid purpose—is flawed. Otherwise, bidder's eligibility.
there would be no way of enforcing the subsisting provisions of the
contract and of holding SMTC to its warranties after the conduct of the. Stated in the alternative, the procuring entity, for purposes of post-
May 10, 2010 elections. qualification, cannot be faulted for, as it is not precluded from, considering
information volunteered by the bidder with the highest bid. Bearing in
Having resolved the continuity of SMTC's business, We now proceed to mind the non-discretionary function of the BAC during pre-qualification, it
determine whether its participation in the bidding process is an authorized is then understandable that it is only on post-qualification, when it is
or an ultra vires act. allowed to consider other documents, during which an extensive inquiry
will be made to detect any defect in the bidder's capacity to contract.
b. The issue is mooted by the subsequent approval of the amendment to Hence, even though the submission of an AOI was not required for either
SMTC's AOI pre or post-qualification purposes, the COMELEC and BAC, on post-
qualification, may still consider the same in determining whether or not
Commissioner Guia, in his dissent, opines that a bidder should be the project is in line with the bidder's corporate purpose, and, ultimately,
authorized to participate in the bidding as early as the time the pre- in ascertaining the bidder's eligibility.
qualification was conducted, which in this case was held on December 4,
2014. Thus, the December 10, 2014 approval of SMTC's amended AOI, to In the case at bar, We take note that during the opening of the bids on
Commissioner Guia's mind, cannot cure the alleged vice attending SMTC's December 4, 2014, Smartmatic JV already informed the BAC that SMTC
submission of its bid, as a partner in Smartmatic JV, for a project that it was already in the process of amending its AOI. The contents of the AOI, at
was, at that time, unauthorized to undertake. that time, were immaterial since the AOI is not an eligibility requirement
that can be considered by the BAC on pre-qualification. By post-
The argument fails to persuade. qualification, however, the time the BAC can validly consider extraneous
documents, SMTC's AOI has already been duly amended, and the
As earlier discussed, the function of the BAC, in making an initial amendments approved by the SEC on December 10, 2014, for its updated
assessment as to the eligibility of the bidders during pre-qualification, is primary purpose to read:103
ministerial and nondiscretionary. It merely counterchecks the documents To sell, supply, lease, import, export, develop, assemble, repair and deal
submitted by the bidder against the checklist of requirements included in with automated voting machines, canvassing equipment, computer
the bid documents disseminated by the procuring agency. It cannot software, computer equipment and all other goods and supplies, and/or to
consider documents not listed in the checklist for purposes of ascertaining provide, render and deal in all kinds of services, including project
a bidder's eligibility during pre-qualification. management services for the conduct of elections, whether regular or
special, in the Philippine(s) and to provide Information and Communication
The only time the procuring agency can go beyond the checklist is during Technology (ICT) goods and services to private and government entities in
post-qualification wherein it is allowed to check to its satisfaction the the Philippines.
veracity of the information submitted to it by the bidder. To recall, Sec. Hence, any doubt on SMTC's authorization to continue its business has
29.3 of the Invitation to Bid provides that on post-qualification, the already been dispelled by December 10, 2014. It matters not that the
procuring entity may utilize any "other information as [it] may deem amendments to the AOI took effect only on that day104 for as long as it
necessary and appropriate" in order to test the accuracy of the preceded post-qualification.
2016 polls since upgrading the machines that the company supplied the
c. SMTC's participation in the bidding is not an ultra vires act but one that COMELEC for the automation of the 2010 elections and offering them for
is incidental to its corporate purpose subsequent elections is but a logical consequence of SMTC's course of
business, and should, therefore, be considered included in, if not incidental
In any event, there is merit in private respondents' argument that SMTC's to, its corporate purpose. A restricted interpretation of its purpose would
participation in the bidding is not beyond its declared corporate purpose; mean limiting SMTC's activity to that of waiting for the expiration of its
that, in the first place, there was no impediment in SMTC's AOI that could warranties in 2020. How then can the company be expected to subsist and
have prevented Smartmatic JV from participating in the project. sustain itself until then if it cannot engage in any other project, even in
those similar to what the company already performed?
To elucidate, an ultra vires act is defined under BP 68 in the following wise:
Section 45. Ultra vires acts of corporations. - No corporation under this In the final analysis, We see no defect in the AOI that needed to be cured
Code shall possess or exercise any corporate powers except those before SMTC could have participated in the bidding as a partner in
conferred by this Code or by its articles of incorporation and except such Smartmatic JV, the automation of the 2016 National and Local Elections
as are necessary or incidental to the exercise of the powers so conferred. being a logical inclusion of SMTC's corporate purpose.
(emphasis added)
The language of the Code appears to confine the term ultra vires to an act Smartmatic JV cannot be declared ineligible for SMTC's nationality
outside or beyond express, implied and incidental corporate powers.
Nevertheless, the concept can also include those acts that may ostensibly In a desperate last ditch effort to have Smartmatic JV declared ineligible to
be within such powers but are, by general or special laws, either participate in the procurement project, petitioners question the nationality
proscribed or declared illegal.105Ultra vires acts or acts which are clearly of SMTC. They direct the Court's attention to the 2013 Annual Report and
beyond the scope of one's authority are null and void and cannot be given Consolidated Financial Statements109 of Smartmatic Limited to prove that
any effect.106 SMTC is 100% foreign owned. They then contend that SMTC is the biggest
shareholder in the bidding joint venture at 46.5% share, making the joint
In determining whether or not a coiporation may perform an act, one venture less than 60% Filipino-owned and, hence, ineligible.
considers the logical and necessary relation between the act assailed and
the corporate purpose expressed by the law or in the charter, for if the act The argument is specious.
were one which is lawful in itself or not otherwise prohibited and done for
the purpose of serving corporate ends or reasonably contributes to the Clause 5 of the Instruction to Bidders provides that the following may
promotion of those ends in a substantial and not merely in a remote and participate in the bidding process:110
fanciful sense, it may be fairly considered within corporate powers. 107The 5.1. Unless otherwise provided in the BDS, the following persons shall be
test to be applied is whether the act in question is in direct and eligible to participate in the bidding:chanRoblesvirtualLawlibrary
immediate furtherance of the corporation's business, fairly incident to the
express powers and reasonably necessary to their exercise. If so, the xxxx
corporation has the power to do it; otherwise, not. 108
(e) Unless otherwise provided in the BDS, persons/entities forming
In the case at bar, notwithstanding the specific mention of the 2010 themselves into a JV, i.e., group of two (2) or more persons/entities that
National and Local Elections in SMTC's primary purpose, it is not, as earlier intend to be jointly and severally responsible or liable for a peculiar
discussed, precluded from entering into contracts over succeeding ones. contract: Provided, however, that Filipino ownership or interest of the
Here, SMTC cannot be deemed to be overstepping its limits by joint venture concerned shall be at least sixty percent (60%).
participating in the bidding for the 23,000 new optical mark readers for the
While petitioners are correct in asserting that Smartmatic JV ought to be at as of Philippine nationality.113 It is only when based on the attendant facts
least 60% Filipino-owned to qualify, they did not adduce sufficient and circumstances of the case, there is, in the mind of the Court, doubt in
evidence to prove that the joint venture did not meet the requirement. the 60-40 Filipino-equity ownership in the corporation, that it may apply
Petitioners, having alleged non-compliance, have the correlative burden of the "grandfather rule."114
proving that Smartmatic JV did not meet the requirement, but aside from
their bare allegation that SMTC is 100% foreign-owned, they did not offer Perusing SMTC's GIS115 proves useful in applying the control test. Upon
any relevant evidence to substantiate their claim. Even the 2013 financial examination, SMTC's GIS reveals that it has an authorized capital stock of
statements submitted to Court fail to impress for they pertain to the P226,000,000.00, compromised of 226,000,000 common stocks 116 at P1.00
financial standing of Smartmatic Limited,111 which is a distinct and par value, of which 100% is subscribed and paid. 117 The GIS further
separate entity from SMTC. It goes without saying that Smarmatic provides information on the stcok holders as follows: 118
Limited's nationality is irrelevant herein for it is not even a party to this NAME AMOUNT
case, and even to the joint venture. SHARES SUBSCRIBED
NATIONALI PAID
TY AND
Aside from the sheer weakness of petitioners' claim, SMTC satisfactorily CURRENT % OF
refuted the challenge to its nationality and established that it is, indeed, a RESIDENTIA TYPE NUMBER AMOUNT OWNERSH
Filipino corporation as defined under our laws. As provided in Republic Act L ADDRESS IP
No. 7042 (RA 7042), otherwise known as the Foreign Investments Act, a
Philippine corporation is defined in the following wise: 1920
Commo 135,599,9 135,599,997 677,999,997.
Section 3. Definitions. - As used in this Act:chanRoblesvirtualLawlibrary Business
n 97 .00 00
Inc.
a) The term "Philippine national" shall mean a citizen of the Philippines or a
Filipino "A"
domestic partnership or association wholly owned by citizens of the
Philippines; or a corporation organized under the laws of the Philippines King's Court
of which at least sixty percent (60%) of the capital stock outstanding and 2, 2129 60%
entitled to vote is owned and held by citizens of the Philippines; or a Don Chino
trustee of funds for pension or other employee retirement or separation
benefits, where the trustee is a Philippine national and at least sixty (60%) Roces Ave.,
of the fund will accrue to the benefit of the Philippine nationals: Provided, Makati, 135,599,9 135,599,997
TOTAL
That where a corporation and its non-Filipino stockholders own stocks in a Metro 97 .00
Securities and Exchange Commission (SEC) registered enterprise, at least Manila
sixty percent (60%) of the capital stocks outstanding and entitled to vote of Smartmatic
both corporations must be owned and held by citizens of the Philippines Commo 90,399,99 90,399,998. 451,999,998.
Internation
and at least sixty percent (60%) of the members of the Board of Directors n 8 00 00
al, Corp.
of both corporations must be citizens of the Philippines, in order that the
corporations shall be considered a Philippine national. Barbadian "B"
40%
In Narra Nickel Mining and Development, Corp. v. Redmont Consolidated
Mines, Corp.,112 the Court held that the "control test" is the prevailing 4 Stafford
House,
mode of determining whether or not a corporation is Filipino. Under the
"control test," shares belonging to corporations or partnerships at least Garisson
60% of the capital of which is owned by Filipino citizens shall be considered St.,
Michael, 90,399,99 90,399,998. Global City,

TOTAL
Barbados 8 00 Taguig
Juan C. Commo Marian Ivy
1 1.00 1.00 Commo
Villa, Jr. n F. Reyes- 1 1.00 1.00
n
Fajardo
Filipino
Filipino "A"
No. 74,
Jalan 0% 71-B 0%
Setiabakti, Tindalo St.,

MonteVista
Damansara ,
Heights,
TOTAL 1 1.00
Kuala Subdivision,
Total 1 1.00
Lumpur Marikina
Jacinto R. Commo Salvador P. Commo
1 1.00 1.00 1 1.00 1.00
Perez, Jr. n Aque n
Filipino "A" Filipino "A"
1211 2250 P. 0%

Consuelo Burgos,

St., Pasay City
Singalong,
Total 1 1.00
Manila TOTAL 1 1.00 Applying the control test, 60% of SMTC's 226,000,000 shares, that is
Alastair 135,600,000 shares, must be Filipino-owned. From the above-table, it is
Joseph Commo clear that SMTC reached this threshold amount to qualify as a Filipino-
1 1.00 1.00 owned corporation. To demonstrate, the following are SMTC's Filipino
James n
Wells investors:
NAME OF SHAREHOLDER TYPE OF SHARE NUMBER OF SHARES
British "B"
1920 Business Inc. Common "A" 135,599,997
1405 0%
Spanish Juan C. Villa, Jr. Common "B" 1

Bay,
Jacinto R. Perez, Jr. Common "A" 1
Bonifacio
Ridge, Marian Ivy F. Reyes-
Common "A" 1
1st Avenue, TOTAL 1 1.00 Fajardo
Bonifacio Salvador P. Aque Common "A" 1
TOTAL 135,600,001 WHEREFORE, in view of the foregoing, the petition is

hereby DISMISSED for lack of merit. The June 29, 2015 Decision of the
Indeed, the application of the control test would yield the result that SMTC COMELEC en banc is hereby AFFIRMED.
is a Filipino corporation. There is then no truth to petitioners' claim that
SMTC is 100% foreign-owned. Consequently, it becomes unnecessary to SO ORDERED.
confirm this finding through the grandfather rule 119 since the test is only
employed when the 60% Filipino ownership in the corporation is in
doubt.120 In this case, not even the slightest doubt is cast since the petition
is severely wanting in facts and circumstances that raise legitimate
challenges to SMTC's 60-40 Filipino ownership. The petition rested solely
on petitioners' vague assertions and baseless claims. On the other hand, Republic of the Philippines
SMTC countered by furnishing the Court a copy of its GIS providing its SUPREME COURT
shareholders' stock ownership details, and by submitting a copy of its AOI, Manila
which reserved all of SMTC's 135,600,000 class A common shares to
Filipinos121 in a bid to guarantee that when all of its shares are outstanding, EN BANC
foreign ownership will not exceed 40%.
G.R. No. 205728 January 21, 2015
Anent the nationality of the other joint venture partners, the Court defers
to the findings of the COMELEC and the BAC, and finds sufficient their THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP
declaration that Smartmatic JV is, indeed, eligible to participate in the VICENTE M. NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL
bidding process, and is in fact the bidder with the lowest calculated CAPACITY, Petitioners,
responsive bid.122 If petitioners would insist otherwise by reason of vs.
Smartmatic JV's nationality, it becomes incumbent upon them to prove COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD
that the aggregate Filipino equity of the joint venture partners—SMTC, CITY, ATTY. MAVIL V. MAJARUCON, Respondents.
Total Information Management Corporation, Smartmatic International
Holding B.V., and Jarltech International Corporation—does not comply DECISION
with the 60% Filipino equity requirement, following the oft-cited doctrine
that he who alleges must prove.123 Regrettably, one fatal flaw in LEONEN, J.:
petitioners' posture is that they challenged the nationality of SMTC alone,
which, after utilizing the control test, turned out to be a Philippine
"The Philippines is a democratic and republican State. Sovereignty resides
corporation as defined under RA 7042. There was no iota of evidence
in the people and all government authority emanates from them." – Article
presented or, at the very least, even a claim advanced that the remaining
II, Section 1, Constitution
partners are foreign-owned. There are, in fact, no other submissions
whence - this Court can inquire as to the nationalities of the other joint
venture partners. Hence, there is no other alternative for this Court other All governmental authority emanates from our people. No unreasonable
than to adopt the findings of the COMELEC and the BAC upholding restrictions of the fundamental and preferred right to expression of the
Smartmatic JV's eligibility to participate in the bidding process, subsumed electorate during political contests no matter how seemingly benign will be
in which is the joint venture and its individual partners' compliance with tolerated.
the nationality requirement.
This case defines the extent that our people may shape the debates during
elections. It is significant and of first impression. We are asked to decide
whether the Commission on Elections (COMELEC) has the competence to Party List Buhay Legarda, Loren
limit expressions made by the citizens — who are not candidates — during
elections. Party List Ang Pamilya Party List Gabriela
Party List Akbayan
Before us is a special civil action for certiorari and prohibition with
application for preliminary injunction and temporary restraining Party List Bayan Muna
order1 under Rule 65 of the Rules of Court seeking to nullify COMELEC’s
Notice to Remove Campaign Materials2 dated February 22, 2013 and Party List Anak Pawis
letter3 issued on February 27, 2013.
During oral arguments, respondents conceded that the tarpaulin was
The facts are not disputed. neither sponsored nor paid for by any candidate. Petitioners also conceded
that the tarpaulin contains names ofcandidates for the 2013 elections, but
On February 21, 2013, petitioners posted two (2) tarpaulins within a not of politicians who helped in the passage of the RH Law but were not
private compound housing the San Sebastian Cathedral of Bacolod. Each candidates for that election.
tarpaulin was approximately six feet (6') by ten feet (10') in size. They were
posted on the front walls of the cathedral within public view. The first On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her
tarpaulin contains the message "IBASURA RH Law" referring to the capacity as Election Officer of Bacolod City, issued a Notice to Remove
Reproductive Health Law of 2012 or Republic Act No. 10354. The second Campaign Materials8 addressed to petitioner Most Rev. Bishop Vicente M.
tarpaulin is the subject of the present case.4 This tarpaulin contains the Navarra. The election officer ordered the tarpaulin’s removal within three
heading "Conscience Vote" and lists candidates as either "(Anti-RH) Team (3) days from receipt for being oversized. COMELEC Resolution No. 9615
Buhay" with a check mark, or "(Pro-RH) Team Patay" with an "X" provides for the size requirement of two feet (2’) by three feet (3’). 9
mark.5 The electoral candidates were classified according to their vote on
the adoption of Republic Act No. 10354, otherwise known as the RH On February 25, 2013, petitioners replied 10 requesting, among others, that
Law.6 Those who voted for the passing of the law were classified by (1) petitioner Bishop be given a definite ruling by COMELEC Law
petitioners as comprising "Team Patay," while those who voted against it Department regarding the tarpaulin; and (2) pending this opinion and the
form "Team Buhay":7 availment of legal remedies, the tarpaulin be allowed to remain. 11
TEAM BUHAY TEAM PATAY On February 27, 2013, COMELEC Law Department issued a letter 12 ordering
the immediate removal of the tarpaulin; otherwise, it will be constrained
Estrada, JV Angara, Juan Edgardo to file an election offense against petitioners. The letter of COMELEC Law
Department was silenton the remedies available to petitioners. The letter
Honasan, Gregorio Casiño, Teddy
provides as follows:
Magsaysay, Mitos Cayetano, Alan Peter
Dear Bishop Navarra:
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis It has reached this Office that our Election Officer for this City, Atty. Mavil
Majarucon, had already given you notice on February 22, 2013 as regards
Villar, Cynthia Hontiveros, Risa the election propaganda material posted on the church vicinity promoting
for or against the candidates and party-list groups with the following certiorari and prohibition with application for preliminary injunction and
names and messages, particularly described as follows: temporary restraining order.14 They question respondents’ notice dated
February 22, 2013 and letter issued on February 27, 2013. They pray that:
Material size : six feet (6’) by ten feet (10’) (1) the petition be given due course; (2) a temporary restraining order
(TRO) and/or a writ of preliminary injunction be issued restraining
Description : FULL COLOR TARPAULIN respondents from further proceeding in enforcing their orders for the
removal of the Team Patay tarpaulin; and (3) after notice and hearing, a
decision be rendered declaring the questioned orders of respondents as
Image of : SEE ATTACHED PICTURES
unconstitutional and void, and permanently restraining respondents from
enforcing them or any other similar order. 15
Message : CONSCIENCE VOTE (ANTI RH) TEAM
After due deliberation, this court, on March 5, 2013, issued a temporary
BUHAY; (PRO RH) TEAM PATAY restraining order enjoining respondents from enforcing the assailed notice
and letter, and set oral arguments on March 19, 2013. 16
Location : POSTED ON THE CHURCH VICINITY
OF THE DIOCESE OF BACOLOD CITY On March 13, 2013, respondents filed their comment 17 arguing that (1) a
petition for certiorari and prohibition under Rule 65 of the Rules of Court
The three (3) – day notice expired on February 25, 2013. filed before this court is not the proper remedy to question the notice and
letter of respondents; and (2) the tarpaulin is an election propaganda
Considering that the above-mentioned material is found to be in violation subject to regulation by COMELEC pursuant to its mandate under Article
of Comelec Resolution No. 9615 promulgated on January 15, 2013 IX-C, Section 4 of the Constitution. Hence, respondents claim that the
particularly on the size (even with the subsequent division of the said issuances ordering its removal for being oversized are valid and
tarpaulin into two), as the lawful size for election propaganda material is constitutional.18
only two feet (2’) by three feet (3’), please order/cause the immediate
removal of said election propaganda material, otherwise, we shall be During the hearing held on March 19, 2013, the parties were directed to
constrained to file an election offense case against you. file their respective memoranda within 10 days or by April 1, 2013, taking
into consideration the intervening holidays. 19
We pray that the Catholic Church will be the first institution to help the
Commission on Elections inensuring the conduct of peaceful, orderly, The issues, which also served as guide for the oral arguments, are: 20
honest and credible elections.
I.
Thank you and God Bless!
WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER
[signed] MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW
ATTY. ESMERALDA AMORA-LADRA DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL
Director IV13 ORDERS/RESOLUTIONS OF THE COMELEC WHICH WOULD WARRANT A
REVIEW OF THIS COURT VIA RULE 65 PETITION[;]
Concerned about the imminent threatof prosecution for their exercise of
free speech, petitioners initiated this case through this petition for
A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN
COURTS DOCTRINE AND JURISPRUDENTIAL RULES VIOLATES THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH
GOVERNING APPEALS FROM COMELEC DECISIONS; AND STATE.
B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED I

ORDERS ARE NOT CONSIDERED JUDGMENTS/FINAL PROCEDURAL ISSUES
ORDERS/RESOLUTIONS OF THE COMELEC, WHETHER
THERE ARE EXCEPTIONAL CIRCUMSTANCES WHICH I.A
WOULD ALLOW THIS COURT TO TAKE COGNIZANCE OF
THE CASE[;] This court’s jurisdiction over COMELEC cases
II. Respondents ask that this petition be dismissed on the ground that the
notice and letter are not final orders, decisions, rulings, or judgments of
WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS ARE the COMELEC En Banc issued in the exercise of its adjudicatory powers,
"POLITICAL ADVERTISEMENT" OR "ELECTION PROPAGANDA" CONSIDERING reviewable via Rule 64 of the Rules of Court. 21
THAT PETITIONER IS NOT A POLITICAL CANDIDATE[;]
Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is
III. applicable especially to raise objections relating to a grave abuse of
discretion resulting in the ouster of jurisdiction. 22 As a special civil action,
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED there must also be a showing that there be no plain, speedy, and adequate
SPEECH), OR ELECTION PROPAGANDA/POLITICAL ADVERTISEMENT[;] remedy in the ordinary course of the law.
A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A Respondents contend that the assailed notice and letter are not subject to
FORM OF EXPRESSION, WHETHER THE COMELEC review by this court, whose power to review is "limited only to final
POSSESSES THE AUTHORITY TO REGULATE THE SAME[;] decisions, rulings and orders of the COMELEC En Banc rendered in the
exercise of its adjudicatory or quasi-judicial power." 23 Instead, respondents
B. WHETHER THIS FORM OF EXPRESSION MAY BE claim that the assailed notice and letter are reviewable only by COMELEC
REGULATED[;] itself pursuant to Article IX-C, Section 2(3) of the Constitution 24 on
COMELEC’s power to decide all questions affecting
IV. elections.25 Respondents invoke the cases of Ambil, Jr. v. COMELEC, 26 Repol
v. COMELEC,27 Soriano, Jr. v. COMELEC,28 Blanco v. COMELEC,29 and
Cayetano v. COMELEC,30 to illustrate how judicialintervention is limited to
WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER
final decisions, orders, rulings and judgments of the COMELEC En Banc. 31
MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW
DEPARTMENT VIOLATES THE PRINCIPLE OF SEPARATION OF CHURCH AND
STATE[;] [AND] These cases are not applicable.
V. In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of

Eastern Samar filed the election protest. 32 At issue was the validity of the
promulgation of a COMELEC Division resolution. 33 No motion for
reconsideration was filed to raise this issue before the COMELEC En Banc. 4) The decision or resolution sought tobe set aside is a nullity; or
This court declared that it did not have jurisdiction and clarified:
5) The need for relief is extremely urgent and certiorari is the only
We have interpreted [Section 7, Article IX-A of the Constitution] 34 to mean adequate and speedy remedy available.
final orders, rulings and decisionsof the COMELEC rendered in the exercise
of its adjudicatory or quasi-judicial powers." This decision must be a final Ultimately, this court took jurisdiction in Repoland decided that the status
decision or resolution of the Comelec en banc, not of a division, certainly quo anteorder issued by the COMELEC Division was unconstitutional.
not an interlocutory order of a division.The Supreme Court has no power
to review viacertiorari, an interlocutory order or even a final resolution of a Respondents also cite Soriano, Jr. v. COMELEC.This case was also an
Division of the Commission on Elections.35 (Emphasis in the original, election protest case involving candidates for the city council of
citations omitted) Muntinlupa City.41 Petitioners in Soriano, Jr.filed before this court a
petition for certiorari against an interlocutory order of the COMELEC First
However, in the next case cited by respondents, Repol v. COMELEC, this
court provided exceptions to this general rule. Repolwas another election Division.42 While the petition was pending in this court, the COMELEC First
protest case, involving the mayoralty elections in Pagsanghan, Division dismissed the main election protest case.43 Sorianoapplied the
Samar.36 This time, the case was brought to this court because the general rule that only final orders should be questioned with this court.
COMELEC First Division issued a status quo ante order against the Regional The ponencia for this court, however, acknowledged the exceptions to the
Trial Court executing its decision pending appeal. 37 This court’s ponencia general rule in ABS-CBN.44
discussed the general rule enunciated in Ambil, Jr. that it cannot take
jurisdiction to review interlocutory orders of a COMELEC
Blanco v. COMELEC, another case cited by respondents, was a
Division.38 However, consistent with ABS-CBN Broadcasting Corporation v.
disqualification case of one of the mayoralty candidates of Meycauayan,
COMELEC,39 it clarified the exception:
Bulacan.45 The COMELEC Second Division ruled that petitioner could not
qualify for the 2007 elections due to the findings in an administrative case
This Court, however, has ruled in the past that this procedural requirement that he engaged in vote buying in the 1995 elections.46 No motion for
[of filing a motion for reconsideration] may be glossed over to prevent reconsideration was filed before the COMELEC En Banc. This court,
miscarriage of justice, when the issue involves the principle of social justice however, took cognizance of this case applying one of the exceptions in
or the protection of labor, when the decision or resolution sought to be set ABS-CBN: The assailed resolution was a nullity. 47
aside is a nullity, or when the need for relief is extremely urgent and
certiorari is the only adequate and speedy remedy available. 40
Finally, respondents cited Cayetano v. COMELEC, a recent election protest
case involving the mayoralty candidates of Taguig City. 48 Petitioner assailed
Based on ABS-CBN, this court could review orders and decisions of a resolution of the COMELEC denying her motion for reconsideration to
COMELEC — in electoral contests — despite not being reviewed by the dismiss the election protest petition for lack of form and substance. 49 This
COMELEC En Banc, if: court clarified the general rule and refused to take cognizance of the
review of the COMELEC order. While recognizing the exceptions in ABS-
1) It will prevent the miscarriage of justice; CBN, this court ruled that these exceptions did not apply. 50
2) The issue involves a principle of social justice; Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents
do not operate as precedents to oust this court from taking jurisdiction
3) The issue involves the protection of labor; over this case. All these cases cited involve election protests or
disqualification cases filed by the losing candidate against the winning concerned with the sovereign right to change the contours of power
candidate. whether through the election of representatives in a republican
government or the revision of the basic text of the Constitution. The zeal
In the present case, petitioners are not candidates seeking for public office. with which we protect this kind of speech does not depend on our
Their petition is filed to assert their fundamental right to expression. evaluation of the cogency of the message. Neither do we assess whether
we should protect speech based on the motives of COMELEC. We evaluate
Furthermore, all these cases cited by respondents pertained to COMELEC’s restrictions on freedom of expression from their effects. We protect both
exercise of its adjudicatory or quasi-judicial power. This case pertains to speech and medium because the quality of this freedom in practice will
acts of COMELEC in the implementation of its regulatory powers. When it define the quality of deliberation in our democratic society.
issued the notice and letter, the COMELEC was allegedly enforcingelection
laws. COMELEC’s notice and letter affect preferred speech. Respondents’ acts
are capable of repetition. Under the conditions in which it was issued and
I.B in view of the novelty of this case,it could result in a "chilling effect" that
would affect other citizens who want their voices heard on issues during
the elections. Other citizens who wish to express their views regarding the
Rule 65, grave abuse of discretion,
election and other related issues may choose not to, for fear of reprisal or
sanction by the COMELEC. Direct resort to this court is allowed to avoid
and limitations on political speech such proscribed conditions. Rule 65 is also the procedural platform for
raising grave abuse of discretion.
The main subject of thiscase is an alleged constitutional violation: the
infringement on speech and the "chilling effect" caused by respondent Both parties point to constitutional provisions on jurisdiction. For
COMELEC’s notice and letter. petitioners, it referred to this court’s expanded exercise of certiorari as
provided by the Constitution as follows:
Petitioners allege that respondents committed grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the notice 51 dated Judicial power includes the duty of the courts of justice to settle actual
February 22,2013 and letter52 dated February 27, 2013 ordering the controversies involving rights which are legally demandable and
removal of the tarpaulin.53 It is their position that these infringe on their enforceable, and to determine whether ornot there has been a grave
fundamental right to freedom of expression and violate the principle of abuse of discretion amounting to lack or excess of jurisdiction on the part
separation of church and state and, thus, are unconstitutional. 54 of any branch or instrumentality of the Government. 56 (Emphasis supplied)
The jurisdiction of this court over the subject matter is determined from On the other hand, respondents relied on its constitutional mandate to
the allegations in the petition. Subject matter jurisdiction is defined as the decide all questions affectingelections. Article IX-C, Section 2(3) of the
authority "to hear and determine cases of the general class to which the Constitution, provides:
proceedings in question belong and is conferred by the sovereign authority
which organizes the court and defines its powers." 55 Definitely, the subject
Sec. 2. The Commission on Elections shall exercise the following powers
matter in this case is different from the cases cited by respondents.
and functions:
Nothing less than the electorate’s political speech will be affected by the
....
restrictions imposed by COMELEC. Political speech is motivated by the
desire to be heard and understood, to move people to action. It is
(3) Decide, except those involving the right to vote, all questions affecting It will, thus, be manifest injustice if the court does not take jurisdiction
elections, including determination of the number and location of polling over this case.
places, appointment of election officials and inspectors, and registration of
voters. I.C
Respondents’ reliance on this provision is misplaced. Hierarchy of courts
We are not confronted here with the question of whether the COMELEC, in This brings us to the issue of whether petitioners violated the doctrine of
its exercise of jurisdiction, gravely abused it. We are confronted with the hierarchy of courts in directly filing their petition before this court.
question as to whether the COMELEC had any jurisdiction at all with its
acts threatening imminent criminal action effectively abridging meaningful Respondents contend that petitioners’ failure to file the proper suit with a
political speech. lower court of concurrent jurisdiction is sufficient ground for the dismissal
of their petition.57 They add that observation of the hierarchy of courts is
It is clear that the subject matter of the controversy is the effect of compulsory, citing Heirs of Bertuldo Hinog v. Melicor.58 While respondents
COMELEC’s notice and letter on free speech. This does not fall under claim that while there are exceptions to the general rule on hierarchy of
Article IX-C, Section 2(3) of the Constitution. The use of the word courts, none of these are present in this case.59
"affecting" in this provision cannot be interpreted to mean that COMELEC
has the exclusive power to decide any and allquestions that arise during On the other hand, petitioners cite Fortich v. Corona 60 on this court’s
elections. COMELEC’s constitutional competencies during elections should discretionary power to take cognizance of a petition filed directly to it if
not operate to divest this court of its own jurisdiction. warranted by "compelling reasons, or [by] the nature and importance of
the issues raised. . . ."61 Petitioners submit that there are "exceptional and
The more relevant provision for jurisdiction in this case is Article VIII, compelling reasons to justify a direct resort [with] this Court." 62
Section 5(1) of the Constitution.This provision provides for this court’s
original jurisdiction over petitions for certiorari and prohibition. This should In Bañez, Jr. v. Concepcion,63 we explained the necessity of the application
be read alongside the expanded jurisdiction of the court in Article VIII, of the hierarchy of courts:
Section 1 of the Constitution.
The Court must enjoin the observance of the policy on the hierarchy of
Certainly, a breach of the fundamental right of expression by COMELEC is courts, and now affirms that the policy is not to be ignored without serious
grave abuse of discretion. Thus, the constitutionality of the notice and consequences. The strictness of the policy is designed to shield the Court
letter coming from COMELEC is within this court’s power to review. from having to deal with causes that are also well within the competence
of the lower courts, and thus leave time to the Court to deal with the more
During elections, we have the power and the duty to correct any grave fundamental and more essential tasks that the Constitution has assigned
abuse of discretion or any act tainted with unconstitutionality on the part to it. The Court may act on petitions for the extraordinary writs of
of any government branch or instrumentality. This includes actions by the certiorari, prohibition and mandamus only when absolutely necessary or
COMELEC. Furthermore, it is this court’s constitutional mandate to protect when serious and important reasons exist to justify an exception to the
the people against government’s infringement of their fundamental rights. policy.64
This constitutional mandate out weighs the jurisdiction vested with the
COMELEC.
In Bañez, we also elaborated on the reasons why lower courts are allowed collegiate in nature. This nature ensures more standpoints in the review of
to issue writs of certiorari, prohibition, and mandamus, citing Vergara v. the actions of the trial court. But the Court of Appeals also has original
Suelto:65 jurisdiction over most special civil actions. Unlike the trial courts, its writs
can have a nationwide scope. It is competent to determine facts and,
The Supreme Court is a court of lastresort, and must so remain if it is to ideally, should act on constitutional issues thatmay not necessarily be
satisfactorily perform the functions assigned to it by the fundamental novel unless there are factual questions to determine.
charter and immemorial tradition. It cannot and should not be burdened
with the task of dealing with causes in the first instance. Its original This court, on the other hand, leads the judiciary by breaking new ground
jurisdiction to issue the so-called extraordinary writs should be exercised or further reiterating — in the light of new circumstances or in the light of
only where absolutely necessary or where serious and important reasons some confusions of bench or bar — existing precedents. Rather than a
exist therefore. Hence, that jurisdiction should generally be exercised court of first instance or as a repetition of the actions of the Court of
relative to actions or proceedings before the Court of Appeals, or before Appeals, this court promulgates these doctrinal devices in order that it
constitutional or other tribunals, bodies or agencies whose acts for some truly performs that role.
reason or another are not controllable by the Court of Appeals. Where the
issuance of an extraordinary writ is also within the competence of the In other words, the Supreme Court’s role to interpret the Constitution and
Court of Appeals or a Regional Trial Court, it is in either of these courts that act in order to protect constitutional rights when these become exigent
the specific action for the writ’s procurement must be presented. This is should not be emasculated by the doctrine in respect of the hierarchy of
and should continue to be the policy in this regard, a policy that courts and courts. That has never been the purpose of such doctrine.
lawyers must strictly observe.66 (Emphasis omitted)
Thus, the doctrine of hierarchy of courts is not an iron-clad rule. 68 This
The doctrine that requires respect for the hierarchy of courts was created court has "full discretionary power to take cognizance and assume
by this court to ensure that every level of the judiciary performs its jurisdiction [over] special civil actions for certiorari . . .filed directly with it
designated roles in an effective and efficient manner. Trial courts do not for exceptionally compelling reasons69 or if warranted by the nature of the
only determine the facts from the evaluation of the evidence presented issues clearly and specifically raised in the petition." 70 As correctly pointed
before them. They are likewise competent to determine issues of law out by petitioners,71 we have provided exceptions to this doctrine:
which may include the validity of an ordinance, statute, or even an
executive issuance in relation to the Constitution. 67 To effectively perform First, a direct resort to this court is allowed when there are genuine issues
these functions, they are territorially organized into regions and then into of constitutionality that must be addressed at the most immediate time. A
branches. Their writs generally reach within those territorial boundaries. direct resort to this court includes availing of the remedies of certiorari and
Necessarily, they mostly perform the all-important task of inferring the prohibition toassail the constitutionality of actions of both legislative and
facts from the evidence as these are physically presented before them. In executive branches of the government.72
many instances, the facts occur within their territorial jurisdiction, which
properly present the ‘actual case’ that makes ripe a determination of the
In this case, the assailed issuances of respondents prejudice not only
constitutionality of such action. The consequences, of course, would be
petitioners’ right to freedom of expression in the present case, but also of
national in scope. There are, however, some cases where resort to courts
others in future similar cases. The case before this court involves an active
at their level would not be practical considering their decisions could still
effort on the part of the electorate to reform the political landscape. This
be appealed before the higher courts, such as the Court of Appeals.
has become a rare occasion when private citizens actively engage the
public in political discourse. To quote an eminent political theorist:
The Court of Appeals is primarily designed as an appellate court that
reviews the determination of facts and law made by the trial courts. It is
[T]he theory of freedom of expression involves more than a technique for Third, cases of first impression75 warrant a direct resort to this court. In
arriving at better social judgments through democratic procedures. It cases of first impression, no jurisprudence yet exists that will guide the
comprehends a vision of society, a faith and a whole way of life. The theory lower courts on this matter. In Government of the United States v.
grew out of an age that was awakened and invigorated by the idea of new Purganan,76 this court took cognizance of the case as a matter of first
society in which man's mind was free, his fate determined by his own impression that may guide the lower courts:
powers of reason, and his prospects of creating a rational and enlightened
civilization virtually unlimited. It is put forward as a prescription for In the interest of justice and to settle once and for all the important issue
attaining a creative, progressive, exciting and intellectually robust of bail in extradition proceedings, we deem it best to take cognizance of
community. It contemplates a mode of life that, through encouraging the present case. Such proceedings constitute a matter of first impression
toleration, skepticism, reason and initiative, will allow man to realize his over which there is, as yet, no local jurisprudence to guide lower courts. 77
full potentialities.It spurns the alternative of a society that is tyrannical,
conformist, irrational and stagnant.73 This court finds that this is indeed a case of first impression involving as it
does the issue of whether the right of suffrage includes the right of
In a democracy, the citizen’s right tofreely participate in the exchange of freedom of expression. This is a question which this court has yet to
ideas in furtherance of political decision-making is recognized. It deserves provide substantial answers to, through jurisprudence. Thus, direct resort
the highest protection the courts may provide, as public participation in to this court is allowed.
nation-building isa fundamental principle in our Constitution. As such, their
right to engage in free expression of ideas must be given immediate Fourth, the constitutional issues raisedare better decided by this court. In
protection by this court. Drilon v. Lim,78 this court held that:
A second exception is when the issuesinvolved are of transcendental . . . it will be prudent for such courts, if only out of a becoming modesty, to
importance.74 In these cases, the imminence and clarity of the threat to defer to the higher judgmentof this Court in the consideration of its
fundamental constitutional rights outweigh the necessity for prudence. validity, which is better determined after a thorough deliberation by a
The doctrine relating to constitutional issues of transcendental importance collegiate body and with the concurrence of the majority of those who
prevents courts from the paralysis of procedural niceties when clearly participated in its discussion.79 (Citation omitted)
faced with the need for substantial protection.
In this case, it is this court, with its constitutionally enshrined judicial
In the case before this court, there is a clear threat to the paramount right power, that can rule with finality on whether COMELEC committed grave
of freedom of speech and freedom of expression which warrants abuse of discretion or performed acts contrary to the Constitution through
invocation of relief from this court. The principles laid down in this decision the assailed issuances.
will likely influence the discourse of freedom of speech in the future,
especially in the context of elections. The right to suffrage not only
Fifth, the time element presented in this case cannot be ignored. This case
includes the right to vote for one’s chosen candidate, but also the right to
was filed during the 2013 election period. Although the elections have
vocalize that choice to the public in general, in the hope of influencing
already been concluded, future cases may be filed that necessitate urgency
their votes. It may be said that in an election year, the right to vote
in its resolution. Exigency in certain situations would qualify as an
necessarily includes the right to free speech and expression. The
exception for direct resort to this court.
protection of these fundamental constitutional rights, therefore, allows for
the immediate resort to this court.
Sixth, the filed petition reviews the act of a constitutional organ. COMELEC
is a constitutional body. In Albano v. Arranz,80 cited by petitioners, this
court held that "[i]t is easy to realize the chaos that would ensue if the hierarchy of courts is respected, the present case falls under the
Court of First Instance ofeach and every province were [to] arrogate itself recognized exceptions and, as such, may be resolved by this court directly.
the power to disregard, suspend, or contradict any order of the
Commission on Elections: that constitutional body would be speedily I.D
reduced to impotence."81
The concept of a political question
In this case, if petitioners sought to annul the actions of COMELEC through
pursuing remedies with the lower courts, any ruling on their part would Respondents argue further that the size limitation and its reasonableness
not have been binding for other citizens whom respondents may place in is a political question, hence not within the ambit of this court’s power of
the same situation. Besides, thiscourt affords great respect to the review. They cite Justice Vitug’s separate opinion in Osmeña v.
Constitution and the powers and duties imposed upon COMELEC. Hence, a COMELEC86 to support their position:
ruling by this court would be in the best interest of respondents, in order
that their actions may be guided accordingly in the future.
It might be worth mentioning that Section 26, Article II, of the Constitution
also states that the "State shall guarantee equal access to opportunities for
Seventh, petitioners rightly claim that they had no other plain, speedy, and public service, and prohibit political dynasties as may be defined by law." I
adequate remedy in the ordinary course of law that could free them from see neither Article IX (C)(4) nor Section 26, Article II, of the Constitution to
the injurious effects of respondents’ acts in violation of their right to be all that adversarial or irreconcilably inconsistent with the right of free
freedom of expression. expression. In any event, the latter, being one of general application, must
yield to the specific demands of the Constitution. The freedom of
In this case, the repercussions of the assailed issuances on this basic right expression concededly holds, it is true, a vantage point in hierarchy of
constitute an exceptionally compelling reason to justify the direct resort to constitutionally-enshrined rights but, like all fundamental rights, it is not
this court. The lack of other sufficient remedies in the course of law alone without limitations.
is sufficient ground to allow direct resort to this court.
The case is not about a fight between the "rich" and the "poor" or between
Eighth, the petition includes questionsthat are "dictated by public welfare the "powerful" and the "weak" in our society but it is to me a genuine
and the advancement of public policy, or demanded by the broader attempt on the part of Congress and the Commission on Elections to
interest of justice, or the orders complained of were found to be patent ensure that all candidates are given an equal chance to media coverage
nullities, or the appeal was consideredas clearly an inappropriate and thereby be equally perceived as giving real life to the candidates’ right
remedy."82 In the past, questions similar to these which this court ruled on of free expression rather than being viewed as an undue restriction of that
immediately despite the doctrine of hierarchy of courts included citizens’ freedom. The wisdom in the enactment of the law, i.e., that which the
right to bear arms,83 government contracts involving modernization of legislature deems to be best in giving life to the Constitutional mandate, is
voters’ registration lists,84 and the status and existence of a public office.85 not for the Court to question; it is a matter that lies beyond the normal
prerogatives of the Court to pass upon.87
This case also poses a question of similar, if not greater import. Hence, a
direct action to this court is permitted. This separate opinion is cogent for the purpose it was said. But it is not in
point in this case.
It is not, however, necessary that all of these exceptions must occur at the
same time to justify a direct resort to this court. While generally, the The present petition does not involve a dispute between the rich and poor,
or the powerful and weak, on their equal opportunities for media coverage
of candidates and their right to freedom of expression. This case concerns through the expanded jurisdiction granted to this court through Article VIII,
the right of petitioners, who are non-candidates, to post the tarpaulin in Section 1 of the Constitution.
their private property, asan exercise of their right of free expression.
Despite the invocation of the political question doctrine by respondents, A political question arises in constitutional issues relating to the powers or
this court is not proscribed from deciding on the merits of this case. competence of different agencies and departments of the executive or
those of the legislature. The political question doctrine is used as a defense
In Tañada v. Cuenco,88 this court previously elaborated on the concept of when the petition asks this court to nullify certain acts that are exclusively
what constitutes a political question: within the domain of their respective competencies, as provided by the
Constitution or the law. In such situation, presumptively, this court should
What is generally meant, when it is said that a question is political, and not act with deference. It will decline to void an act unless the exercise of that
judicial, is that it is a matter which is to be exercised by the people in their power was so capricious and arbitrary so as to amount to grave abuse of
primary political capacity, or that it has been specifically delegated to some discretion.
other department or particular officer of the government,
withdiscretionary power to act.89 (Emphasis omitted) The concept of a political question, however, never precludes judicial
review when the act of a constitutional organ infringes upon a
It is not for this court to rehearse and re-enact political debates on what fundamental individual or collective right. Even assuming arguendo that
the text of the law should be. In political forums, particularly the the COMELEC did have the discretion to choose the manner of regulation
legislature, the creation of the textof the law is based on a general of the tarpaulin in question, it cannot do so by abridging the fundamental
discussion of factual circumstances, broadly construed in order to allow for right to expression.
general application by the executive branch. Thus, the creation of the law
is not limited by particular and specific facts that affect the rights of certain Marcos v. Manglapus90 limited the use of the political question doctrine:
individuals, per se.
When political questions are involved, the Constitution limits the
Courts, on the other hand, rule on adversarial positions based on existing determination to whether or not there has been a grave abuse of
facts established on a specific case-to-case basis, where parties affected by discretion amounting to lack or excess of jurisdiction on the part of the
the legal provision seek the courts’ understanding of the law. official whose action is being questioned. If grave abuse is not established,
the Court will not substitute its judgment for that of the official concerned
The complementary nature of the political and judicial branches of and decide a matter which by its nature or by law is for the latter alone to
government is essential in order to ensure that the rights of the general decide.91
public are upheld at all times. In order to preserve this balance, branches
of government must afford due respectand deference for the duties and How this court has chosen to address the political question doctrine has
functions constitutionally delegated to the other. Courts cannot rush to undergone an evolution since the timethat it had been first invoked in
invalidate a law or rule. Prudence dictates that we are careful not to veto Marcos v. Manglapus. Increasingly, this court has taken the historical and
political acts unless we can craft doctrine narrowly tailored to the social context of the case and the relevance of pronouncements of
circumstances of the case. carefully and narrowly tailored constitutional doctrines. This trend was
followed in cases such as Daza v. Singson92 and Coseteng v. Mitra Jr.93
The case before this court does not call for the exercise of prudence or
modesty. There is no political question. It can be acted upon by this court Daza and Coseteng involved a question as to the application of Article VI,
Section 18 of the 1987 Constitution involving the removal of petitioners
from the Commission on Appointments. In times past, this would have The concept of judicial power in relation to the concept of the political
involved a quint essentially political question as it related to the question was discussed most extensively in Francisco v. HRET. 99 In this
dominance of political parties in Congress. However, in these cases, this case, the House of Representatives arguedthat the question of the validity
court exercised its power of judicial review noting that the requirement of of the second impeachment complaint that was filed against former Chief
interpreting the constitutional provision involved the legality and not the Justice Hilario Davide was a political question beyond the ambit of this
wisdom of a manner by which a constitutional duty or power was court. Former Chief Justice Reynato Puno elaborated on this concept in his
exercised. This approach was again reiterated in Defensor Santiago v. concurring and dissenting opinion:
Guingona, Jr.94
To be sure, the force to impugn the jurisdiction of this Court becomes
In Integrated Bar of the Philippines v. Zamora, 95 this court declared again more feeble in light of the new Constitution which expanded the definition
that the possible existence ofa political question did not bar an of judicial power as including "the duty of the courts of justice to settle
examination of whether the exercise of discretion was done with grave actual controversies involving rights which are legally demandable and
abuse of discretion. In that case, this court ruled on the question of enforceable, and to determine whether or not there has been a grave
whether there was grave abuse of discretion in the President’s use of his abuse of discretion amounting to lack or excess of jurisdiction on the part
power to call out the armed forces to prevent and suppress lawless of any branch or instrumentality of the Government." As well observed by
violence. retired Justice Isagani Cruz, this expanded definition of judicial power
considerably constricted the scope of political question. He opined that the
In Estrada v. Desierto,96 this court ruled that the legal question as to language luminously suggests that this duty (and power) is available even
whether a former President resigned was not a political question even if against the executive and legislative departments including the President
the consequences would be to ascertain the political legitimacy of a and the Congress, in the exercise of their discretionary
successor President. powers.100 (Emphasis in the original, citations omitted)
Many constitutional cases arise from political crises. The actors in such Francisco also provides the cases which show the evolution of the political
crises may use the resolution of constitutional issues as leverage. But the question, as applied in the following cases:
expanded jurisdiction of this court now mandates a duty for it to exercise
its power of judicial review expanding on principles that may avert In Marcos v. Manglapus, this Court, speaking through Madame Justice
catastrophe or resolve social conflict. Irene Cortes, held: The present Constitution limits resort to the political
question doctrine and broadens the scope of judicial inquiry into areas
This court’s understanding of the political question has not been static or which the Court,under previous constitutions, would have normally left to
unbending. In Llamas v. Executive Secretary Oscar Orbos,97 this court held: the political departments to decide. x x x
While it is true that courts cannot inquire into the manner in which the In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro
President's discretionary powers are exercised or into the wisdom for its Padilla, this Court declared:
exercise, it is also a settled rule that when the issue involved concerns the
validity of such discretionary powers or whether said powers are within The "allocation of constitutional boundaries" is a task that this Court must
the limits prescribed by the Constitution, We will not decline to exercise perform under the Constitution. Moreover, as held in a recent case, "(t)he
our power of judicial review. And such review does not constitute a political question doctrine neither interposes an obstacle to judicial
modification or correction of the act of the President, nor does it determination of the rival claims. The jurisdiction to delimit constitutional
constitute interference with the functions of the President. 98 boundaries has been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by no means Respondents allege that petitioners violated the principle of exhaustion of
does away with the applicability of the principle in appropriate cases." administrative remedies. Respondents insist that petitioners should have
(Emphasis and italics supplied) first brought the matter to the COMELEC En Banc or any of its divisions. 102
And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court Respondents point out that petitioners failed to comply with the
ruled: requirement in Rule 65 that "there is no appeal, or any plain, speedy, and
adequate remedy in the ordinary course of law."103 They add that the
In the case now before us, the jurisdictional objection becomes even less proper venue to assail the validity of the assailed issuances was in the
tenable and decisive. The reason is that, even if we were to assume that course of an administrative hearing to be conducted by COMELEC. 104 In the
the issue presented before us was political in nature, we would still not be event that an election offense is filed against petitioners for posting the
precluded from resolving it under the expanded jurisdiction conferred tarpaulin, they claim that petitioners should resort to the remedies
upon us that now covers, in proper cases, even the political question.x x x prescribed in Rule 34 of the COMELEC Rules of Procedure. 105
(Emphasis and italics supplied.)
The argument on exhaustion of administrative remedies is not proper in
.... this case.
In our jurisdiction, the determination of whether an issue involves a truly Despite the alleged non-exhaustion of administrative remedies, it is clear
political and non-justiciable question lies in the answer to the question of that the controversy is already ripe for adjudication. Ripeness is the
whether there are constitutionally imposed limits on powers or functions "prerequisite that something had by then been accomplished or
conferred upon political bodies. If there are, then our courts are duty- performed by either branch [or in this case, organ of government] before a
bound to examine whether the branch or instrumentality of the court may come into the picture."106
government properly acted within such limits. 101 (Citations omitted)
Petitioners’ exercise of their rightto speech, given the message and their
As stated in Francisco, a political question will not be considered justiciable medium, had understandable relevance especially during the elections.
if there are no constitutionally imposed limits on powers or functions COMELEC’s letter threatening the filing of the election offense against
conferred upon political bodies. Hence, the existence of constitutionally petitioners is already an actionable infringement of this right. The
imposed limits justifies subjecting the official actions of the body to the impending threat of criminal litigation is enough to curtail petitioners’
scrutiny and review of this court. speech.
In this case, the Bill of Rights gives the utmost deference to the right to In the context of this case, exhaustion of their administrative remedies as
free speech. Any instance that this right may be abridged demands judicial COMELEC suggested in their pleadings prolongs the violation of their
scrutiny. It does not fall squarely into any doubt that a political question freedom of speech.
brings.
Political speech enjoys preferred protection within our constitutional
I.E order. In Chavez v. Gonzales,107 Justice Carpio in a separate opinion
emphasized: "[i]f everthere is a hierarchy of protected expressions,
Exhaustion of administrative remedies political expression would occupy the highest rank, and among different
kinds of political expression, the subject of fair and honest elections would
be at the top."108 Sovereignty resides in the people.109 Political speech is a
direct exercise of the sovereignty. The principle of exhaustion of to issues they want debated by the publicin the manner they feel would be
administrative remedies yields in order to protect this fundamental right. effective is one of those cases.
Even assuming that the principle of exhaustion of administrative remedies II

is applicable, the current controversy is within the exceptions to the SUBSTANTIVE ISSUES
principle. In Chua v. Ang,110 this court held:
II.A
On the other hand, prior exhaustion of administrative remedies may be
dispensed with and judicial action may be validly resorted to immediately: COMELEC had no legal basis to regulate expressions made by private
(a) when there is a violation of due process; (b) when the issue involved is citizens
purely a legal question; (c) when the administrative action is patently
illegal amounting to lack or excess of jurisdiction; (d) when there is Respondents cite the Constitution, laws, and jurisprudence to support their
estoppel on the part ofthe administrative agency concerned; (e) when position that they had the power to regulate the tarpaulin. 113 However, all
there is irreparable injury; (f) when the respondent is a department of these provisions pertain to candidates and political parties. Petitioners
secretary whose acts as analter ego of the President bear the implied and are not candidates. Neither do theybelong to any political party. COMELEC
assumed approval of the latter; (g) when to require exhaustion of does not have the authority to regulate the enjoyment of the preferred
administrative remedies would be unreasonable; (h) when it would right to freedom of expression exercised by a non-candidate in this case.
amount to a nullification of a claim; (i) when the subject matter is a private
land in land case proceedings; (j) whenthe rule does not provide a plain,
II.A.1
speedy and adequate remedy; or (k) when there are circumstances
indicating the urgency of judicial intervention." 111 (Emphasis supplied,
First, respondents cite Article IX-C, Section 4 of the Constitution, which
citation omitted)
provides:
The circumstances emphasized are squarely applicable with the present
Section 4. The Commission may,during the election period, supervise or
case. First, petitioners allegethat the assailed issuances violated their right
regulate the enjoyment or utilization of all franchises or permits for the
to freedom of expression and the principle of separation of church and
operation of transportation and other public utilities, media of
state. This is a purely legal question. Second, the circumstances of the
communication or information, all grants, special privileges, or concessions
present case indicate the urgency of judicial intervention considering the
granted by the Government or any subdivision, agency, or instrumentality
issue then on the RH Law as well as the upcoming elections. Thus, to
thereof, including any government-owned or controlled corporation or its
require the exhaustion of administrative remedies in this case would be
subsidiary. Such supervision or regulation shall aim to ensure equal
unreasonable.
opportunity, time, and space, and the right to reply, including reasonable,
equal rates therefor, for public information campaigns and forums among
Time and again, we have held that this court "has the power to relax or
candidates in connection with the objective of holding free, orderly,
suspend the rules or to except a case from their operation when
honest, peaceful, and credible elections.114 (Emphasis supplied)
compelling reasons so warrant, or whenthe purpose of justice requires it,
[and when] [w]hat constitutes [as] good and sufficient cause that will merit
Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during
suspension of the rules is discretionary upon the court". 112 Certainly, this
the plebiscite for the creation of the Cordillera Autonomous
case of first impression where COMELEC has threatenedto prosecute
Region.116 Columnist Pablito V. Sanidad questioned the provision
private parties who seek to participate in the elections by calling attention
prohibiting journalists from covering plebiscite issues on the day before
and on plebiscite day.117 Sanidad argued that the prohibition was a markets, barangay centers and the like, wherein candidates can post,
violation of the "constitutional guarantees of the freedom of expression display or exhibit election propaganda: Provided, That the size ofthe poster
and of the press. . . ."118 We held that the "evil sought to be prevented by areas shall not exceed twelve (12) by sixteen (16) feet or its equivalent.
this provision is the possibility that a franchise holder may favor or give any Independent candidates with no political parties may likewise be
undue advantage to a candidate in terms of advertising space or radio or authorized to erect common poster areas in not more than ten (10) public
television time."119 This court found that "[m]edia practitioners exercising places, the size of which shall not exceed four (4) by six (6) feet or its
their freedom of expression during plebiscite periods are neither the equivalent. Candidates may post any lawful propaganda material in private
franchise holders nor the candidates[,]"120 thus, their right to expression places with the consent of the owner thereof, and in public places or
during this period may not be regulated by COMELEC. 121 property which shall be allocated equitably and impartially among the
candidates. (Emphasis supplied)
Similar to the media, petitioners in the case at bar are neither franchise
holders nor candidates. II.A.2 Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and
regulations implementing the Fair Election Act, provides as follows:
Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as
follows:122 SECTION 17. Posting of Campaign Materials. - Parties and candidates may
post any lawful campaign material in:
Sec. 2. The Commission on Elections shall exercise the following powers
and functions: a. Authorized common poster areasin public places subject to the
requirements and/or limitations set forth in the next following
.... section; and
(7) Recommend to the Congress effective measures to minimize election b. Private places provided it has the consent of the owner thereof.
spending, including limitation of places where propaganda materials shall
be posted, and to prevent and penalize all forms of election frauds, The posting of campaign materials in public places outside of the
offenses, malpractices, and nuisance candidates. (Emphasis supplied) designated common poster areas and those enumerated under Section 7
Based on the enumeration made on actsthat may be penalized, it will be (g) of these Rules and the like is prohibited. Persons posting the same shall
inferred that this provision only affects candidates. be liable together with the candidates and other persons who caused the
posting. It will be presumed that the candidates and parties caused the
Petitioners assail the "Notice to Remove Campaign Materials" issued by posting of campaign materials outside the common poster areas if they do
COMELEC. This was followed bythe assailed letter regarding the "election not remove the same within three (3) days from notice which shall be
propaganda material posted on the church vicinity promoting for or issued by the Election Officer of the city or municipality where the unlawful
against the candidates and party-list groups. . . ."123 election propaganda are posted or displayed.
Section 9 of the Fair Election Act124 on the posting of campaign materials Members of the PNP and other law enforcement agencies called upon by
only mentions "parties" and "candidates": the Election Officeror other officials of the COMELEC shall apprehend the
violators caught in the act, and file the appropriate charges against them.
Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize (Emphasis supplied)
political parties and party-list groups to erect common poster areas for
their candidates in not more than ten (10) public places such as plazas,
Respondents considered the tarpaulin as a campaign material in their Republic Act No. 6646,129 only refers to a particular kind of media such as
issuances. The above provisions regulating the posting of campaign newspapers, radio broadcasting, or television.130 Justice Feliciano
materials only apply to candidates and political parties, and petitioners are emphasized that the provision did not infringe upon the right of reporters
neither of the two. or broadcasters to air their commentaries and opinions regarding the
candidates, their qualifications, and program for government. Compared
Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also to Sanidadwherein the columnists lost their ability to give their
states that these are "allowed for all registered political parties, national, commentary on the issues involving the plebiscite, National Press Clubdoes
regional, sectoral parties or organizations participating under the party-list not involve the same infringement.
elections and for all bona fide candidates seeking national and local
elective positions subject to the limitation on authorized expenses of In the case at bar, petitioners lost their ability to give a commentary on the
candidates and political parties. . . ." Section 6 of COMELEC Resolution No. candidates for the 2013 national elections because of the COMELEC notice
9615 provides for a similar wording. These provisions show that election and letter. It was not merelya regulation on the campaigns of candidates
propaganda refers to matter done by or on behalf of and in coordination vying for public office. Thus, National Press Clubdoes not apply to this case.
with candidates and political parties. Some level of coordination with the
candidates and political parties for whom the election propaganda are Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the
released would ensure that these candidates and political parties maintain Omnibus Election Code, defines an"election campaign" as follows:
within the authorized expenses limitation.
....
The tarpaulin was not paid for byany candidate or political party. 125 There
was no allegation that petitioners coordinated with any of the persons (b) The term "election campaign" or "partisan political activity" refers to an
named in the tarpaulin regarding its posting. On the other hand, act designed to promote the election or defeat of a particular candidate or
petitioners posted the tarpaulin as part of their advocacy against the RH candidates to a public office which shall include:
Law. Respondents also cite National Press Club v. COMELEC 126 in arguing
that its regulatory power under the Constitution, to some extent, set a
(1) Forming organizations, associations, clubs, committees or
limit on the right to free speech during election period. 127
other groups of persons for the purpose of soliciting votes and/or
undertaking any campaign for or against a candidate;
National Press Club involved the prohibition on the sale and donation of
space and time for political advertisements, limiting political
(2) Holding political caucuses, conferences, meetings, rallies,
advertisements to COMELEC-designated space and time. This case was
parades, or other similar assemblies, for the purpose of soliciting
brought by representatives of mass media and two candidates for office in
votes and/or undertaking any campaign or propaganda for or
the 1992 elections. They argued that the prohibition on the sale and
against a candidate;
donation of space and time for political advertisements is tantamount to
censorship, which necessarily infringes on the freedom of speech of the
(3) Making speeches, announcements or commentaries, or
candidates.128
holding interviews for or against the election of any candidate for
public office;
This court upheld the constitutionality of the COMELEC prohibition in
National Press Club. However, this case does not apply as most of the
(4) Publishing or distributing campaign literature or materials
petitioners were electoral candidates, unlike petitioners in the instant
designed to support or oppose the election of any candidate; or
case. Moreover, the subject matter of National Press Club, Section 11(b) of
(5) Directly or indirectly soliciting votes, pledges or support for or Fundamental to the consideration of this issue is Article III, Section 4 of the
against a candidate. Constitution:
The foregoing enumerated acts ifperformed for the purpose of enhancing Section 4. No law shall be passed abridging the freedom of speech, of
the chances of aspirants for nomination for candidacy to a public office by expression, or of the press, or the right of the people peaceably to
a political party, aggroupment, or coalition of parties shall not be assemble and petition the government for redress of grievances. 132
considered as election campaign or partisan election activity. Public
expressions or opinions or discussions of probable issues in a forthcoming No law. . .
electionor on attributes of or criticisms against probable candidates
proposed to be nominated in a forthcoming political party convention shall While it is true that the present petition assails not a law but an opinion by
not be construed as part of any election campaign or partisan political the COMELEC Law Department, this court has applied Article III, Section 4
activity contemplated under this Article. (Emphasis supplied) of the Constitution even to governmental acts.
True, there is no mention whether election campaign is limited only to the In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section
candidates and political parties themselves. The focus of the definition is 1119 of the Revised Ordinances of 1927 of Manila for the public meeting
that the act must be "designed to promote the election or defeat of a and assembly organized by petitioner Primicias.134 Section 1119 requires a
particular candidate or candidates to a public office." Mayor’s permit for the use of streets and public places for purposes such
as athletic games, sports, or celebration of national holidays. 135 What was
In this case, the tarpaulin contains speech on a matter of public concern, questioned was not a law but the Mayor’s refusal to issue a permit for the
that is, a statement of either appreciation or criticism on votes made in the holding of petitioner’s public meeting.136 Nevertheless, this court
passing of the RH law. Thus, petitioners invoke their right to freedom of recognized the constitutional right to freedom of speech, to peaceful
expression. assembly and to petition for redress of grievances, albeit not
absolute,137 and the petition for mandamus to compel respondent Mayor
II.B to issue the permit was granted.138
The violation of the constitutional right In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En
Banc Resolution No. 98-1419 where the COMELEC resolved to approve the
to freedom of speech and expression issuance of a restraining order to stop ABS-CBN from conducting exit
surveys.139 The right to freedom of expression was similarly upheld in this
Petitioners contend that the assailed notice and letter for the removal of case and, consequently, the assailed resolution was nullified and set
the tarpaulin violate their fundamental right to freedom of expression. aside.140
On the other hand, respondents contend that the tarpaulin is an election . . . shall be passed abridging. . .
propaganda subject to their regulation pursuant to their mandate under
Article IX-C, Section 4 of the Constitution. Thus, the assailed notice and All regulations will have an impact directly or indirectly on expression. The
letter ordering itsremoval for being oversized are valid and prohibition against the abridgment of speech should not mean an absolute
constitutional.131 prohibition against regulation. The primary and incidental burden on
speech must be weighed against a compelling state interest clearly allowed
II.B.1
in the Constitution. The test depends on the relevant theory of speech Communication is an essential outcome of protected
implicit in the kind of society framed by our Constitution. speech.143 Communication exists when "(1) a speaker, seeking to signal
others, uses conventional actions because he orshe reasonably believes
. . . of expression. . . that such actions will be taken by the audience in the manner intended;
and (2) the audience so takes the actions."144 "[I]n communicative action[,]
Our Constitution has also explicitly included the freedom of expression, the hearer may respond to the claims by . . . either accepting the speech
separate and in addition to the freedom of speech and of the press act’s claims or opposing them with criticism or requests for justification." 145
provided in the US Constitution. The word "expression" was added in the
1987 Constitution by Commissioner Brocka for having a wider scope: Speech is not limited to vocal communication. "[C]onduct is treated as a
form of speech sometimes referred to as ‘symbolic speech[,]’" 146 such that
MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On "‘when ‘speech’ and ‘nonspeech’ elements are combined in the same
Section 9, page 2, line 29, it says: "No law shall be passed abridging the course of conduct,’ the ‘communicative element’ of the conduct may be
freedom of speech." I would like to recommend to the Committee the ‘sufficient to bring into play the [right to freedom of expression].’" 147
change of the word "speech" to EXPRESSION; or if not, add the words AND
EXPRESSION after the word "speech," because it is more expansive, it has a The right to freedom of expression, thus, applies to the entire continuum
wider scope, and it would refer to means of expression other than speech. of speech from utterances made to conduct enacted, and even to inaction
itself as a symbolic manner of communication.
THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?
In Ebralinag v. The Division Superintendent of Schools of Cebu, 148 students
FR. BERNAS: "Expression" is more broad than speech. We accept it. who were members of the religious sect Jehovah’s Witnesses were to be
expelled from school for refusing to salute the flag, sing the national
anthem, and recite the patriotic pledge.149 In his concurring opinion, Justice
MR. BROCKA: Thank you.
Cruz discussed how the salute is a symbolic manner of communication and
a valid form of expression.150 He adds that freedom of speech includes
THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted? even the right to be silent:
FR. BERNAS: Yes. Freedom of speech includes the right to be silent. Aptly has it been said
that the Bill of Rights that guarantees to the individual the liberty to utter
THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence) what is in his mind also guarantees to him the liberty not to utter what is
The Chair hears none; the amendment is approved. not in his mind. The salute is a symbolic manner of communication that
conveys its messageas clearly as the written or spoken word. As a valid
FR. BERNAS: So, that provision will now read: "No law shall be passed form of expression, it cannot be compelled any more than it can be
abridging the freedom of speech, expression or of the press . . . ." 141 Speech prohibited in the face of valid religious objections like those raised in this
may be said to be inextricably linked to freedom itself as "[t]he right to petition. To impose it on the petitioners is to deny them the right not to
think is the beginning of freedom, and speech must be protected from the speak when their religion bids them to be silent. This coercion of
government because speech is the beginning of thought." 142 conscience has no place in the free society.
II.B.2 The democratic system provides for the accommodation of diverse ideas,
including the unconventional and even the bizarre or eccentric. The will of
the majority prevails, but it cannot regiment thought by prescribing the of a tarpaulin. The larger the fonts and images, the greater the probability
recitation by rote of its opinions or proscribing the assertion of unorthodox that it will catch their attention and, thus, the greater the possibility that
or unpopular views as inthis case. The conscientious objections of the they will understand its message.
petitioners, no less than the impatience of those who disagree with them,
are protected by the Constitution. The State cannot make the individual Second, the size of the tarpaulin may underscore the importance of the
speak when the soul within rebels.151 message to the reader. From an ordinary person’s perspective, those who
post their messages in larger fonts care more about their message than
Even before freedom "of expression" was included in Article III, Section 4 those who carry their messages in smaller media. The perceived
of the present Constitution,this court has applied its precedent version to importance given by the speakers, in this case petitioners, to their cause is
expressions other than verbal utterances. also part of the message. The effectivity of communication sometimes
relies on the emphasis put by the speakers and onthe credibility of the
In the 1985 case of Gonzalez v. Chairman Katigbak, 152 petitioners objected speakers themselves. Certainly, larger segments of the public may tend to
to the classification of the motion picture "Kapit sa Patalim" as "For Adults be more convinced of the point made by authoritative figures when they
Only." They contend that the classification "is without legal and factual make the effort to emphasize their messages.
basis and is exercised as impermissible restraint of artistic
expression."153 This court recognized that "[m]otion pictures are important Third, larger spaces allow for more messages. Larger spaces, therefore,
both as a medium for the communication of ideas and the expression of may translate to more opportunities to amplify, explain, and argue points
the artistic impulse."154 It adds that "every writer,actor, or producer, no which the speakers might want to communicate. Rather than simply
matter what medium of expression he may use, should be freed from the placing the names and images of political candidates and an expression of
censor."155 This court found that "[the Board’s] perception of what support, larger spaces can allow for brief but memorable presentations of
constitutes obscenity appears to be unduly restrictive."156 However, the the candidates’ platforms for governance. Larger spaces allow for more
petition was dismissed solely on the ground that there were not enough precise inceptions of ideas, catalyze reactions to advocacies, and
votes for a ruling of grave abuse of discretion in the classification made by contribute more to a more educated and reasoned electorate. A more
the Board.157 educated electorate will increase the possibilities of both good governance
and accountability in our government.
II.B.3
These points become more salient when it is the electorate, not the
Size does matter candidates or the political parties, that speaks. Too often, the terms of
public discussion during elections are framed and kept hostage by brief
The form of expression is just as important as the information conveyed and catchy but meaningless sound bites extolling the character of the
that it forms part of the expression. The present case is in point. candidate. Worse, elections sideline political arguments and privilege the
endorsement by celebrities. Rather than provide obstacles to their speech,
government should in fact encourage it. Between the candidates and the
It is easy to discern why size matters.
electorate, the latter have the better incentive to demand discussion of the
more important issues. Between the candidates and the electorate, the
First, it enhances efficiency in communication. A larger tarpaulin allows former have better incentives to avoid difficult political standpoints and
larger fonts which make it easier to view its messages from greater instead focus on appearances and empty promises.
distances. Furthermore, a larger tarpaulin makes it easier for passengers
inside moving vehicles to read its content. Compared with the pedestrians,
the passengers inside moving vehicles have lesser time to view the content
Large tarpaulins, therefore, are not analogous to time and place. 158 They Second, free speech should be encouraged under the concept of a market
are fundamentally part of expression protected under Article III, Section 4 place of ideas. This theory was articulated by Justice Holmes in that "the
of the Constitution. ultimate good desired is better reached by [the] free trade in ideas:" 165
II.B.4 When men have realized that time has upset many fighting faiths, they
may come to believe even more than they believe the very foundations of
There are several theories and schools of thought that strengthen the need their own conduct that the ultimate good desired is better reached by free
to protect the basic right to freedom of expression. trade in ideas - that the best test of truth is the power of the thought to
get itself accepted in the competition of the market, and that truth is the
First, this relates to the right ofthe people to participate in public affairs, only ground upon which their wishes safely can be carried out. 166
including the right to criticize government actions.
The way it works, the exposure to the ideas of others allows one to
Proponents of the political theory on "deliberative democracy" submit that "consider, test, and develop their own conclusions."167 A free, open, and
"substantial, open, [and] ethical dialogue isa critical, and indeed defining, dynamic market place of ideas is constantly shaping new ones. This
feature of a good polity."159 This theory may be considered broad, but it promotes both stability and change where recurring points may crystallize
definitely "includes [a] collective decision making with the participation of and weak ones may develop. Of course, free speech is more than the right
all who will beaffected by the decision."160 It anchors on the principle that to approve existing political beliefs and economic arrangements as it
the cornerstone of every democracy is that sovereignty resides in the includes, "[t]o paraphrase Justice Holmes, [the] freedom for the thought
people.161 To ensure order in running the state’s affairs, sovereign powers that we hate, no less than for the thought that agrees with us." 168 In fact,
were delegated and individuals would be elected or nominated in key free speech may "best serve its high purpose when it induces a condition
government positions to represent the people. On this note, the theory on of unrest, creates dissatisfaction with conditions as they are, or even stirs
deliberative democracy may evolve to the right of the people to make people to anger."169 It is in this context that we should guard against any
government accountable. Necessarily, this includes the right of the people curtailment of the people’s right to participate in the free trade of ideas.
to criticize acts made pursuant to governmental functions.
Third, free speech involves self-expression that enhances human dignity.
Speech that promotes dialogue on publicaffairs, or airs out grievances and This right is "a means of assuring individual self-fulfillment," 170 among
political discontent, should thus be protected and encouraged. others. In Philippine Blooming Mills Employees Organization v. Philippine
Blooming Mills Co., Inc,171 this court discussed as follows:
Borrowing the words of Justice Brandeis, "it is hazardous to discourage
thought, hope and imagination; that fear breeds repression; that The rights of free expression, free assembly and petition, are not only civil
repression breeds hate; that hate menaces stable government; that the rights but also political rights essential to man's enjoyment of his life, to his
path of safety lies in the opportunity to discuss freely supposed grievances happiness and to his full and complete fulfillment.Thru these freedoms the
and proposed remedies."162 citizens can participate not merely in the periodic establishment of the
government through their suffrage but also in the administration of public
affairs as well as in the discipline of abusive public officers. The citizen is
In this jurisdiction, this court held that "[t]he interest of society and the
accorded these rights so that he can appeal to the appropriate
maintenance of good government demand a full discussion of public
governmental officers or agencies for redress and protection as well as for
affairs."163 This court has, thus, adopted the principle that "debate on
the imposition of the lawful sanctions on erring public officers and
public issues should be uninhibited, robust,and wide open . . . [including
employees.172 (Emphasis supplied)
even] unpleasantly sharp attacks on government and public officials." 164
Fourth, expression is a marker for group identity. For one, "[v]oluntary II.B.5
associations perform [an] important democratic role [in providing] forums
for the development of civil skills, for deliberation, and for the formation of Every citizen’s expression with political consequences enjoys a high degree
identity and community spirit[,] [and] are largely immune from [any] of protection. Respondents argue that the tarpaulinis election propaganda,
governmental interference."173 They also "provide a buffer between being petitioners’ way of endorsing candidates who voted against the RH
individuals and the state - a free space for the development of individual Law and rejecting those who voted for it.186 As such, it is subject to
personality, distinct group identity, and dissident ideas - and a potential regulation by COMELEC under its constitutional mandate. 187 Election
source of opposition to the state."174 Free speech must be protected as the propaganda is defined under Section 1(4) of COMELEC Resolution No. 9615
vehicle to find those who have similar and shared values and ideals, to join as follows: SECTION 1. Definitions . . .
together and forward common goals.
....
Fifth, the Bill of Rights, free speech included, is supposed to "protect
individuals and minorities against majoritarian abuses perpetrated through 4. The term "political advertisement" or "election propaganda" refers to
[the] framework [of democratic governance]." 175 Federalist framers led by any matter broadcasted, published, printed, displayed or exhibited, in any
James Madison were concerned about two potentially vulnerable groups: medium, which contain the name, image, logo, brand, insignia, color motif,
"the citizenry at large - majorities - who might be tyrannized or plundered initials, and other symbol or graphic representation that is capable of being
by despotic federal officials"176 and the minorities who may be oppressed associated with a candidate or party, and is intended to draw the attention
by "dominant factions of the electorate [that] capture [the] government of the public or a segment thereof to promote or oppose, directly or
for their own selfish ends[.]"177 According to Madison, "[i]t is of great indirectly, the election of the said candidate or candidates to a public
importance in a republic not only to guard the society against the office. In broadcast media, political advertisements may take the form of
oppression of its rulers, but to guard one part of the society against the spots, appearances on TV shows and radio programs, live or taped
injustice of the other part."178 We should strive to ensure that free speech announcements, teasers, and other forms of advertising messages or
is protected especially in light of any potential oppression against those announcements used by commercial advertisers. Political advertising
who find themselves in the fringes on public issues. includes matters, not falling within the scope of personal opinion, that
appear on any Internet website, including, but not limited to, social
Lastly, free speech must be protected under the safety valve theory. 179 This networks, blogging sites, and micro-blogging sites, in return for
provides that "nonviolent manifestations of dissent reduce the likelihood consideration, or otherwise capable of pecuniary estimation.
of violence[.]"180 "[A] dam about to burst . . . resulting in the ‘banking up of
a menacing flood of sullen anger behind the walls of restriction’" 181 has On the other hand, petitioners invoke their "constitutional right to
been used to describe the effect of repressing nonviolent outlets. 182 In communicate their opinions, views and beliefs about issues and
order to avoid this situation and prevent people from resorting to violence, candidates."188 They argue that the tarpaulin was their statement of
there is a need for peaceful methods in making passionate dissent. This approval and appreciation of the named public officials’ act of voting
includes "free expression and political participation" 183 in that they can against the RH Law, and their criticism toward those who voted in its
"vote for candidates who share their views, petition their legislatures to favor.189 It was "part of their advocacy campaign against the RH
[make or] change laws, . . . distribute literature alerting other citizens of Law,"190 which was not paid for by any candidate or political party. 191 Thus,
their concerns[,]"184 and conduct peaceful rallies and other similar "the questioned orders which . . . effectively restrain[ed] and curtail[ed]
acts.185 Free speech must, thus, be protected as a peaceful means of [their] freedom of expression should be declared unconstitutional and
achieving one’s goal, considering the possibility that repression of void."192
nonviolent dissent may spill over to violent means just to drive a point.
This court has held free speech and other intellectual freedoms as "highly affairs by our officials must be allowed to suffer incessant and unabating
ranked in our scheme of constitutional values." 193 These rights enjoy scrutiny, favorable or unfavorable, everyday and at all times. Every holder
precedence and primacy.194 In Philippine Blooming Mills, this court of power in our government must be ready to undergo exposure any
discussed the preferred position occupied by freedom of expression: moment of the day or night, from January to December every year, as it is
only in this way that he can rightfully gain the confidence of the people. I
Property and property rights can belost thru prescription; but human rights have no patience for those who would regard public dissection of the
are imprescriptible. If human rights are extinguished by the passage of establishment as an attribute to be indulged by the people only at certain
time, then the Bill of Rights is a useless attempt to limit the power of periods of time. I consider the freedoms of speech, press and peaceful
government and ceases to be an efficacious shield against the tyranny of assembly and redress of grievances, when exercised in the name of
officials, of majorities, ofthe influential and powerful, and of oligarchs - suffrage, as the very means by which the right itself to vote can only be
political, economic or otherwise. properly enjoyed.It stands to reason therefore, that suffrage itself would
be next to useless if these liberties cannot be untrammelled [sic] whether
In the hierarchy of civil liberties, the rights of free expression and of as to degree or time.198 (Emphasis supplied)
assembly occupy a preferred position as they are essential to the
preservation and vitality of our civil and political institutions; and such Not all speech are treated the same. In Chavez v. Gonzales, this court
priority "gives these liberties the sanctity and the sanction not permitting discussed that some types of speech may be subject to regulation:
dubious intrusions."195 (Citations omitted)
Some types of speech may be subjected to some regulation by the State
This primordial right calls for utmost respect, more so "when what may be under its pervasive police power, in order that it may not be injurious to
curtailed is the dissemination of information to make more meaningful the the equal right of others or those of the community or society. The
equally vital right of suffrage."196 A similar idea appeared in our difference in treatment is expected because the relevant interests of one
jurisprudence as early as 1969, which was Justice Barredo’s concurring and type of speech, e.g., political speech, may vary from those of another, e.g.,
dissenting opinion in Gonzales v. COMELEC:197 obscene speech. Distinctionshave therefore been made in the treatment,
analysis, and evaluation ofthe permissible scope of restrictions on various
I like to reiterate over and over, for it seems this is the fundamental point categories of speech. We have ruled, for example, that in our jurisdiction
others miss, that genuine democracy thrives only where the power and slander or libel, lewd and obscene speech, as well as "fighting words" are
right of the people toelect the men to whom they would entrust the not entitled to constitutional protection and may be penalized. 199 (Citations
privilege to run the affairs of the state exist. In the language of the omitted)
declaration of principles of our Constitution, "The Philippines is a
republican state. Sovereignty resides in the people and all government We distinguish between politicaland commercial speech. Political speech
authority emanates from them" (Section 1, Article II). Translating this refers to speech "both intended and received as a contribution to public
declaration into actuality, the Philippines is a republic because and solely deliberation about some issue,"200 "foster[ing] informed and civicminded
because the people in it can be governed only by officials whom they deliberation."201 On the other hand, commercial speech has been defined
themselves have placed in office by their votes. And in it is on this as speech that does "no more than propose a commercial
cornerstone that I hold it tobe self-evident that when the freedoms of transaction."202 The expression resulting from the content of the tarpaulin
speech, press and peaceful assembly and redress of grievances are being is, however, definitely political speech. In Justice Brion’s dissenting opinion,
exercised in relation to suffrage or asa means to enjoy the inalienable right he discussed that "[t]he content of the tarpaulin, as well as the timing of its
of the qualified citizen to vote, they are absolute and timeless. If our posting, makes it subject of the regulations in RA 9006 and Comelec
democracy and republicanism are to be worthwhile, the conduct of public Resolution No. 9615."203 He adds that "[w]hile indeed the RH issue, by
itself,is not an electoralmatter, the slant that the petitioners gave the issue
converted the non-election issue into a live election one hence, Team 1. The term "election campaign" or "partisan political activity" refers to an
Buhay and Team Patay and the plea to support one and oppose the act designed to promote the election or defeat of a particular candidate or
other."204 candidates to a public office, and shall include any of the following:
While the tarpaulin may influence the success or failure of the named ....
candidates and political parties, this does not necessarily mean it is
election propaganda. The tarpaulin was not paid for or posted "in return Personal opinions, views, and preferences for candidates, contained in
for consideration" by any candidate, political party, or party-list group. blogs shall not be considered acts of election campaigning or partisan
politicalactivity unless expressed by government officials in the Executive
The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or Department, the Legislative Department, the Judiciary, the Constitutional
the rules and regulations implementing Republic Act No. 9006 as an aid to Commissions, and members of the Civil Service.
interpret the law insofar as the facts of this case requires, states:
In any event, this case does not refer to speech in cyberspace, and its
4. The term "political advertisement" or "election propaganda" refers to effects and parameters should be deemed narrowly tailored only in
any matter broadcasted, published, printed, displayed or exhibited, in any relation to the facts and issues in this case. It also appears that such
medium, which contain the name, image, logo, brand, insignia, color motif, wording in COMELEC Resolution No. 9615 does not similarly appear in
initials, and other symbol or graphic representation that is capable of being Republic Act No. 9006, the law it implements.
associated with a candidate or party, and is intended to draw the attention
of the public or a segment thereof to promote or oppose, directly or We should interpret in this manner because of the value of political
indirectly, the election of the said candidate or candidates to a public speech.
office. In broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped As early as 1918, in United States v. Bustos,205 this court recognized the
announcements, teasers, and other forms of advertising messages or need for full discussion of public affairs. We acknowledged that free
announcements used by commercial advertisers. Political advertising speech includes the right to criticize the conduct of public men:
includes matters, not falling within the scope of personal opinion, that
appear on any Internet website, including, but not limited to, social
The interest of society and the maintenance of good government demand
networks, blogging sites, and micro-blogging sites, in return for
a full discussion of public affairs. Complete liberty to comment on the
consideration, or otherwise capable of pecuniary estimation. (Emphasis
conduct of public men is a scalpel in the case of free speech. The sharp
supplied)
incision of its probe relieves the abscesses of official dom. Men in public
life may suffer under a hostile and an unjust accusation; the wound can be
It is clear that this paragraph suggests that personal opinions are not assuaged with the balm of a clear conscience. A public officer must not be
included, while sponsored messages are covered. too thin-skinned with reference to comment upon his official acts. Only
thus can the intelligence and dignity of the individual be exalted. 206
Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615
states: Subsequent jurisprudence developed the right to petition the government
for redress of grievances, allowing for criticism, save for some
SECTION 1. Definitions - As used in this Resolution: exceptions.207 In the 1951 case of Espuelas v. People,208 this court noted
every citizen’s privilege to criticize his or her government, provided it is
"specific and therefore constructive, reasoned or tempered, and not a Thus, in Adiong v. COMELEC,220 this court discussed the importance of
contemptuous condemnation of the entire government set-up." 209 debate on public issues, and the freedom of expression especially in
relation to information that ensures the meaningful exercise of the right of
The 1927 case of People v. Titular210 involved an alleged violation of the suffrage:
Election Law provision "penaliz[ing] the anonymous criticism of a
candidate by means of posters or circulars." 211 This court explained that it We have adopted the principle that debate on public issues should be
is the poster’s anonymous character that is being penalized. 212 The uninhibited, robust, and wide open and that it may well include vehement,
ponente adds that he would "dislike very muchto see this decision made caustic and sometimes unpleasantly sharp attacks on government and
the vehicle for the suppression of public opinion." 213 public officials. Too many restrictions will deny to people the robust,
uninhibited, and wide open debate, the generating of interest essential if
In 1983, Reyes v. Bagatsing214 discussed the importance of allowing our elections will truly be free, clean and honest.
individuals to vent their views. According to this court, "[i]ts value may lie
in the fact that there may be something worth hearing from the dissenter We have also ruled that the preferred freedom of expression calls all the
[and] [t]hat is to ensurea true ferment of ideas." 215 more for the utmost respect when what may be curtailed is the
dissemination of information to make more meaningful the equally vital
Allowing citizens to air grievances and speak constructive criticisms against right of suffrage.221 (Emphasis supplied, citations omitted)
their government contributes to every society’s goal for development. It
puts forward matters that may be changed for the better and ideas that Speech with political consequences isat the core of the freedom of
may be deliberated on to attain that purpose. Necessarily, it also makes expression and must be protected by this court.
the government accountable for acts that violate constitutionally
protected rights. Justice Brion pointed out that freedomof expression "is not the god of
rights to which all other rights and even government protection of state
In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act No. interest must bow."222
6646, which prohibits mass media from selling print space and air time for
campaign except to the COMELEC, to be a democracy-enhancing The right to freedom of expression isindeed not absolute. Even some forms
measure.216 This court mentioned how "discussion of public issues and of protected speech are still subjectto some restrictions. The degree of
debate on the qualifications of candidates in an election are essential to restriction may depend on whether the regulation is content-based or
the proper functioning of the government established by our content-neutral.223 Content-based regulations can either be based on the
Constitution."217 viewpoint of the speaker or the subject of the expression.
As pointed out by petitioners, "speech serves one of its greatest public II.B.6
purposes in the context of elections when the free exercise thereof
informs the people what the issues are, and who are supporting what Content-based regulation
issues."218 At the heart of democracy is every advocate’s right to make
known what the people need to know, 219 while the meaningful exercise of
COMELEC contends that the order for removal of the tarpaulin is a
one’s right of suffrage includes the right of every voter to know what they
content-neutral regulation. The order was made simply because
need to know in order to make their choice.
petitioners failed to comply with the maximum size limitation for lawful
election propaganda.224
On the other hand, petitioners argue that the present size regulation is Under this rule, "the evil consequences sought to be prevented must be
content-based as it applies only to political speech and not to other forms substantive, ‘extremely serious and the degree of imminence extremely
of speech such as commercial speech.225 "[A]ssuming arguendo that the high.’"230 "Only when the challenged act has overcome the clear and
size restriction sought to be applied . . . is a mere time, place, and manner present danger rule will it pass constitutional muster, with the government
regulation, it’s still unconstitutional for lack of a clear and reasonable having the burden of overcoming the presumed unconstitutionality." 231
nexus with a constitutionally sanctioned objective."226
Even with the clear and present danger test, respondents failed to justify
The regulation may reasonably be considered as either content-neutral or the regulation. There is no compelling and substantial state interest
content-based.227 Regardless, the disposition of this case will be the same. endangered by the posting of the tarpaulinas to justify curtailment of the
Generally, compared with other forms of speech, the proposed speech is right of freedom of expression. There is no reason for the state to minimize
content-based. the right of non-candidate petitioners to post the tarpaulin in their private
property. The size of the tarpaulin does not affect anyone else’s
As pointed out by petitioners, the interpretation of COMELEC contained in constitutional rights.
the questioned order applies only to posters and tarpaulins that may affect
the elections because they deliver opinions that shape both their choices. Content-based restraint or censorship refers to restrictions "based on the
It does not cover, for instance, commercial speech. subject matter of the utterance or speech." 232 In contrast, content-neutral
regulation includes controls merely on the incidents of the speech such as
Worse, COMELEC does not point to a definite view of what kind of time, place, or manner of the speech.233
expression of non-candidates will be adjudged as "election paraphernalia."
There are no existing bright lines to categorize speech as election-related This court has attempted to define "content-neutral" restraints starting
and those that are not. This is especially true when citizens will want to use with the 1948 case of Primicias v. Fugoso. 234 The ordinance in this case was
their resources to be able to raise public issues that should be tackled by construed to grant the Mayor discretion only to determine the public
the candidates as what has happened in this case. COMELEC’s discretion to places that may be used for the procession ormeeting, but not the power
limit speech in this case is fundamentally unbridled. to refuse the issuance of a permit for such procession or meeting. 235 This
court explained that free speech and peaceful assembly are "not absolute
Size limitations during elections hit ata core part of expression. The for it may be so regulated that it shall not beinjurious to the equal
content of the tarpaulin is not easily divorced from the size of its medium. enjoyment of others having equal rights, nor injurious to the rights of the
community or society."236
Content-based regulation bears a heavy presumption of invalidity, and this
court has used the clear and present danger rule as measure. 228 Thus, in The earlier case of Calalang v. Williams237 involved the National Traffic
Chavez v. Gonzales: Commission resolution that prohibited the passing of animal-drawn
vehicles along certain roads at specific hours.238 This court similarly
A content-based regulation, however, bears a heavy presumption of discussed police power in that the assailed rules carry outthe legislative
invalidity and is measured against the clear and present danger rule. The policy that "aims to promote safe transit upon and avoid obstructions on
latter will pass constitutional muster only if justified by a compelling national roads, in the interest and convenience of the public." 239
reason, and the restrictions imposedare neither overbroad nor
vague.229 (Citations omitted) As early as 1907, United States v. Apurado240 recognized that "more or less
disorder will mark the public assembly of the people to protest against
grievances whether real or imaginary, because on such occasions feeling is
always wrought to a high pitch of excitement. . . ." 241 It is with this This intermediate approach is based on the test that we have prescribed in
backdrop that the state is justified in imposing restrictions on incidental several cases.252 A content-neutral government regulation is sufficiently
matters as time, place, and manner of the speech. justified:
In the landmark case of Reyes v. Bagatsing, this court summarized the [1] if it is within the constitutional power of the Government; [2] if it
steps that permit applicants must follow which include informing the furthers an important or substantial governmental interest; [3] if the
licensing authority ahead of time as regards the date, public place, and governmental interest is unrelated to the suppression of free expression;
time of the assembly.242 This would afford the public official time to inform and [4] if the incident restriction on alleged [freedom of speech &
applicants if there would be valid objections, provided that the clear and expression] is no greater than is essential to the furtherance of that
present danger test is the standard used for his decision and the applicants interest.253
are given the opportunity to be heard.243 This ruling was practically codified
in Batas Pambansa No. 880, otherwise known as the Public Assembly Act On the first requisite, it is not within the constitutional powers of the
of 1985. COMELEC to regulate the tarpaulin. As discussed earlier, this is protected
speech by petitioners who are non-candidates. On the second
Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid requirement, not only must the governmental interest be important or
content-neutral regulation. In the 2006 case of Bayan v. Ermita, 244 this substantial, it must also be compelling as to justify the restrictions made.
court discussed how Batas Pambansa No. 880 does not prohibit assemblies
but simply regulates their time, place, and manner. 245 In 2010, this court Compelling governmental interest would include constitutionally declared
found in Integrated Bar of the Philippines v. Atienza 246 that respondent principles. We have held, for example, that "the welfare of children and
Mayor Atienza committed grave abuse of discretion when he modified the the State’s mandate to protect and care for them, as parens
rally permit by changing the venue from Mendiola Bridge to Plaza Miranda patriae,254 constitute a substantial and compelling government interest in
without first affording petitioners the opportunity to be heard. 247 regulating . . . utterances in TV broadcast." 255
We reiterate that the regulation involved at bar is content-based. The Respondent invokes its constitutional mandate to ensure equal
tarpaulin content is not easily divorced from the size of its medium. opportunity for public information campaigns among candidates in
connection with the holding of a free, orderly, honest, peaceful, and
II.B.7 credible election.256
Justice Carpio and Justice Perlas-Bernabe suggest that the provisions Justice Brion in his dissenting opinion discussed that "[s]ize limits to
imposing a size limit for tarpaulins are content-neutral regulations as these posters are necessary to ensure equality of public information campaigns
"restrict the mannerby which speech is relayed but not the content of among candidates, as allowing posters with different sizes gives candidates
what is conveyed."248 and their supporters the incentive to post larger posters[,] [and] [t]his
places candidates with more money and/or with deep-pocket supporters
If we apply the test for content-neutral regulation, the questioned acts of at an undue advantage against candidates with more humble financial
COMELEC will not pass the three requirements for evaluating such capabilities."257
restraints on freedom of speech.249 "When the speech restraints take the
form of a content-neutral regulation, only a substantial governmental First, Adiong v. COMELEC has held that this interest is "not as important as
interest is required for its validity,"250 and it is subject only to the the right of [a private citizen] to freely express his choice and exercise his
intermediate approach.251 right of free speech."258 In any case, faced with both rights to freedom of
speech and equality, a prudent course would be to "try to resolve the considering there is no limit on the number of tarpaulins that may be
tension in a way that protects the right of participation." 259 posted.265
Second, the pertinent election lawsrelated to private property only require The third requisite is likewise lacking. We look not only at the legislative
that the private property owner’s consent be obtained when posting intent or motive in imposing the restriction, but more so at the effects of
election propaganda in the property.260 This is consistent with the such restriction, if implemented. The restriction must not be narrowly
fundamental right against deprivation of property without due process of tailored to achieve the purpose. It must be demonstrable. It must allow
law.261 The present facts do not involve such posting of election alternative avenues for the actor to make speech.
propaganda absent consent from the property owner. Thus, this regulation
does not apply in this case. In this case, the size regulation is not unrelated to the suppression of
speech. Limiting the maximum sizeof the tarpaulin would render
Respondents likewise cite the Constitution262 on their authority to ineffective petitioners’ message and violate their right to exercise freedom
recommend effective measures to minimize election spending. Specifically, of expression.
Article IX-C, Section 2(7) provides:
The COMELEC’s act of requiring the removal of the tarpaulin has the effect
Sec. 2. The Commission on Elections shall exercise the following powers of dissuading expressions with political consequences. These should be
and functions: encouraged, more so when exercised to make more meaningful the
equally important right to suffrage.
....
The restriction in the present case does not pass even the lower test of
(7) Recommend to the Congress effective measures to minimize election intermediate scrutiny for content-neutral regulations.
spending, including limitation of places where propaganda materials shall
be posted, and to prevent and penalize all forms of election frauds, The action of the COMELEC in thiscase is a strong deterrent to further
offenses, malpractices, and nuisance candidates. (Emphasis supplied) This speech by the electorate. Given the stature of petitioners and their
does not qualify as a compelling and substantial government interest to message, there are indicators that this will cause a "chilling effect" on
justify regulation of the preferred right to freedom of expression. robust discussion during elections.
The assailed issuances for the removal of the tarpaulin are based on the The form of expression is just as important as the message itself. In the
two feet (2’) by three feet (3’) size limitation under Section 6(c) of words of Marshall McLuhan, "the medium is the message." 266 McLuhan’s
COMELEC Resolution No. 9615. This resolution implements the Fair colleague and mentor Harold Innis has earlier asserted that "the materials
Election Act that provides for the same size limitation. 263 on which words were written down have often counted for more than the
words themselves."267
This court held in Adiong v. COMELEC that "[c]ompared to the paramount
interest of the State in guaranteeing freedom of expression, any financial III
considerations behind the regulation are of marginal significance." 264 In Freedom of expression and equality
fact, speech with political consequences, as in this case, should be
encouraged and not curtailed. As petitioners pointed out, the size III.A
limitation will not serve the objective of minimizing election spending
The possibility of abuse
Of course, candidates and political parties do solicit the help of private on this social issue be determinative of how the public will vote. It
individuals for the endorsement of their electoral campaigns. primarily advocates a stand on a social issue; only secondarily — even
almost incidentally — will cause the election or non-election of a
On the one extreme, this can take illicit forms such as when endorsement candidate.
materials in the form of tarpaulins, posters, or media advertisements are
made ostensibly by "friends" but in reality are really paid for by the The twin tarpaulins consist of satire of political parties. Satire is a "literary
candidate or political party. This skirts the constitutional value that form that employs such devices as sarcasm, irony and ridicule to deride
provides for equal opportunities for all candidates. prevailing vices or follies,"268 and this may target any individual or group in
society, private and government alike. It seeks to effectively communicate
However, as agreed by the parties during the oral arguments in this case, a greater purpose, often used for "political and social criticism" 269 "because
this is not the situation that confronts us. In such cases, it will simply be a it tears down facades, deflates stuffed shirts, and unmasks hypocrisy. . . .
matter for investigation and proof of fraud on the part of the COMELEC. Nothing is more thoroughly democratic than to have the high-and-mighty
lampooned and spoofed."270 Northrop Frye, wellknown in this literary field,
The guarantee of freedom of expression to individuals without any claimed that satire had two defining features: "one is wit or humor
relationship to any political candidate should not be held hostage by the founded on fantasy or a sense of the grotesque and absurd, the other is an
possibility of abuse by those seeking to be elected. It is true that there can object of attack."271 Thus, satire frequently uses exaggeration, analogy, and
be underhanded, covert, or illicit dealings so as to hide the candidate’s real other rhetorical devices.
levels of expenditures. However, labelling all expressions of private parties
that tend to have an effect on the debate in the elections as election The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of
paraphernalia would be too broad a remedy that can stifle genuine speech dead individuals nor could the Archbishop of the Diocese of Bacolod have
like in this case. Instead, to address this evil, better and more effective intended it to mean that the entire plan of the candidates in his list was to
enforcement will be the least restrictive means to the fundamental cause death intentionally. The tarpaulin caricatures political parties and
freedom. parodies the intention of those in the list. Furthermore, the list of "Team
Patay" is juxtaposed with the list of "Team Buhay" that further emphasizes
On the other extreme, moved by the credentials and the message of a the theme of its author: Reproductive health is an important marker for
candidate, others will spend their own resources in order to lend support the church of petitioners to endorse.
for the campaigns. This may be without agreement between the speaker
and the candidate or his or her political party. In lieu of donating funds to The messages in the tarpaulins are different from the usual messages of
the campaign, they will instead use their resources directly in a way that candidates. Election paraphernalia from candidates and political parties
the candidate or political party would have doneso. This may effectively are more declarative and descriptive and contain no sophisticated literary
skirt the constitutional and statutory limits of campaign spending. allusion to any social objective. Thus, they usually simply exhort the public
to vote for a person with a brief description of the attributes of the
Again, this is not the situation in this case. candidate. For example "Vote for [x], Sipag at Tiyaga," "Vote for [y], Mr.
Palengke," or "Vote for [z], Iba kami sa Makati."
The message of petitioners in thiscase will certainly not be what candidates
and political parties will carry in their election posters or media ads. The This court’s construction of the guarantee of freedom of expression has
message of petitioner, taken as a whole, is an advocacy of a social issue always been wary of censorship or subsequent punishment that entails
that it deeply believes. Through rhetorical devices, it communicates the evaluation of the speaker’s viewpoint or the content of one’s speech. This
desire of Diocese that the positions of those who run for a political position is especially true when the expression involved has political consequences.
In this case, it hopes to affect the type of deliberation that happens during identity, or status, have capabilities that may drown out the messages of
elections. A becoming humility on the part of any human institution no others. This is especially true in a developing or emerging economy that is
matter how endowed with the secular ability to decide legal controversies part of the majoritarian world like ours.
with finality entails that we are not the keepers of all wisdom.
The question of libertarian tolerance
Humanity’s lack of omniscience, even acting collectively, provides space for
the weakest dissent. Tolerance has always been a libertarian virtue whose This balance between equality and the ability to express so as to find one’s
version is embedded in our Billof Rights. There are occasional heretics of authentic self or to participate in the self determination of one’s
yesterday that have become our visionaries. Heterodoxies have always communities is not new only to law. It has always been a philosophical
given us pause. The unforgiving but insistent nuance that the majority problematique.
surely and comfortably disregards provides us with the checks upon reality
that may soon evolve into creative solutions to grave social problems. This In his seminal work, Repressive Tolerance, philosopher and social theorist
is the utilitarian version. It could also be that it is just part of human Herbert Marcuse recognized how institutionalized inequality exists as a
necessity to evolve through being able to express or communicate. background limitation, rendering freedoms exercised within such limitation
as merely "protect[ing] the already established machinery of
However, the Constitution we interpret is not a theoretical document. It discrimination."275 In his view, any improvement "in the normal course of
contains other provisions which, taken together with the guarantee of free events" within an unequal society, without subversion, only strengthens
expression, enhances each other’s value. Among these are the provisions existing interests of those in power and control.276
that acknowledge the idea of equality. In shaping doctrine construing these
constitutional values, this court needs to exercise extraordinary prudence In other words, abstract guarantees of fundamental rights like freedom of
and produce narrowly tailored guidance fit to the facts as given so as not expression may become meaningless if not taken in a real context. This
to unwittingly cause the undesired effect of diluting freedoms as exercised tendency to tackle rights in the abstract compromises liberties. In his
in reality and, thus, render them meaningless. words:
III.B. Liberty is self-determination, autonomy—this is almost a tautology, but a

tautology which results from a whole series of synthetic judgments. It
Speech and equality: stipulates the ability to determine one’s own life: to be able to determine
what to do and what not to do, what to suffer and what not. But the
Some considerations We first establish that there are two paradigms of subject of this autonomy is never the contingent, private individual as that
free speech that separate at the point of giving priority to equality vis-à-vis which he actually is or happens to be; it is rather the individual as a human
liberty.272 being who is capable of being free with the others. And the problem of
making possible such a harmony between every individual liberty and the
In an equality-based approach, "politically disadvantaged speech prevails other is not that of finding a compromise between competitors, or
over regulation[,] but regulation promoting political equality prevails over between freedom and law, between general and individual interest,
speech."273 This view allows the government leeway to redistribute or common and private welfare in an established society, but of creating the
equalize ‘speaking power,’ such as protecting, even implicitly subsidizing, society in which man is no longer enslaved by institutions which vitiate
unpopular or dissenting voices often systematically subdued within self-determination from the beginning. In other words, freedom is still to
society’s ideological ladder.274 This view acknowledges that there are be created even for the freest of the existing societies. 277 (Emphasis in the
dominant political actors who, through authority, power, resources, original)
Marcuse suggests that the democratic argument — with all opinions the speech of betterendowed citizens."288 Justice Brandeis’ solution is to
presented to and deliberated by the people — "implies a necessary "remedy the harms of speech with more speech."289 This view moves away
condition, namely, that the people must be capable of deliberating and from playing down the danger as merely exaggerated, toward "tak[ing] the
choosing on the basis of knowledge, that they must have access to costs seriously and embrac[ing] expression as the preferred strategy for
authentic information, and that, on this basis, their evaluation must be the addressing them."290 However, in some cases, the idea of more speech may
result of autonomous thought."278 He submits that "[d]ifferent opinions not be enough. Professor Laurence Tribe observed the need for context
and ‘philosophies’ can no longer compete peacefully for adherence and and "the specification of substantive values before [equality] has full
persuasion on rational grounds: the ‘marketplace of ideas’ is organized and meaning."291 Professor Catherine A. MacKinnon adds that "equality
delimited by those who determine the national and the individual continues to be viewed in a formal rather than a substantive
interest."279 A slant toward left manifests from his belief that "there is a sense."292 Thus, more speech can only mean more speech from the few
‘natural right’ of resistance for oppressed and overpowered minorities to who are dominant rather than those who are not.
use extralegal means if the legal ones have proved to be
inadequate."280 Marcuse, thus, stands for an equality that breaks away and Our jurisprudence
transcends from established hierarchies, power structures, and
indoctrinations. The tolerance of libertarian society he refers to as This court has tackled these issues.
"repressive tolerance."
Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the
Legal scholars validity of Section 11(b) ofthe Electoral Reforms Law of 1987. 293 This
section "prohibits mass media from selling or giving free of charge print
The 20th century also bears witness to strong support from legal scholars space or air time for campaign or other political purposes, except to the
for "stringent protections of expressive liberty," 281 especially by political Commission on Elections."294 This court explained that this provision only
egalitarians. Considerations such as "expressive, deliberative, and regulates the time and manner of advertising in order to ensure media
informational interests,"282 costs or the price of expression, and equality among candidates.295 This court grounded this measure on
background facts, when taken together, produce bases for a system of constitutional provisions mandating political equality: 296 Article IX-C,
stringent protections for expressive liberties.283 Section 4
Many legal scholars discuss the interest and value of expressive liberties. Section 4. The Commission may, during the election period, supervise or
Justice Brandeis proposed that "public discussion is a political duty." 284 Cass regulate the enjoyment or utilization of all franchises or permits for the
Sustein placed political speech on the upper tier of his twotier model for operation of transportation and other public utilities, media of
freedom of expression, thus, warranting stringent protection. 285 He defined communication or information, all grants, special privileges, or concessions
political speech as "both intended and received as a contribution to public granted by the Government or any subdivision, agency, or instrumentality
deliberation about some issue."286 thereof, including any government-owned or controlled corporation or its
subsidiary. Such supervision or regulation shall aim to ensure equal
But this is usually related also tofair access to opportunities for such opportunity, time, and space, and the right to reply, including reasonable,
liberties.287 Fair access to opportunity is suggested to mean substantive equal rates therefor, for public information campaigns and forums among
equality and not mere formal equalitysince "favorable conditions for candidates in connection with the objective of holding free, orderly,
realizing the expressive interest will include some assurance of the honest, peaceful, and credible elections. (Emphasis supplied)
resources required for expression and some guarantee that efforts to
express views on matters of common concern will not be drowned out by Article XIII, Section 1
Section 1. The Congress shall give highest priorityto the enactment of Justice Romero’s dissenting opinion in Osmeña v. COMELEC formulates this
measures that protect and enhance the right of all the people to human view that freedom of speech includes "not only the right to express one’s
dignity, reducesocial, economic, and political inequalities, and remove views, but also other cognate rights relevant to the free communication
cultural inequities by equitably diffusing wealth and political power for the [of] ideas, not excluding the right to be informed on matters of public
common good. concern."301 She adds:
To this end, the State shall regulate the acquisition, ownership, use, and And since so many imponderables may affect the outcome of elections —
disposition of property and its increments. (Emphasis supplied) qualifications of voters and candidates, education, means of
transportation, health, public discussion, private animosities, the weather,
Article II, Section 26 the threshold of a voter’s resistance to pressure — the utmost ventilation
of opinion of men and issues, through assembly, association and
Section 26. The State shall guarantee equal access to opportunities for organizations, both by the candidate and the voter, becomes a sine qua
public service, and prohibit political dynasties as may be defined by law. non for elections to truly reflect the will of the electorate. 302 (Emphasis
(Emphasis supplied) supplied)
Thus, in these cases, we have acknowledged the Constitution’s guarantee Justice Romero’s dissenting opinion cited an American case, if only to
for more substantive expressive freedoms that take equality of emphasize free speech primacy such that"courts, as a rule are wary to
opportunities into consideration during elections. impose greater restrictions as to any attempt to curtail speeches with
political content,"303 thus:
The other view
the concept that the government may restrict the speech of some
elements in our society in order to enhance the relative voice of the others
However, there is also the other view. This is that considerations of
is wholly foreign to the First Amendment which was designed to "secure
equality of opportunity or equality inthe ability of citizens as speakers
the widest possible dissemination of information from diverse and
should not have a bearing in free speech doctrine. Under this view,
antagonistic sources" and "to assure unfettered interchange of ideas for
"members of the public are trusted to make their own individual
the bringing about of political and social changes desired by the people." 304
evaluations of speech, and government is forbidden to intervene for
paternalistic or redistributive reasons . . . [thus,] ideas are best left to a
freely competitive ideological market." 297 This is consistent with the This echoes Justice Oliver Wendell Holmes’ submission "that the market
libertarian suspicion on the use of viewpoint as well as content to evaluate place of ideas is still the best alternative to censorship." 305
the constitutional validity or invalidity of speech.
Parenthetically and just to provide the whole detail of the argument, the
The textual basis of this view is that the constitutional provision uses majority of the US Supreme Court in the campaign expenditures case of
negative rather than affirmative language. It uses ‘speech’ as its subject Buckley v. Valeo "condemned restrictions (even if content-neutral) on
and not ‘speakers’.298 Consequently, the Constitution protects free speech expressive liberty imposed in the name of ‘enhanc[ing] the relative voice of
per se, indifferent to the types, status, or associations of its others’ and thereby ‘equaliz[ing] access to the political arena." 306 The
speakers.299 Pursuant to this, "government must leave speakers and majority did not use the equality-based paradigm.
listeners in the private order to their own devices in sorting out the relative
influence of speech."300 One flaw of campaign expenditurelimits is that "any limit placed on the
amount which a person can speak, which takes out of his exclusive
judgment the decision of when enough is enough, deprives him of his free The traditional view has been to tolerate the viewpoint of the speaker and
speech."307 the content of his or her expression. This view, thus, restricts laws or
regulation that allows public officials to make judgments of the value of
Another flaw is how "[a]ny quantitative limitation on political campaigning such viewpoint or message content. This should still be the principal
inherently constricts the sum of public information and runs counter to our approach.
‘profound national commitment that debate on public issues should be
uninhibited, robust, and wide-open.’"308 However, the requirements of the Constitution regarding equality in
opportunity must provide limits to some expression during electoral
In fact, "[c]onstraining those who have funds or have been able to raise campaigns.
funds does not ease the plight of those without funds in the first place . . .
[and] even if one’s main concern isslowing the increase in political costs, it Thus clearly, regulation of speech in the context of electoral campaigns
may be more effective torely on market forces toachieve that result than made by candidates or the members of their political parties or their
on active legal intervention."309 According to Herbert Alexander, "[t]o political parties may be regulated as to time, place, and manner. This is the
oppose limitations is not necessarily to argue that the sky’s the limit effect of our rulings in Osmeña v. COMELEC and National Press Club v.
[because in] any campaign there are saturation levels and a point where COMELEC.
spending no longer pays off in votes per dollar." 310
Regulation of speech in the context of electoral campaigns made by
III. C. persons who are not candidates or who do not speak as members of a
political party which are, taken as a whole, principally advocacies of a
When private speech amounts social issue that the public must consider during elections is
unconstitutional. Such regulation is inconsistent with the guarantee of
to election paraphernalia according the fullest possible range of opinions coming from the electorate
including those that can catalyze candid, uninhibited, and robust debate in
the criteria for the choice of a candidate.
The scope of the guarantee of free expression takes into consideration the
constitutional respect for human potentiality and the effect of speech. It
valorizes the ability of human beings to express and their necessity to This does not mean that there cannot be a specie of speech by a private
relate. On the other hand, a complete guarantee must also take into citizen which will not amount toan election paraphernalia to be validly
consideration the effects it will have in a deliberative democracy. Skewed regulated by law.
distribution of resources as well as the cultural hegemony of the majority
may have the effect of drowning out the speech and the messages of those Regulation of election paraphernalia will still be constitutionally valid if it
in the minority. In a sense, social inequality does have its effect on the reaches into speech of persons who are not candidates or who do not
exercise and effect of the guarantee of free speech. Those who have more speak as members of a political party if they are not candidates, only if
will have better access to media that reaches a wider audience than those what is regulated is declarative speech that, taken as a whole, has for its
who have less. Those who espouse the more popular ideas will have better principal object the endorsement of a candidate only. The regulation (a)
reception than the subversive and the dissenters of society.To be really should be provided by law, (b) reasonable, (c) narrowly tailored to meet
heard and understood, the marginalized view normally undergoes its own the objective of enhancing the opportunity of all candidates to be heard
degree of struggle. and considering the primacy of the guarantee of free expression, and (d)
demonstrably the least restrictive means to achieve that object. The
regulation must only be with respect to the time, place, and manner of the
rendition of the message. In no situation may the speech be prohibited or Any regulation, therefore, which operates as an effective confiscation of
censored onthe basis of its content. For this purpose, it will notmatter private property or constitutes an arbitrary or unreasonable infringement
whether the speech is made with or on private property. of property rights is void, because it is repugnant to the constitutional
guaranties of due process and equal protection of the laws. 316 (Citation
This is not the situation, however, in this case for two reasons. First, as omitted)
discussed, the principal message in the twin tarpaulins of petitioners
consists of a social advocacy. This court in Adiong held that a restriction that regulates where decals and
stickers should be posted is "so broad that it encompasses even the
Second, as pointed out in the concurring opinion of Justice Antonio Carpio, citizen’s private property."317 Consequently, it violates Article III, Section 1
the present law — Section 3.3 of Republic Act No. 9006 and Section 6(c) of of the Constitution which provides thatno person shall be deprived of his
COMELEC Resolution No. 9615 — if applied to this case, will not pass the property without due process of law. This court explained:
test of reasonability. A fixed size for election posters or tarpaulins without
any relation to the distance from the intended average audience will be Property is more than the mere thing which a person owns, it includes the
arbitrary. At certain distances, posters measuring 2 by 3 feet could no right to acquire, use, and dispose of it; and the Constitution, in the 14th
longer be read by the general public and, hence, would render speech Amendment, protects these essential attributes.
meaningless. It will amount to the abridgement of speech with political
consequences. Property is more than the mere thing which a person owns. It is
elementary that it includes the right to acquire, use, and dispose of it. The
IV Constitution protects these essential attributes of property. Holden v.
Right to property Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property
consists of the free use, enjoyment, and disposal of a person’s acquisitions
Other than the right to freedom of expression 311 and the meaningful without control or diminution save by the law of the land. 1 Cooley’s Bl.
exercise of the right to suffrage,312 the present case also involves one’s Com. 127. (Buchanan v. Warley 245 US 60 [1917])318
right to property.313
This court ruled that the regulation in Adiong violates private property
Respondents argue that it is the right of the state to prevent the rights:
circumvention of regulations relating to election propaganda by applying
such regulations to private individuals.314 Certainly, any provision or The right to property may be subject to a greater degree of regulation but
regulation can be circumvented. But we are not confronted with this when this right is joined by a "liberty" interest, the burden of justification
possibility. Respondents agree that the tarpaulin in question belongs to on the part of the Government must be exceptionally convincing and
petitioners. Respondents have also agreed, during the oral arguments, that irrefutable. The burden is not met in this case.
petitioners were neither commissioned nor paid by any candidate or
political party to post the material on their walls. Section 11 of Rep. Act 6646 is so encompassing and invasive that it
prohibits the posting or display of election propaganda in any place,
Even though the tarpaulin is readily seen by the public, the tarpaulin whether public or private, except inthe common poster areas sanctioned
remains the private property of petitioners. Their right to use their by COMELEC. This means that a private person cannot post his own crudely
property is likewise protected by the Constitution. prepared personal poster on his own front dooror on a post in his yard.
While the COMELEC will certainly never require the absurd, there are no
In Philippine Communications Satellite Corporation v. Alcuaz: 315 limits to what overzealous and partisan police officers, armed with a copy
of the statute or regulation, may do.319 Respondents ordered petitioners, shall forever be allowed. Noreligious test shall be required for the exercise
who are private citizens, to remove the tarpaulin from their own property. of civil or political rights.
The absurdity of the situation is in itself an indication of the
unconstitutionality of COMELEC’s interpretation of its powers. There are two aspects of this provision. 321 The first is the none
stablishment clause.322 Second is the free exercise and enjoyment of
Freedom of expression can be intimately related with the right to property. religious profession and worship.323
There may be no expression when there is no place where the expression
may be made. COMELEC’s infringement upon petitioners’ property rights The second aspect is atissue in this case.
as in the present case also reaches out to infringement on their
fundamental right to speech. Clearly, not all acts done by those who are priests, bishops, ustadz, imams,
or any other religious make such act immune from any secular
Respondents have not demonstrated thatthe present state interest they regulation.324 The religious also have a secular existence. They exist within
seek to promote justifies the intrusion into petitioners’ property rights. a society that is regulated by law.
Election laws and regulations must be reasonable. It must also
acknowledge a private individual’s right to exercise property rights. The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts
Otherwise, the due process clause will be violated. of a bishop amounts to religious expression. This notwithstanding
petitioners’ claim that "the views and position of the petitioners, the
COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent Bishop and the Diocese of Bacolod, on the RH Bill is inextricably connected
the posting of election propaganda in private property without the consent to its Catholic dogma, faith, and moral teachings. . . ." 325
of the owners of such private property. COMELEC has incorrectly
implemented these regulations. Consistent with our ruling in Adiong, we The difficulty that often presents itself in these cases stems from the reality
find that the act of respondents in seeking to restrain petitioners from that every act can be motivated by moral, ethical, and religious
posting the tarpaulin in their own private property is an impermissible considerations. In terms of their effect on the corporeal world, these acts
encroachments on the right to property. range from belief, to expressions of these faiths, to religious ceremonies,
and then to acts of a secular character that may, from the point of view of
V others who do not share the same faith or may not subscribe to any
Tarpaulin and its message are not religious speech religion, may not have any religious bearing.
We proceed to the last issues pertaining to whether the COMELEC in Definitely, the characterizations ofthe religious of their acts are not
issuing the questioned notice and letter violated the right of petitioners to conclusive on this court. Certainly, our powers of adjudication cannot be
the free exercise of their religion. blinded by bare claims that acts are religious in nature.
At the outset, the Constitution mandates the separation of church and Petitioners erroneously relied on the case of Ebralinag v. The Division
state.320 This takes many forms. Article III, Section 5 of the Constitution, for Superintendent of Schools of Cebu326 in claiming that the court
instance provides: "emphatically" held that the adherents ofa particular religion shall be the
ones to determine whether a particular matter shall be considered
Section 5. No law shall be made respecting an establishment of religion, or ecclesiastical in nature.327 This court in Ebralinagexempted Jehovah’s
prohibiting the free exercise thereof. The free exercise and enjoyment of Witnesses from participating in the flag ceremony "out of respect for their
religious profession and worship, without discrimination or preference, religious beliefs, [no matter how] "bizarre" those beliefsmay seem to
others."328 This court found a balance between the assertion of a religious religious speech solely on such basis. The enumeration of candidates on
practice and the compelling necessities of a secular command. It was an the face of the tarpaulin precludes any doubtas to its nature as speech
early attempt at accommodation of religious beliefs. with political consequences and not religious speech.
In Estrada v. Escritor,329 this court adopted a policy of benevolent Furthermore, the definition of an "ecclesiastical affair" in Austria v.
neutrality: National Labor Relations Commission333 cited by petitioners finds no
application in the present case. The posting of the tarpaulin does not fall
With religion looked upon with benevolence and not hostility, benevolent within the category of matters that are beyond the jurisdiction of civil
neutrality allows accommodation of religion under certain circumstances. courts as enumerated in the Austriacase such as "proceedings for
Accommodations are government policies that take religion specifically excommunication, ordinations of religious ministers, administration of
intoaccount not to promote the government’s favored form of religion, but sacraments and other activities withattached religious significance." 334
to allow individuals and groups to exercise their religion without
hindrance. Their purpose or effect therefore is to remove a burden on, or A FINAL NOTE
facilitate the exercise of, a person’s or institution’s religion. As Justice
Brennan explained, the "government [may] take religion into account . . . We maintain sympathies for the COMELEC in attempting to do what it
to exempt, when possible, from generally applicable governmental thought was its duty in this case. However, it was misdirected.
regulation individuals whose religious beliefs and practices would
otherwise thereby be infringed, or to create without state involvement an COMELEC’s general role includes a mandate to ensure equal opportunities
atmosphere in which voluntary religious exercise may flourish." 330 and reduce spending among candidates and their registered political
parties. It is not to regulate or limit the speech of the electorate as it
This court also discussed the Lemon test in that case, such that a regulation strives to participate inthe electoral exercise.
is constitutional when: (1) it has a secular legislative purpose; (2) it neither
advances nor inhibits religion; and (3) it does not foster an excessive The tarpaulin in question may be viewed as producing a caricature of those
entanglement with religion.331 who are running for public office.Their message may be construed
generalizations of very complex individuals and party-list organizations.
As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not
convey any religious doctrine of the Catholic church." 332 That the position They are classified into black and white: as belonging to "Team Patay" or
of the Catholic church appears to coincide with the message of the "Team Buhay."
tarpaulin regarding the RH Law does not, by itself, bring the expression
within the ambit of religious speech. On the contrary, the tarpaulin clearly
But this caricature, though not agreeable to some, is still protected speech.
refers to candidates classified under "Team Patay" and "Team Buhay"
according to their respective votes on the RH Law.
That petitioners chose to categorize them as purveyors of death or of life
on the basis of a single issue — and a complex piece of legislation at that
The same may be said of petitioners’ reliance on papal encyclicals to
— can easily be interpreted as anattempt to stereo type the candidates
support their claim that the expression onthe tarpaulin is an ecclesiastical
and party-list organizations. Not all may agree to the way their thoughts
matter. With all due respect to the Catholic faithful, the church doctrines
were expressed, as in fact there are other Catholic dioceses that chose not
relied upon by petitioners are not binding upon this court. The position of
to follow the example of petitioners.
the Catholic religion in the Philippines as regards the RH Law does not
suffice to qualify the posting by one of its members of a tarpaulin as
Some may have thought that there should be more room to consider being COMELEC in issuing the assailed notice dated February 22, 2013 and letter
more broad-minded and non-judgmental. Some may have expected that dated February 27, 2013 is declared unconstitutional.
the authors would give more space to practice forgiveness and humility.
SO ORDERED.
But, the Bill of Rights enumerated in our Constitution is an enumeration of
our fundamental liberties. It is not a detailed code that prescribes good
conduct. It provides space for all to be guided by their conscience, not only
in the act that they do to others but also in judgment of the acts of others.
Freedom for the thought we can disagree with can be wielded not only by
those in the minority. This can often be expressed by dominant
institutions, even religious ones. That they made their point dramatically
and in a large way does not necessarily mean that their statements are
true, or that they have basis, or that they have been expressed in good
taste.
Embedded in the tarpaulin, however, are opinions expressed by

petitioners. It is a specie of expression protected by our fundamental law.
It is an expression designed to invite attention, cause debate, and
hopefully, persuade. It may be motivated by the interpretation of
petitioners of their ecclesiastical duty, but their parishioner’s actions will
have very real secular consequences. Certainly, provocative messages do
matter for the elections.
What is involved in this case is the most sacred of speech forms:

expression by the electorate that tends to rouse the public to debate
contemporary issues. This is not speechby candidates or political parties to
entice votes. It is a portion of the electorate telling candidates the
conditions for their election. It is the substantive content of the right to
suffrage.
This. is a form of speech hopeful of a quality of democracy that we should

all deserve. It is protected as a fundamental and primordial right by our
Constitution. The expression in the medium chosen by petitioners deserves
our protection.
WHEREFORE, the instant petition is GRANTED. The temporary restraining

order previously issued is hereby made permanent. The act of the

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1 | C o n s ti t u ti o n a l c o m m i s s i o n s c a s e s

BERSAMIN, J.: WHEREAS, Section 3, Article IX-B of the 1987 Constitution mandates,

any of its subdivisions, agencies, or instrumentalities, including Section 7. x x x

PEREZ, J.: a. Brgy. Picotaan, Lumbatan with 682 registered voters.

MARIA LOURDES P. A. SERENO Republic of the Philippines

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR. EN BANC

Rules of Civil Procedure.

on the substantive issues surrounding the procurement of the 23,000

public to determine each bidder's compliance with the documents

a. Original/Certified true copy of e. Sworn Statement of the bidder's

Michael, 90,399,99 90,399,998. Global City,

TOTAL 135,600,001 WHEREFORE, in view of the foregoing, the petition is

B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED I

V. In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of

Respondents’ reliance on this provision is misplaced. Hierarchy of courts

Even assuming that the principle of exhaustion of administrative remedies II

III.B. Liberty is self-determination, autonomy—this is almost a tautology, but a

Embedded in the tarpaulin, however, are opinions expressed by

What is involved in this case is the most sacred of speech forms:

This. is a form of speech hopeful of a quality of democracy that we should

WHEREFORE, the instant petition is GRANTED. The temporary restraining

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