Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

154198 January 20, 2003

PETRONILA S. RULLODA, petitioner, vs. COMMISSION ON ELECTIONS (COMELEC), ELECTION OFFICER LUDIVICO L. ASUNCION OF SAN JACINTO, PANGASINAN; BARANGAY BOARD OF CANVASSERS OF BRGY. STO. TOMAS, SAN JACINTO, PANGASINAN, Board of Election Tellers of Prec. Nos. 30A/30A1, 31A, 31A1, and 32A1, and REMEGIO PLACIDO, respondents. YNARES-SANTIAGO, J.: In the barangay elections of July 15, 2002, Romeo N. Rulloda and Remegio L. Placido were the contending candidates for Barangay Chairman of Sto. Tomas, San Jacinto, Pangasinan. On June 22, 2002, Romeo suffered a heart attack and 1 passed away at the Mandaluyong City Medical Center. His widow, petitioner Petronila "Betty" Rulloda, wrote a letter to the Commission on Elections on June 25, 2002 seeking 2 permission to run as candidate for Barangay Chairman of Sto. Tomas in lieu of her late husband. Petitioners request was supported by the Appeal-Petition containing several signatures of people purporting to be members of the electorate of 3 Barangay Sto. Tomas. On July 14, 2002, Election Officer Ludivico L. Asuncion issued a directive to the Chairman and Members of the Barangay Board of Canvassers of Sto. Tomas as follows: Just in case the names "BETTY" or "PETRONILA" or the surname "RULLODA" is written on the ballot, read the same as it is written but add the words "NOT COUNTED" like "BETTY NOT COUNTED" or "RULLODA NOT 4 COUNTED." Based on the tally of petitioners watchers who were allowed to witness the canvass of votes during the July 15, 2002 5 elections, petitioner garnered 516 votes while respondent Remegio Placido received 290 votes. Despite this, the Board 6 of Canvassers proclaimed Placido as the Barangay Chairman of Sto. Tomas. After the elections, petitioner learned that the COMELEC, acting on the separate requests of Andres Perez Manalaysay and Petronila Rulloda to be substituted as candidates for Barangay Chairman of Barangay La Fuente, Sta. Rosa, Nueva Ecija and Barangay Sto. Tomas, San Jacinto, Pangasinan, respectively, issued Resolution No. 5217 dated July 13, 2002 which states: PREMISES CONSIDERED, the Commission RESOLVED, as it hereby RESOLVES, to ADOPT the recommendation of the Law Department as follows: 1. To deny due course the Certificates of Candidacy of ANDRES PEREZ MANALAYSAY and PETRONILA S. RULLODA; and 2. To direct the Election Officer of Sta. Rosa, Nueva Ecija and San Jacinto, Pangasinan to delete the name of ANDRES PEREZ MANALAYSAY, candidate for Barangay Chairman in Barangay La Fuente, Sta. Rosa, Nueva Ecija; and the name of PETRONILA S. RULLODA, candidate for Barangay Captain in Barangay Sto. Tomas, San Jacinto, Pangasinan. Let the Law Department implement this resolution. SO ORDERED.
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The above-quoted Resolution cited as authority the COMELECs Resolution No. 4801 dated May 23, 2002, setting forth the guidelines on the filing of certificates of candidacy in connection with the July 15, 2002 synchronized Barangay and Sangguniang Kabataan elections, more particularly Section 9 thereof which reads: Sec. 9. Substitution of candidates. There shall be no substitution of candidates for barangay andsangguniang 8 kabataan officials. Hence, petitioner filed the instant petition for certiorari, seeking to annul Section 9 of Resolution No. 4801 and Resolution No. 5217, both of the COMELEC, insofar as they prohibited petitioner from running as substitute candidate in lieu of her deceased husband; to nullify the proclamation of respondent; and to proclaim her as the duly elected Barangay Chairman of Sto. Tomas, San Jacinto, Pangasinan. Private respondent Remegio Placido filed his Comment, arguing that since the barangay election is non-partisan, substitution of candidates is not allowed. Moreover, petitioner did not file any certificate of candidacy; hence, there was 9 only one candidate for Barangay Chairman of Sto. Tomas, namely, respondent Placido.

Public respondent COMELEC also filed its Comment. It contends that its Resolution No. 4801 was issued not pursuant to its quasi-judicial functions but as an incident of its inherent administrative functions over the conduct of the barangay elections. Therefore, the same may not be the subject of review in a petition for certiorari. Further, the COMELEC alleges that it did not comm it grave abuse of discretion in denying due course to petitioners certificate of candidacy and in 10 proclaiming respondent considering that he was the only candidate for Barangay Chairman of Sto. Tomas. We find merit in the petition. At the outset, there is no dispute that petitioner garnered 516 votes while respondent got only 290 votes. Respondents did not deny this in their respective Comments. In our jurisdiction, an election means the choice or selection of candidates to public office by popular vote through the use of the ballot, and the elected officials which are determined through the will of the electorate. An election is the embodiment of the popular will, the expression of the sovereign power of the people. The winner is the candidate who has obtained a majority or plurality of valid votes cast in the election. Sound policy dictates that public elective offices are filled by those who receive the highest number of votes cast in the election for that office. For, in all republican forms of government the basic idea is that no one can be declared elected and no measure can be declared carried unless he or it 11 receives a majority or plurality of the legal votes cast in the election. Respondents base their argument that the substitution of candidates is not allowed in barangay elections on Section 77 of the Omnibus Elections Code, which states: Section 77. Candidates in case of death, disqualification or withdrawal of another . If after the last day of the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate or, in the case of candidates to be voted by the entire electorate of the country, with the Commission. Private respondent argues that inasmuch as the barangay election is non-partisan, there can be no substitution because there is no political party from which to designate the substitute. Such an interpretation, aside from beingnon sequitur, 12 ignores the purpose of election laws which is to give effect to, rather than frustrate, the will of the voters. It is a solemn duty to uphold the clear and unmistakable mandate of the people. It is well-settled that in case of doubt, political laws 13 must be so construed as to give life and spirit to the popular mandate freely expressed through the ballot. Contrary to respondents claim, the absence of a specific provision governing substituti on of candidates in barangay elections can not be inferred as a prohibition against said substitution. Such a restrictive construction cannot be read into the law where the same is not written. Indeed, there is more reason to allow the substitution of candidates where no political parties are involved than when political considerations or party affiliations reign, a fact that must have been subsumed by law. Private respondent likewise contends that the votes in petitioners favor can not be counted because she did not file any certificate of candidacy. In other words, he was the only candidate for Barangay Chairman. His claim is refuted by the Memorandum of the COMELEC Law Department as well as the assailed Resolution No. 5217, wherein it indubitably appears that petitioners letter-request to be allowed to run as Barangay Chairman of Sto. Tomas in lieu of her late 14 husband was treated as a certificate of candidacy. To reiterate, it was petitioner who obtained the plurality of votes in the contested election. Technicalities and procedural niceties in election cases should not be made to stand in the way of the true will of the electorate. Laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be 15 defeated by mere technical objections. Election contests involve public interest, and technicalities and procedural barriers must yield if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials. The Court frowns upon any interpretation of the law that would hinder in any way not only the free and intelligent casting of 16 the votes in an election but also the correct ascertainment of the results. WHEREFORE, in view of the foregoing, the instant petition is GRANTED. The assailed Resolution No. 5217 of the Commission on Elections, insofar as it denied due course to petitioners certificate of candidacy, is declared NULL and VOID. The proclamation of respondent Remegio L. Placido as Barangay Chairman of Sto. Tomas, San Jacinto, Pangasinan is SET ASIDE, and the Board of Canvassers of the said Barangay is ORDERED to proclaim petitioner as the duly elected Barangay Chairman thereof. SO ORDERED.

G.R. No. 150946

October 23, 2003

MUNICIPAL BOARD OF CANVASSERS OF GLAN, ENRIQUE B. YAP, JR., VENANCIO S. WATA, JR., GILDO VILLORENTE, SR., JING MUSA, BENEDICTO L. RUIZ, ANANIAS S. EMNACE, VANNEVAR B. ALEGADO, ALITO ARNOLD CARIO, SATURNINO BAG, JR., and FEDERICO J. TANGAN, petitioners, vs. COMMISSION ON ELECTIONS, (En Banc) and FLORA L. BENZONAN, respondents. DECISION AZCUNA, J.: The present petition for certiorari, under Rule 65 of the Rules of Court, originated from SPC No. 01-032, a preproclamation controversy instituted by respondent Flora L. Benzonan with the Commission on Election (COMELEC) en banc. Benzonan, who was a mayoralty candidate in the Municipality of Glan, Sarangani during the May 14, 2001 elections, sought to declare null and void the canvass conducted by the Municipal Board of Canvassers (MBC) of Glan, Sarangani and to recall the proclamation of petitioners Enrique B. Yap, Jr., Venancio S. Wata, Jr., Gildo Villorente, Sr., Ting Musa, Benedicto L. Ruiz, Ananias S. Emnace, Vannevar B. Alegado, Alito Arnold Carino, Saturnino Bag, Jr. and Federico J. Tangan, as duly elected Mayor, Vice-Mayor and members of the Sangguniang Bayan of Glan, Sarangani, respectively. Benzonan argued her pre-proclamation case on the grounds that: a) after the original and second MBC had resigned, the third MBC was illegally constituted as its Chairman, Vice-Chairman and Secretary are not qualified under the Omnibus 1 Election Code; b) the canvassing proceedings, which were initially held in the Session Hall of the Sangguniang Bayan of 2 Glan, were later transferred to the Provincial Capitol of Danao Province, contrary to COMELEC Resolution No. 3848; c) the Secretary of the MBC failed to record the minutes of the canvassing proceedings since the start of the canvass; d) neither Benzonan nor her representatives were notified of the last three days of the canvassing proceedings and, consequently, they were not able to participate therein; e) a substantial number of the election returns had been tampered 3 with or falsified; and f) the MBC had falsified the certificate of canvass votes. On December 4, 2001, the COMELEC en banc issued a resolution finding that, based on the evidence presented, the canvass of votes had been conducted in a place other than the previous venue at the inception of the proceedings to which all were notified. Thus, the proclamations of the winning candidates were declared null and void and a re-canvass of the election returns was ordered. To reverse the COMELEC en bancs resolution, petitioners filed the present petition with a prayer for a temporary 5 restraining order and preliminary prohibitory injunction. On December 21, 2001, the Court issued a temporary restraining order directing the COMELEC to cease and desist from implementing its December 4, 2001 resolution. Although not raised as an issue, the Court is compelled to resolve whether the COMELEC has jurisdiction over this case. Section 3 (c) of Article IX-C of the Constitution reads: The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite the disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.1awphi1.nt Beginning with Sarmiento v. COMELEC and reiterated in subsequent cases, the most recent being Balindong v. 8 COMELEC, the Court has upheld this constitutional mandate and consistently ruled that the COMELEC sitting en banc does not have the requisite authority to hear and decide election cases in the first instance. This power pertains to the divisions of the Commission and any decision by the Commission en banc as regards election cases decided by it in the first instance is null and void for lack of jurisdiction. It is important to clarify, however, that not all cases relating to election laws filed before the COMELEC are required to be first heard by a division. Under the Constitution, the COMELEC exercises both administrative and quasi-judicial powers. The COMELEC en banc can act directly on matters falling within its administrative powers. 1a\^/phi1.netIt is only when the exercise of quasi-judicial powers are involved that the COMELEC is mandated to decide cases first in division, and then, 9 upon motion for reconsideration, en banc. It is clear that SPC No. 01-032 is one that involves a pre-proclamation controversy that requires the exercise of the COMELECs quasi-judicial powers, as the illegality of the composition and proceedings of the MBC, including the 10 falsification of election returns and certificate of canvass, were alleged to be in issue. Furthermore, in her comment to 11 the petition dated January 9, 2000, Benzonan categorically stated that it is not disputed that what is involved here is a pre-proclamation controversy. Also undisputed is the fact that Benzonan filed her pre-proclamation case directly with the COMELEC en banc and that the case was subsequently decided by the COMELEC, sitting en banc. As aforestated, the COMELEC en banc is without jurisdiction to decide cases involving these types of controversies in the first instance. Thus, the procedure taken by Benzonan resulted in a resolution in her favor that the Court must declare null and void and set aside.
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WHEREFORE, in view of the foregoing, the petition is GRANTED. The resolution of the COMELEC en banc dated December 4, 2001 in SPC No. 01-032 is hereby declared null and void and set aside, and the COMELEC is directed to assign SPC No. 01-032 to a division. No costs. SO ORDERED.

G.R. No. 182380

August 28, 2009

ROBERT P. GUZMAN, Petitioner, vs. COMMISSION ON ELECTIONS, MAYOR RANDOLPH S. TING AND SALVACION GARCIA, Respondents. DECISION BERSAMIN, J.: Through certiorari under Rule 64, in relation to Rule 65, Rules of Court, the petitioner assails the February 18, 2008 resolution of the Commission of Elections en banc (COMELEC),1 dismissing his criminal complaint against respondents City Mayor Randolph Ting and City Treasurer Salvacion Garcia, both of Tuguegarao City, charging them with alleged violations of the prohibition against disbursing public funds and undertaking public works, as embodied in Section 261, paragraphs (v) and (w), of the Omnibus Election Code, during the 45-day period of the election ban by purchasing property to be converted into a public cemetery and by issuing the treasury warrant in payment. He asserts that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in thereby exonerating City Mayor Ting and City Treasurer Garcia based on its finding that the acquisition of the land for use as a public cemetery did not constitute public works covered by the ban. Antecedents On March 31, 2004, the Sangguniang Panlungsod of Tuguegarao City passed Resolution No. 048-2004 to authorize City Mayor Ting to acquire two parcels of land for use as a public cemetery of the City. Pursuant to the resolution, City Mayor Ting purchased the two parcels of land, identified as Lot Nos. 5860 and 5861 and located at Atulayan Sur, Tuguegarao City, with an aggregate area of 24,816 square meters (covered by Transfer Certificates of Title [TCT] No. T-36942 and TCT No. T-36943 of the Register of Deeds in Tuguegarao City), from Anselmo Almazan, Angelo Almazan and Anselmo Almazan III. As payment, City Treasurer Garcia issued and released Treasury Warrant No. 0001534514 dated April 20, 2004 in the sum of P8,486,027.00. On May 5, 2004, the City Government of Tuguegarao caused the registration of the sale and the issuance of new certificates in its name (i.e., TCT No. T144428 and TCT No. T-144429). Based on the transaction, the petitioner filed a complaint in the Office of the Provincial Election Supervisor of Cagayan Province against City Mayor Ting and City Treasurer Garcia, charging them with a violation of Section 261, paragraphs (v) and (w), of the Omnibus Election Code, for having undertaken to construct a public cemetery and for having released, disbursed and expended public funds within 45 days prior to the May 9, 2004 election, in disregard of the prohibitions under said provisions due to the election ban period having commenced on March 26, 2004 and ended on May 9, 2004. City Mayor Ting denied the accusations in his counter-affidavit but City Treasurer Garcia opted not to answer. After investigation, the Acting Provincial Election Supervisor of Cagayan recommended the dismissal of the complaint by a resolution dated December 13, 2006, to wit: WHEREFORE, premises considered, the undersigned investigator finds that respondents did not violate Section 261 subparagraphs (v) and (w) of the Omnibus Election Code and Sections 1 and 2 of Comelec Resolution No. 6634 and hereby recommends the DISMISSAL of the above-entitled case for lack of merit.2 The COMELEC en banc adopted the foregoing recommendation in its own resolution dated February 18, 2008 issued in E.O. Case No. 06-143 and dismissed the complaint for lack of merit, holding that the acquisition of the two parcels of land for a public cemetery was not considered as within the term public works; and that, consequently, the issuance of Treasury Warrant No. 0001534514 was not for public works and was thus in violation of Section 261 (w) of the Omnibus Election Code. Not satisfied but without first filing a motion for reconsideration, the petitioner has commenced this special civil action under Rule 64, in relation to Rule 65, Rules of Court, claiming that the COMELEC committed grave abuse of discretion in thereby dismissing his criminal complaint. Parties Positions The petitioner contended that the COMELEC's point of view was unduly restrictive and would defeat the very purpose of the law; that it could be deduced from the exceptions stated in Section 261 (v) of the Omnibus Election Code that the disbursement of public funds within the prohibited period should be limited only to the ordinary prosecution of public administration and for emergency purposes; and that any expenditure other than such was proscribed by law. For his part, City Mayor Ting claimed that the mere acquisition of land to be used as a public cemetery could not be classified as public works; that there would be public works only where and when there was an actual physical activity being undertaken and after an order to commence work had been issued by the owner to the contractor.

The COMELEC stated that the petition was premature because the petitioner did not first present a motion for reconsideration, as required by Section 1(d), Rule 13 of the 1993 COMELEC Rules of Procedure;4 and that as the primary body empowered by the Constitution to investigate and prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses and malpractices,5 it assumed full discretion and control over determining whether or not probable cause existed to warrant the prosecution in court of an alleged election offense committed by any person. The Office of the Solicitor General (OSG) concurred with the COMELEC to the effect that the acquisition of the land within the election period for use as a public cemetery was not covered by the 45-day public works ban under Section 261(v) of the Omnibus Election Code; but differed from the COMELEC as to the issuance of Treasury Warrant No. 0001534514, opining that there was probable cause to hold City Mayor Ting and City Treasurer Garcia liable for a violation of Section 261(w), subparagraph (b), of the Omnibus Election Code. Issues The issues to be resolved are: (1) Whether or not the petition was premature; (2) Whether or not the acquisition of Lots 5860 and 5881 during the period of the election ban was covered by the term public works as to be in violation of Section 261 (v) of the Omnibus Election Code; and (3) Whether or not the issuance of Treasury Warrant No. 0001534514 during the period of the election ban was in violation of Section 261 (w) of the Omnibus Election Code. Ruling of the Court The petition is meritorious. I The Petition Was Not Premature The indispensable elements of a petition for certiorari are: (a) that it is directed against a tribunal, board or officer exercising judicial or quasi-judicial functions; (b) that such tribunal, board or officer has acted without or in excess of jurisdiction or with grave abuse of discretion; and (c) that there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law.6 The COMELEC asserts that the "plain, speedy and adequate" remedy available to the petitioner was to file a motion for reconsideration vis--vis the assailed resolution, as required in the 1993 COMELEC Rules of Procedure; and that his omission to do so and his immediately invoking the certiorari jurisdiction of the Supreme Court instead rendered his petition premature. We do not sustain the COMELEC. As a rule, it is necessary to file a motion for reconsideration in the court of origin before invoking the certiorari jurisdiction of a superior court. Hence, a petition for certiorari will not be entertained unless the public respondent has been given first the opportunity through a motion for reconsideration to correct the error being imputed to him.7 The rule is not a rigid one, however, for a prior motion for reconsideration is not necessary in some situations, including the following: a. Where the order is a patent nullity, as where the court a quo has no jurisdiction; b. Where the questions raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court; c. Where there is an urgent necessity for the resolution of the question, and any further delay would prejudice the interests of the Government or of the petitioner, or the subject matter of the action is perishable; d. Where, under the circumstances, a motion for reconsideration would be useless; e. Where the petitioner was deprived of due process and there is extreme urgency for relief; f. Where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable;

g. Where the proceedings in the lower court are a nullity for lack of due process; h. Where the proceedings were ex parte or in which the petitioner had no opportunity to object; and i. Where the issue raised is one purely of law or where public interest is involved.8 That the situation of the petitioner falls under the last exception is clear enough. The petitioner challenges only the COMELECs interpretation of Section 261(v) and (w) of the Omnibus Election Code. Presented here is an issue purely of law, considering that all the facts to which the interpretation is to be applied have already been established and become undisputed. Accordingly, he did not need to first seek the reconsideration of the assailed resolution. The distinctions between a question of law and a question of fact are well known. There is a question of law when the doubt or difference arises as to what the law is on a certain state of facts. Such a question does not involve an examination of the probative value of the evidence presented by the litigants or any of them. But there is a question of fact when the doubt arises as to the truth or falsehood of the alleged facts or when the query necessarily invites calibration of the whole evidence, considering mainly the credibility of witnesses, existence and relevancy of specific surrounding circumstances, their relation to one another and to the whole, and the probabilities of the situation.9 II Acquisition of Lots 5860 And 5881 During the Period of the Election Ban, Not Considered as "Public Works" in Violation of Sec. 261 (v), Omnibus Election Code The COMELEC held in its resolution dated February 18, 2008 that: To be liable for violation of Section 261 (v), supra, four (4) essential elements must concur and they are: 1. A public official or employee releases, disburses, or expends any public funds; 2. The release, disbursement or expenditure of such funds must be within forty-five days before regular election; 3. The release, disbursement or expenditure of said public funds is for any and all kinds of public works; and 4. The release, disbursement or expenditure of the public funds should not cover any exceptions of Section 261 (v). (Underscoring supplied). Applying the foregoing as guideline, it is clear that what is prohibited by law is the release, disbursement or expenditure of public funds for any and all kinds of public works. Public works is defined as fixed works (as schools, highways, docks) constructed for public use or enjoyment esp. when financed and owned by the government. From this definition, the purchase of the lots purportedly to be utilized as cemetery by the City Government of Tuguegarao cannot by any stretch of imagination be considered as public works, hence it could not fall within the proscription as mandated under the aforementioned section of the Omnibus Election Code. And since the purchase of the lots is not within the contemplation of the word public works, the third of the elements stated in the foregoing guideline is not present in this case. Hence since not all the elements concurred, the respondents are not liable for violation of Section 261 (v) of the Omnibus Election Code. The foregoing ratiocination of the COMELEC is correct. Section 261(v) of the Omnibus Election Code provides as follows: Section 261. Prohibited acts.- The following shall be guilty of an election offense: xxx (v) Prohibition against release, disbursement or expenditure of public funds.- Any public official or employee including barangay officials and those of government-owned or controlled corporations and their subsidiaries, who, during forty-five days before a regular election and thirty days before a special election, releases, disburses or expends any public funds: (1) Any and all kinds of public works, except the following: (a) Maintenance of existing and/or completed public works project: Provided, that not more than the average number of laborers or employees already employed therein during the sixth- month period immediately prior to the beginning of the forty-five day period before election day shall be permitted to work during such

time:Provided, further, That no additional laborer shall be employed for maintenance work within the said period of forty-five days; (b) Work undertaken by contract through public bidding held, or negotiated contract awarded, before the forty-five day period before election: Provided, That work for the purpose of this section undertaken under the so-called "takay" or "paquiao" system shall not be considered as work by contract; (c) Payment for the usual cost of preparation for working drawings, specifications, bills of materials and equipment, and all incidental expenses for wages of watchmen and other laborers employed for such work in the central office and field storehouses before the beginning of such period: Provided, That the number of such laborers shall not be increased over the number hired when the project or projects were commenced; and (d) Emergency work necessitated by the occurrence of a public calamity, but such work shall be limited to the restoration of the damaged facility. No payment shall be made within five days before the date of election to laborers who have rendered services in projects or works except those falling under subparagraphs (a), (b), (c), and (d), of this paragraph. This prohibition shall not apply to ongoing public works projects commenced before the campaign period or similar projects under foreign agreements. For purposes of this provision, it shall be the duty of the government officials or agencies concerned to report to the Commission the list of all such projects being undertaken by them. (2) The Ministry of Social Services and Development and any other office in other ministries of the government performing functions similar to the said ministry, except for salaries of personnel and for such other expenses as the Commission may authorize after due and necessary hearing. Should a calamity or disaster occur, all releases normally or usually coursed through the said ministries shall be turned over to, and administered and disbursed by, the Philippine National Red Cross, subject to the supervision of the Commission on Audit or its representatives, and no candidate or his or her spouse or member of his family within the second civil degree of affinity or consanguinity shall participate, directly or indirectly, in the distribution of any relief or other goods to the victims of the calamity or disaster; and (3) The Ministry of Human Settlements and any other office in any other ministry of the government performing functions similar to the said ministry, except for salaries of personnel and for such other necessary administrative or other expenses as the Commission may authorize after due notice and hearing. As the legal provision shows, the prohibition of the release, disbursement or expenditure of public funds for any and all kinds of public works depends on the following elements: (a) a public official or employee releases, disburses or spends public funds; (b) the release, disbursement and expenditure is made within 45 days before a regular election or 30 days before a special election; and (c) the public funds are intended for any and all kinds of public works except the four situations enumerated in paragraph (v) of Section 261. It is decisive to determine, therefore, whether the purchase of the lots for use as a public cemetery constituted public works within the context of the prohibition under the Omnibus Election Code. We first construe the term public works which the Omnibus Election Code does not define with the aid of extrinsic sources. The Local Government Code of 1991 considers public works to be the fixed infrastructures and facilities owned and operated by the government for public use and enjoyment. According to the Code, cities have the responsibility of providing infrastructure facilities intended primarily to service the needs of their residents and funded out of city funds, such as, among others, roads and bridges; school buildings and other facilities for public elementary and secondary schools; and clinics, health centers and other health facilities necessary to carry out health services.10 Likewise, the Department of Public Works and Highways (DPWH), the engineering and construction arm of the government, associates public works with fixed infrastructures for the public. In the declaration of policy pertinent to the DPWH, Sec. 1, Chapter 1, Title V, Book IV, Administrative Code of 1987, states: Sec. 1. Declaration of Policy. - The State shall maintain an engineering and construction arm and continuously develop its technology, for the purposes of ensuring the safety of all infrastructure facilities and securing for all public works and highways the highest efficiency and the most appropriate quality in construction. The planning, design, construction and maintenance of infrastructure facilities, especially national highways, flood control and water resources development systems, and other public works in accordance with national development objectives, shall be the responsibility of such an engineering and construction arm. However, the exercise of this responsibility shall be decentralized to the fullest extent feasible. The enumeration in Sec. 1, supra "infrastructure facilities, especially national highways, flood control and water resources development systems, and other public works in accordance with national development objectives"

means that only the fixed public infrastructures for use of the public are regarded as public works. This construction conforms to the rule of ejusdem generis, which Professor Black has restated thuswise:11 It is a general rule of statutory construction that where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned. But this rule must be discarded where the legislative intention is plain to the contrary. Accordingly, absent an indication of any contrary legislative intention, the term public works as used in Section 261 (v) of the Omnibus Election Code is properly construed to refer to any building or structure on land or to structures (such as roads or dams) built by the Government for public use and paid for by public funds. Public works are clearly works, whether of construction or adaptation undertaken and carried out by the national, state, or municipal authorities, designed to subserve some purpose of public necessity, use or convenience, such as public buildings, roads, aqueducts, parks, etc.; or, in other words, all fixed works constructed for public use.12 It becomes inevitable to conclude, therefore, that the petitioner's insistence that the acquisition of Lots 5860 and 5881 for use as a public cemetery be considered a disbursement of the public funds for public works in violation of Section 261(v) of the Omnibus Election Code was unfounded and unwarranted. III Issuance of the Treasury Warrant During the Period of the Election Ban Violated Section 261 (w), Omnibus Election Code Section 261(w) of the Omnibus Election Code reads thus: xxx (w) Prohibition against construction of public works, delivery of materials for public works and issuance of treasury warrants and similar devices.- During the period of forty five days preceding a regular election and thirty days before a special election, any person who: (a) undertakes the construction of any public works, except for projects or works exempted in the preceding paragraph; or (b) issues, uses or avails of treasury warrants or any device undertaking future delivery of money, goods or other things of value chargeable against public funds. xxx The OSG posits that the foregoing provision is violated in either of two ways: (a) by any person who, within 45 days preceding a regular election and 30 days before a special election, undertakes the construction of any public works except those enumerated in the preceding paragraph; or (b) by any person who issues, uses or avails of treasury warrants or any device undertaking future delivery of money, goods or other things of value chargeable against public funds within 45 days preceding a regular election and 30 days before a special election. We concur with the OSGs position. Section 261 (w) covers not only one act but two, i.e., the act under subparagraph (a) above and that under subparagraph (b) above. For purposes of the prohibition, the acts are separate and distinct, considering that Section 261(w) uses the disjunctive or to separate subparagraphs (a) and (b). In legal hermeneutics, or is a disjunctive that expresses an alternative or gives a choice of one among two or more things.13 The word signifies disassociation and independence of one thing from another thing in an enumeration. It should be construed, as a rule, in the sense that it ordinarily implies as a disjunctive word.14 According to Black,15 too, the word and can never be read as or, or vice versa, in criminal and penal statutes, where the rule of strict construction prevails. Consequently, whether or not the treasury warrant in question was intended for public works was even of no moment in determining if the legal provision was violated. There was a probable cause to believe that Section 261(w), subparagraph (b), of the Omnibus Election Code was violated when City Mayor Ting and City Treasurer Garcia issued Treasury Warrant No. 0001534514 during the election ban period. For this reason, our conclusion that the COMELEC en banc gravely abused its discretion in dismissing E.O. Case No. 06-14 for lack of merit is inevitable and irrefragable. True, the COMELEC, as the body tasked by no less than the 1987 Constitution to investigate and prosecute violations of election laws,16 has the full discretion to determine whether or not an election case is to be filed against a person and, consequently, its findings as to the existence of probable cause are not subject to review by courts. Yet, this policy of non-interference does not apply where the COMELEC, as the prosecuting or investigating body, was acting arbitrarily and capriciously, like herein, in reaching a different but patently erroneous result.17 The COMELEC was plainly guilty of grave abuse of discretion. Grave abuse of discretion is present "when there is a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, such as where the power is exercised in an arbitrary or despotic manner by reason

of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law."18 WHEREFORE, WE grant the petition for certiorari and set aside the resolution dated February 18, 2008 issued in E.O. Case No. 06-14 by the Commission of Elections en banc. The Commission on Elections is ordered to file the appropriate criminal information against respondents City Mayor Randolph S. Ting and City Treasurer Salvacion Garcia of Tuguegarao City for violation of Section 261 (w), subparagraph (b), of the Omnibus Election Code. Costs of suit to be paid by the private respondents. SO ORDERED.

G.R. No. 201796

January 15, 2013

GOVERNOR SADIKUL A. SAHALI and VICE-GOVERNOR RUBY M. SAHALl, Petitioners, vs. COMMISSION ON ELECTIONS (FIRST DIVISION), RASHIDIN H. MA TBA and JILKASI J. USMAN, Respondents. RESOLUTION REYES, J.: This is a Petition for Certiorari under Rule 65 in relation to Rule 64 of the Rules of Court filed by Sadikul A. Sahali (Sadikul) and Ruby M. Sahali (Ruby), assailing the Order1 dated May 3, 2012 issued by the First Division of the Commission on Elections (COMELEC) in EPC Nos. 2010-76 and 2010-77. During the May 10, 2010 elections, Sadikul and private respondent Rashidin H. Matba (Matba) were two of the four candidates who ran for the position of governor in the Province of Tawi-Tawi while Ruby and private respondent Jilkasi J. Usman (Usman) ran for the position of Vice-Governor.2 On May 14, 2010, the Provincial Board of Canvassers (PBOC) proclaimed petitioners Sadikul and Ruby as the duly elected governor and vice-governor, respectively, of the province of Tawi-Tawi. In the statement of votes issued by the PBOC, petitioner Sadikul garnered a total of 59,417 as against private respondent Matbas 56,013,3while petitioner Ruby prevailed over private respondent Usman, with votes of 61,005 and 45,127, respectively.4 Alleging that the said elections in the Province of Tawi-Tawi were attended by massive and wide-scale irregularities, Matba filed an Election Protest Ad Cautelam5 with the COMELEC. Matba contested the results in 39 out of 282 clustered precincts that functioned in the province of Tawi-Tawi. The said election protest filed by Matba was raffled to the First Division of the COMELEC and was docketed as EPC No. 2010-76. Usman also filed an Election Protest Ad Cautelam6 with the COMELEC, contesting the results in 39 out of the 282 clustered precincts in the Province of Tawi-Tawi. Usmans election protest was likewise raffled to the First Division of the COMELEC and was docketed as EPC No. 2010-77. The respective election protests filed by private respondents Matba and Usman prayed, inter alia, for the technical examination of the ballots, Election Day Computerized Voters List (EDCVL), the Voters Registration Record (VRR), and the Book of Voters in all the protested precincts of the province of Tawi-Tawi.7 After Sadikul filed his Answer8 with counter-protest, a preliminary conference was conducted by the COMELEC in EPC No. 2010-76. On November 24, 2011, the COMELEC issued a Preliminary Conference Order9 in EPC No. 2010-76. Thereafter, the COMELEC issued an Order10 dated November 23, 2011 which directed the retrieval and delivery of the 39 ballot boxes containing the ballots in the 39 protested clustered precincts as well as the election paraphernalia therein. Meanwhile, in EPC No. 2010-77, the COMELEC, after Rubys filing of her Answer11 with counter-protest, conducted a preliminary conference on January 4, 2012. On January 20, 2012, the COMELEC issued its Preliminary Conference Order12 in the said case. On January 17, 2012, the COMELEC resolved to consolidate EPC No. 2010-76 and EPC No. 2010-77. On February 9, 2012, the retrieval and delivery of the ballot boxes and other election documents from the 39 protested precincts were completed. On February 20, 2012, the COMELEC First Division ordered the recount of the contested ballots, directing the creation of five recount committees for the said purpose.13 On February 24, 2012, Matba and Usman filed a Manifestation and Ex-Parte Motion (Re: Order Dated 20 February 2012), requesting that they be allowed to secure photocopies of the contested ballots. Further, they moved for a technical examination of the EDCVL, the VRR and the Book of Voters for the contested precincts in the province of Tawi-Tawi by comparing the signature and the thumbmarks appearing on the EDCVL as against those appearing on the VRRs and the Book of Voters.14 Private respondents Matba and Usman averred that, instead of recounting the ballots in the pilot precincts constituting 20% of the protested precincts, the COMELEC First Division should order the technical examination of the said election paraphernalia from the 38 clustered precincts that are the subject of both election protests filed by them. On March 5, 2012, the COMELEC First Division issued an Order15 which granted the said ex-parte motion filed by Matba and Usman. Thus, the COMELEC First Division directed its Election Records and Statistics Department (ERSD) to conduct a technical examination of the said election paraphernalia by comparing the signature and thumbmarks appearing on the EDCVL as against those appearing on the VRRs and the Book of Voters. On March 9, 2012, Sadikul and Ruby jointly filed with the COMELEC First Division a Strong Manifestation of Grave Concern and Motion for Reconsideration (Of the Order Dated March 5, 2012)16. They asserted that the March 5,

2012 Order issued by the COMELEC First Division, insofar as it directed the technical examination of the EDCVL, the VRR and the Book of Voters, should be reversed on account of the following: first, the said Order was issued without due process since the COMELEC First Division did not allow them to oppose the said ex-parte motion; second, the COMELEC First Division cannot just order a technical examination in the absence of published rules on the matter; and third, the COMELEC First Division could not just examine the said election paraphernalia without violating the Precautionary Protection Order issued by the Presidential Electoral Tribunal in the protest case between Manuel Roxas and Jejomar Binay. On March 15, 2012, Matba and Usman filed with the COMELEC First Division their counter-manifestation17 to the said manifestation and motion for reconsideration filed by Sadikul and Ruby. They asserted therein that Sadikul and Ruby were not deprived of due process when the COMELEC First Division issued its March 15, 2012 Order. They averred that their respective election protests and the Preliminary Conference Orders issued by the COMELEC First Division all indicated that they would move for the technical examination of the said election paraphernalia. Nonetheless, they pointed out that Sadikul and Ruby failed to express any objection to their intended motion for technical examination of the said election paraphernalia. Further, Matba and Usman claimed that said motion for technical examination is not a contentious motion since the intended technical examination would not prejudice the rights of Sadikul and Ruby considering that the same only included the EDCVL, the VRR and the Book of Voters, and not the ballots. On March 23, 2012, Sadikul and Ruby then filed with the COMELEC First Division their Reply18 to the countermanifestation filed by Matba and Usman. In turn, Matba and Usman filed with the COMELEC First Division their Rejoinder19 on March 30, 2012. On May 3, 2012, the COMELEC First Division issued the herein assailed Order20which denied the said motion for reconsideration of the March 5, 2012 Order filed by Sadikul and Ruby. The COMELEC First Division maintained that Sadikul and Ruby were not deprived of due process. It pointed out that the intention of Matba and Usman to ask for the technical examination of the said election documents had always been apparent from the filing of their separate election protests, preliminary conference briefs and their intention to offer as evidence all election documents and paraphernalia such as the EDCVL, VRRs and Book of Voters on the protested precincts. Further, the COMELEC First Division opined that the insinuation asserted by Sadikul and Ruby that there are no published rules governing the technical examination of election paraphernalia is untenable. It pointed out that the technical examination of election paraphernalia is governed by Section 1, Rule 18 of COMELEC Resolution No. 8804. As to the Precautionary Protection Order issued in the protest case between Manuel Roxas and Jejomar Binay, the COMELEC First Division averred that it would request a clearance from the Presidential Electoral Tribunal for the conduct of said technical examination. Hence, petitioners Sadikul and Ruby filed the instant petition with this Court essentially asserting that the COMELEC First Division committed grave abuse of discretion amounting to lack or excess of jurisdiction when: first, it did not give them the opportunity to oppose the motion for technical examination filed by Matba and Usman; and second, it ordered the technical examination of the said election paraphernalia despite the lack of sanction and published rules governing such examination. The petition is denied. The petitioners resort to the extraordinary remedy of certiorari to assail an interlocutory order issued by the COMELEC First Division is amiss. "A party aggrieved by an interlocutory order issued by a Division of the COMELEC in an election protest may not directly assail the order in this Court through a special civil action for certiorari. The remedy is to seek the review of the interlocutory order during the appeal of the decision of the Division in due course."21 Under the Constitution, the power of this Court to review election cases falling within the original exclusive jurisdiction of the COMELEC only extends to final decisions or resolutions of the COMELEC en banc, not to interlocutory orders issued by a Division thereof. Section 7, Article IX of the Constitution mandates: Sec. 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. (Emphasis ours) In Ambil, Jr. v. COMELEC,22 this Court elucidated on the import of the said provision in this wise: We have interpreted this provision to mean final orders, rulings and decisions of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers." This decision must be a final decision or resolution of the Comelec en banc, not of a division, certainly not an interlocutory order of a division. The Supreme Court has no power to review via certiorari, an interlocutory order or even a final resolution of a Division of the Commission on Elections.

The mode by which a decision, order or ruling of the Comelec en banc may be elevated to the Supreme Court is by the special civil action of certiorari under Rule 65 of the 1964 Revised Rules of Court, now expressly provided in Rule 64, 1997 Rules of Civil Procedure, as amended. Rule 65, Section 1, 1997 Rules of Civil Procedure, as amended, requires that there be no appeal, or any plain, speedy and adequate remedy in the ordinary course of law. A motion for reconsideration is a plain and adequate remedy provided by law. Failure to abide by this procedural requirement constitutes a ground for dismissal of the petition. In like manner, a decision, order or resolution of a division of the Comelec must be reviewed by the Comelec en banc via a motion for reconsideration before the final en banc decision may be brought to the Supreme Court on certiorari. The pre-requisite filing of a motion for reconsideration is mandatory. x x x.23 (Citations omitted and emphasis supplied) Here, the Orders dated March 5, 2012 and May 3, 2012 issued by the First Division of the COMELEC were merely interlocutory orders since they only disposed of an incident in the main case i.e. the propriety of the technical examination of the said election paraphernalia. Thus, the proper recourse for the petitioners is to await the decision of the COMELEC First Division in the election protests filed by Matba and Usman, and should they be aggrieved thereby, to appeal the same to the COMELEC en banc by filing a motion for reconsideration.24 The petitioners, citing the case of Kho v. COMELEC,25 nevertheless insist that this Court may take cognizance of the instant Petition for Certiorari since the COMELEC en banc is not the proper forum in which the said interlocutory orders issued by the COMELEC First Division can be reviewed. The petitioners reliance on Kho is misplaced. In Kho, the issue was whether a Division of the COMELEC may admit an answer with counter-protest which was filed beyond the reglementary period. This Court held that the COMELEC First Division gravely abused its discretion when it admitted the answer with counter-protest that was belatedly filed. On the propriety of a filing a Petition for Certiorari with this Court sans any motion for reconsideration having been filed with the COMELEC en banc, it was held therein that, as an exception, direct resort to this Court via certiorari assailing an interlocutory order may be allowed when a Division of the COMELEC commits grave abuse of discretion tantamount to lack of jurisdiction. Thus: As to the issue of whether or not the case should be referred to the COMELEC en banc, this Court finds the respondent COMELEC First Division correct when it held in its order dated February 28, 1996 that no final decision, resolution or order has yet been made which will necessitate the elevation of the case and its records to the Commission en banc. No less than the Constitution requires that the election cases must be heard and decided first in division and any motion for reconsideration of decisions shall be decided by the commission en banc. Apparently, the orders dated July 26, 1995, November 15 1995 and February 28, 1996 and the other orders relating to the admission of the answer with counter-protest are issuances of a Commission in division and are all interlocutory orders because they merely rule upon an incidental issue regarding the admission of Espinosas answer with counter-protest and do not terminate or finally dispose of the case as they leave something to be done before it is finally decided on the merits. In such a situation, the rule is clear that the authority to resolve incidental matters of a case pending in a division, like the questioned interlocutory orders, falls on the division itself, and not on the Commission en banc. x x x xxxx Furthermore, a look at Section 2, Rule 3 of the COMELEC Rules of Procedure confirms that the subject case does not fall on any of the instances over which the Commission en banc can take cognizance of. It reads as follows: "Section 2. The Commission en banc. - The Commission shall sit en banc in cases hereinafter specifically provided, or in pre-proclamation cases upon a vote of a majority of the members of a Commission, or in all other cases where a division is not authorized to act, or where, upon a unanimous vote of all the members of a Division, an interlocutory matter or issue relative to an action or proceeding before it is decided to be referred to the Commission en banc." In the instant case, it does not appear that the subject controversy is one of the cases specifically provided under the COMELEC Rules of Procedure in which the Commission may sit en banc. Neither is it shown that the present controversy a case where a division is not authorized to act nor a situation wherein the members of the First Division unanimously voted to refer the subject case to the Commission en banc. Clearly, the Commission en banc, under the circumstances shown above, can not be the proper forum which the matter concerning the assailed interlocutory orders can be referred to. In a situation such as this where the Commission in division committed grave abuse of discretion or acted without or in excess of jurisdiction in issuing interlocutory orders relative to an action pending before it and the controversy did not fall under any of the instances mentioned in section 2, Rule 3 of the COMELEC Rules of Procedure, the remedy of the aggrieved party is not to refer the controversy to the Commission en banc as this is not permissible under its present rules but to elevate it to this Court via a petition for certiorari under Rule 65 of the Rules of Court.26 (Citations omitted and emphasis ours)

Thus, exceptionally, this Court may take cognizance of a certiorari action directed against an interlocutory order issued by a Division of the COMELEC when the following circumstances are present: first, the order was issued without jurisdiction or in excess of jurisdiction or with grave abuse of discretion tantamount to lack or excess of jurisdiction; and second, under the COMELEC Rules of Procedure, the subject of the controversy is a matter which (1) the COMELEC en banc may not sit and consider or (2) a Division is not authorized to act or (3) the members of the Division unanimously vote to refer to the COMELEC en banc.27 The exception in Kho does not apply in the instant case since the COMELEC First Division is authorized to act on the ex-parte motion for the technical examination of the said election paraphernalia. The COMELEC First Division has already acquired jurisdiction over the election protests filed by Matba and Usman. Concomitant with such acquisition of jurisdiction is the authority of the COMELEC First Division to rule on the issues raised by the parties and all incidents arising therefrom, including the authority to act on the ex-parte motion for technical examination of said election paraphernalia. In Kho, the COMELEC First Division did not acquire jurisdiction on the answer with counter-protest since it was filed beyond the reglementary period and, consequently, did not have any authority to act on the issues raised therein and all incidents arising therefrom. Thus: It is worthy to note that as early as in the case of Arrieta vs. Rodriguez, this Court had firmly settled the rule that the counter-protest must be filed within the period provided by law, otherwise, the forum loses its jurisdiction to entertain the belatedly filed counter-protest. In the case at bar, there is no question that the answer with counter-protest of Espinosa was filed outside the reglementary period provided for by law. As such, the COMELEC First Division has no jurisdictional authority to entertain the belated answer with counter-protest much less pass upon and decide the issues raised therein. It follows therefore that the order of July 26, 1995 which pertains to the admission of the answer with counter-protest of Espinosa as well as the other consequent orders implementing the order of admission issued by the COMELEC First Division are void for having been issued without jurisdiction. Even if petitioner Kho did not file a motion for reconsideration of the order dated July 26, 1995 admitting the answer with counter-protest, the jurisdictional infirmity, brought about by the late filing of the answer to the protest, persist and can not be cured by the omission on the part of the protestee-petitioner to seek a reconsideration of the order dated July 26, 1995.28 (Citation omitted and emphasis ours) Even if this Court is to disregard the procedural lapse committed by the petitioners and rule on the issues raised, the instant petition would still be denied. The petitioners claim that they were denied due process when the COMELEC granted the motion for technical examination filed by Matba and Usman without giving them the opportunity to oppose the said motion. This Court does not agree. It bears stressing that the COMELEC, in election disputes, is not duty-bound to notify and direct a party therein to file an opposition to a motion filed by the other party. It is incumbent upon the party concerned, if he/she deems it necessary, to file an opposition to a motion within five days from receipt of a copy of the same without awaiting for the COMELECs directive to do so. On this score, Section 3, Rule 9 of COMELEC Resolution No. 880429 clearly provides that: Sec. 3. No hearings on motions. Motions shall not be set for hearing unless the Commission directs otherwise. Oral argument in support thereof shall be allowed only upon the discretion of the Commission. The adverse party may file opposition five days from receipt of the motion, upon the expiration of which such motion is deemed submitted for resolution. The Commission shall resolve the motion within five days. (Emphasis ours) If the party concerned, despite receipt of a copy of the motion that was filed with the COMELEC, did not file an opposition to the said motion, the motion would be deemed submitted for resolution upon the expiration of the period to file an opposition thereto. It should be stressed that one of the factors that should be considered in election protests is expediency. Proceedings in election protests are special and expeditious and the early resolution of such cases should not be hampered by any unnecessary observance of procedural rules.30 "The proceedings should not be encumbered by delays. All of these are because the term of elective office is likewise short. There is the personal stake of the contestants which generates feuds and discords. Above all is the public interest. Title to public elective office must not be left long under cloud. Efficiency of public administration should not be impaired. It is thus understandable that pitfalls which may retard the determination of election contests should be avoided."31 Here, the petitioners did not file an opposition to the said motion for technical examination that was filed by Matba and Usman on February 24, 2012. It was only after the COMELEC First Division issued its March 5, 2012 Order that the petitioners decided to register their opposition to the intended technical examination, albeit in the form of a motion for reconsideration of the said Order. Contrary to the petitioners claim, Section 3, Rule 9 of COMELEC Resolution No. 8804 gave them the opportunity to raise their objections to the said motion for technical examination. However, for reasons known only to them, petitioners did not file any opposition to the said motion. Accordingly, it is the petitioners themselves and not the COMELEC First Division who should be faulted for their predicament.

Further, this Court cannot see how due process was denied to the petitioners in the issuance of the COMELEC First Divisions March 5, 2012 Order. The petitioners were able to present their opposition to the said motion for technical examination in their manifestation and motion for reconsideration which they filed with the COMELEC First Division on March 9, 2012. Indeed, the petitioners objections to the technical examination of the said election paraphernalia were exhaustively discussed by the COMELEC First Division in its May 3, 2012 Resolution. Having filed a motion for reconsideration of the COMELEC First Divisions March 5, 2012 Order, the petitioners claim of denial of due process is clearly unfounded. The petitioners should be reminded that due process does not necessarily mean or require a hearing, but simply an opportunity or right to be heard. One may be heard, not solely by verbal presentation but also, and perhaps many times more creditably and predictable than oral argument, through pleadings. In administrative proceedings moreover, technical rules of procedure and evidence are not strictly applied; administrative process cannot be fully equated with due process in its strict judicial sense. Indeed, deprivation of due process cannot be successfully invoked where a party was given the chance to be heard on his motion for reconsideration.32 Anent the issue on the technical examination of election paraphernalia, the petitioners contend that the COMELEC First Division cannot order a technical examination of the said election paraphernalia since there is as yet no published rule therefor. They assert that Section 1, Rule 18 of COMELEC Resolution No. 8804, the rule relied upon by the COMELEC First Division in ordering a technical examination, is vague as it failed to provide the documents that should be subjected to technical examination in election protest cases. At the core of the petitioners assertion is the power of the COMELEC First Division to order the technical examination of the said election paraphernalia. This Court agrees with the petitioners that Section 1, Rule 18 of COMELEC Resolution No. 8804 does not expressly authorize the conduct of technical examination of election paraphernalia as it merely provides for the procedure to be followed in the presentation and reception of evidence in election protest cases. Section 1, Rule 18 of COMELEC Resolution No. 8804, in part, reads: Sec. 1. Presentation and reception of evidence; order of hearing. - The reception of evidence on all matters or issues raised in the protest and counter-protests shall be presented and offered in a hearing upon completion of (a) the recount of ballots, or re-tabulation of election documents, or (b) the technical examination, if warranted. xxxx While Section 1, Rule 18 of COMELEC Resolution No. 8804 does not explicitly provide for the rule on the technical examination of election paraphernalia, it does not mean, however, that the COMELEC First Division does not have the power to order the conduct of such technical examination. The absence of a rule which specifically mandates the technical examination of the said election paraphernalia does not mean that the COMELEC First Division is barred from issuing an order for the conduct thereof. The power of the COMELEC First Division to order the technical examination election paraphernalia in election protest cases stems from its "exclusive original jurisdiction over all contest relating to the elections, returns and qualifications of all elective regional, provincial and city officials".33 Otherwise stated, the express grant of power to the COMELEC to resolve election protests carries with it the grant of all other powers necessary, proper, or incidental to the effective and efficient exercise of the power expressly granted. Verily, the exclusive original jurisdiction conferred by the constitution to the COMELEC to settle said election protests includes the authority to order a technical examination of relevant election paraphernalia, election returns and ballots in order to determine whether fraud and irregularities attended the canvass of the votes. There is no gainsaying that the COMELEC is mandated by law to resolve election cases expeditiously and promptly. "For in this specie of controversies involving the determination of the true will of the electorate, time indeed is of paramount importance second to none perhaps, except for the genuine will of the majority. To be sure, an election controversy which by its very nature touches upon the ascertainment of the peoples choice, as gleaned from the medium of the ballot, should be resolved with utmost dispatch, precedence and regard to due process."34 Concomitant to the COMELECs duty to expeditiously resolve election cases is the authority to resort to every reasonable and efficient means available to it to settle the controversy. The COMELEC is thus enjoined, "not only to maintain its sense of urgency in resolving these cases, but also to explore every reasonable and feasible means of ascertaining which candidate was duly elected."35 Thus, this Court has declared: An election contest, unlike an ordinary civil action, is clothed with a public interest. The purpose of an election protest is to ascertain whether the candidate proclaimed by the board of canvassers is the lawful choice of the people. What is sought is the correction of the canvass of votes, which was the basis of proclamation of the winning candidate. An election contest therefore involves not only the adjudication of private and pecuniary interests of rival candidates but paramount to their claims is the deep public concern involved and the need of dispelling the uncertainty over the real choice of the electorate. And the court has the corresponding duty to ascertain by all means within its command who is the real candidate elected by the people.36 (Emphasis ours)

Here, the technical examination ordered by the COMELEC First Division, by comparing the signature and the thumbmarks appearing on the EDCVL as against those appearing on the VRRs and the Book of Voters, is a reasonable, efficient and expeditious means of determining the truth or falsity of the allegations of fraud and irregularities in the canvass of the votes in the province of Tawi-Tawi. Accordingly, the COMELEC First Division did not commit any abuse of discretion when it allowed the technical examination of the said election paraphernalia. WHEREFORE, in consideration of the foregoing disquisitions, the petition is DENIED. The assailed Order dated May 3, 2012 issued by the First Division of the Commission on Elections in EPC Nos. 2010-76 and 2010-77 is AFFIRMED. SO ORDERED

G.R. No. 132603

September 18, 2000

ELPIDIO M. SALVA, VILMA B. DE LEON, CLEMENTE M. MATIRA, REGION P. DE LEON, MARILOU C. DE LEON, JAIME RELEVO, JOEY S. VERGARA, CARMENCITA A. SALVA, DIONISIO B. DE LEON, JORGE S. VERGARA, GORGONIO B. DE LEON, AND OTHERS TOO NUMEROUS TO ENUMERATE AS A CLASS SUIT,petitioners, vs. HON. ROBERTO L. MAKALINTAL, Presiding Judge, Regional Trial Court, Br. XI, Balayan, Batangas; HON. SANGGUNIANG PANGLALA WIGAN OF BATANGAS, BATANGAS CITY; HON. SANGGUNIANG PANGBAYAN, CALACA, BATANGAS; and HON. COMMISSION ON ELECTIONS, respondents. BUENA, J.: This is an appeal by certiorari under Rule 45 of the Rules of Court seeking the reversal of the Order dated February 25, 1998,1 of the Regional Trial Court of Balayan, Batangas, Branch XI,2 in Civil Case No. 3442, denying the issuance of a temporary restraining order and/or preliminary injunction to enjoin the Commission on Elections (COMELEC) from holding the plebiscite scheduled on February 28, 1998, on the ground of lack of jurisdiction. The facts are undisputed. On February 23, 1998, petitioners, as officials and residents of barangay San Rafael, Calaca, Batangas, filed a class suit against the Sangguniang Panglalawigan of Batangas, Sangguniang Pambayan of Calaca, Batangas, and the Commission on Elections (COMELEC), docketed as Civil Case No. 3442, before the Regional Trial Court of Balayan, Batangas, Branch XI, for annulment of Ordinance No. 05 and Resolution No. 345, series of 1997, both enacted by the Sangguniang Panglalawigan of Batangas, and COMELEC Resolution No. 2987, series of 199S, with prayer for preliminary injunction/temporary restraining order. Ordinance No. 05 3 declared the abolition ofbarangay San Rafael and its merger with barangay Dacanlao, municipality of Calaca, Batangas and accordingly instructed the COMELEC to conduct the required plebiscite as provided under Sections 9 and 10 of Republic Act No. 7160, otherwise known as the Local Government Code of 1991.4 On the other hand, Resolution No. 345 5affirmed the effectivity of Ordinance No. 05, thereby overriding the veto6 exercised by the governor of Batangas.7Ordinance No. 05 was vetoed by the governor of Batangas for being ultra vires, particularly, as it was not shown that the essential requirements under Section 9, in relation to Section 7, of Republic Act No. 7160, referring to the attestations or certifications of the Department of Finance (DOF), National Statistics Office (NSO) and the Land Management Bureau of the Department of Environment and Natural Resources (DENR), were obtained. Pursuant to the foregoing ordinance and resolution, on February 10, 1998, the COMELEC promulgated Resolution No. 2987, providing for the rules and regulations governing the conduct of the required plebiscite scheduled on February 28, 1998, to decide the issue of the abolition of barangay San Rafael and its merger with barangayDacanlao, Calaca, Batangas.8 Simultaneous with the filing of the action before the trial court, petitioners also filed an ex parte motion for the issuance of a temporary restraining order to enjoin respondents from enforcing Ordinance No. 05, Resolution No. 345, and COMELEC Resolution No. 2987. In an Order dated February 25, 1998, the trial court denied the ex parte motion for the issuance of a temporary restraining order and/or preliminary injunction for lack of jurisdiction. According to the trial court, the temporary restraining order/injunction sought by petitioners is directed only to COMELEC Resolution No. 2987. The trial court ruled that any petition or action questioning an act, resolution or decision of the COMELEC must be brought before the Supreme Court.9 On February 27, 1998, petitioners filed the instant petition with prayer for a temporary restraining order, without filing a motion for reconsideration of the trial court's Order dated February 25, 1998, claiming the urgency or immediate necessity to enjoin the conduct of the plebiscite scheduled on February 28, 1998.10 In a Resolution dated March 10, 1998, the Court directed the parties to maintain the status quo prevailing at the time of the filing of the petition.11 On August 28, 1998, the Solicitor General filed a Manifestation and Motion in lieu of Comment, declaring that he concurs with petitioners' cause and recommending that the instant petition be given due course.12 Consequently, the Court further resolved on September 29, 1998 to require the COMELEC and the Sangguniang Panglalawiganof Batangas to submit their own Comment on the petition. In a Resolution dated June 15, 1999, the Court resolved to give due course to the petition and require the parties to submit their respective memoranda.13 In their Memorandum filed on October 26, 1999, petitioners submitted the following issue for the resolution of this Court: "WHETHER OR NOT THE RESPONDENT COURT HAS JURISDICTION TO ENJOIN THE COMELEC FROM IMPLEMENTING ITS RESOLUTION NO. 2987, SERIES OF 1998, WHICH PROVIDED FOR THE RULES AND REGULATIONS FOR THE CONDUCT OF THE PLEBISCITE SCHEDULED ON FEBRUARY 28, 1998 TO DECIDE ON THE ABOLITION OF BARANGAY SAN RAFAEL AND ITS MERGER WITH

BARANGAY DACANLAO, CALACA, BATANGAS, PENDING THE DETERMINATION OF CIVIL CASE NO. 3442 FOR THE ANNULMENT OF ORDINANCE NO. 05, RESOLUTION NO. 345 AND COMELEC RESOLUTION NO. 2987."14 First, petitioners contend that the assailed Order dated February 25, 1998, of the Regional Trial Court of Balayan, Batangas, Branch XI, encourages multiplicity of suit[s] and splitting a single cause of action," contrary to Section 3, Rule 2, of the Rules of Court.15 Petitioners maintain that since COMELEC Resolution No. 2987 was only issued pursuant to Ordinance No. 05 and Resolution No. 345 of the Sangguniang Panglalawigan of Batangas, the propriety of the issuance of COMELEC Resolution No. 2987 is dependent upon the validity of the Ordinance No. 05 and Resolution No. 345.16 And considering that the jurisdiction of the trial court to hear and determine the validity of Ordinance No. 05 and Resolution No. 345 is not disputed, the assailed Order dated February 25, 1998, directing petitioners to seek the preliminary injunction and/or temporary restraining order before this Court, advances multiplicity of suits and splitting a single cause of action. Second, petitioners assert that when the COMELEC exercises its quasi judicial functions under Section 52 of the Omnibus Election Code (Batas Pambansa Blg. 881), its acts are subject to the exclusive review by this Court; but when the COMELEC performs a purely ministerial but, such act is subject to scrutiny by the Regional Trial Court,17citing Filipinas Engineering and Machine Shop vs. Ferrer (135 SCRA 25 [1985]), thus: "It cannot be gainsaid that the powers vested by the Constitution and the law on the Commission on Elections may either be classified as those pertaining to its adjudicatory or quasi-judicial functions, or those which are inherently administrative and sometimes ministerial in character."'18 Corollary thereto, petitioners submit that "[t]he conduct of [a] plebiscite, pursuant to Ordinance No. 05 and Resolution No. 345, is not adjudicatory [or quasi judicial] in nature but simply ministerial or administrative in nature [and only] in obedience to the aforesaid Ordinance and Resolution," citing Garces vs. Court of Appeals, 259 SCRA 99 (1996), thus: ". . . To rule otherwise would surely burden the Court with trivial administrative questions that are best ventilated before the RTC [Regional Trial Court], a court which the law vests with the power to exercise original jurisdiction over 'all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi judicial functions'."19 Lastly, petitioners allege that while the plebiscite sought to be enjoined has already been conducted on February 28, 1998, the instant petition is far from being moot and academic, claiming that the actual holding of the said plebiscite could not validate an otherwise invalid ordinance and resolution;20 that there are still substantial matters to be resolved;21 assuming arguendo that this petition has become moot and academic, ". . . courts will decide a question otherwise moot and academic if it is 'capable of repetition, yet evading review"';22 and finally, petitioners maintain that this Court has resolved to require the parties to maintain the status quo prevailing at the time of the filing of the petition, that is, a day before the plebiscite was scheduled to be conducted.23 Concurring with petitioners' arguments, the Solicitor General, in his Memorandum filed on September 7, 1999, asserts that ". . . [I]t is already settled in this jurisdiction that what is contemplated by the terms 'any decision, order or ruling' of the COMELEC reviewable by certiorari to this Honorable Court, as provided under Section 7, Article IXA of the [1987] Constitution, are those that relate to the COMELEC's exercise of its adjudicatory or quasijudicialpowers involving elective regional, provincial and city officials." (Citations omitted.)24 The Solicitor General further argues that the issuance of COMELEC Resolution No. 2987 is a ministerial duty of the COMELEC in the exercise of its administrative functions, hence, it is submitted that the aforecited constitutional provision is inapplicable. Public respondent Commission on Elections (COMELEC), on the other hand, submits that the power to review or reverse COMELEC Resolution No. 2987 solely belongs to this Court, citing the earlier cases of Zaldivar vs. Estenzo (23 SCRA 533, 540-541[1968]); Luison vs. Garcia (L-10916, May 20, 1957); Macud vs. COMELEC (23 SCRA 224 [1968]); and Aratuc vs. COMELEC (88 SCRA 251, 272 [1979]);25 thus: ". . . For even without the express constitutional prescription that only this Court may review the decisions, orders and rulings of the Commission on Elections, it is easy to understand why no interference whatsoever with the performance of the Commission on Elections of its functions should be allowed unless emanating from this Court. The observation of Acting Chief Justice J.B.L. Reyes in Albano v. Arranz while not precisely in point, indicates the proper approach. Thus: 'It is easy to realize the chaos that would ensue if the Court of First Instance of each and every province were to arrogate unto itself the power to disregard, suspend, or contradict any order of the Commission on Elections; that constitutional body would be speedily reduced to impotence."26 The COMELEC further argues that ". . . if a Regional Trial Court does not have jurisdiction to issue writs against statutory agencies of government like the ones cited above [referring to the former Court of Industrial Relations, Philippine Patent Office, Public Service Commission, Social Security Commission, National Electrification Administration and Presidential Commission on Good Government], a fortiori it can not have any such jurisdiction over the Commission on Elections, a constitutional independent body expressly clothed by the 1987 Constitution

with, among others, quasi-judicial functions and tasked with one of the most paramount aspects of a democratic government. . . ."27 Finally, the COMELEC contends that the temporary restraining order sought by petitioners has been rendered moot and academic by the actual holding of the plebiscite sought to be enjoined.28 The appeal is meritorious. Section 7, Article IX-A of the 1987 Constitution provides in part that: "SECTION 7. . . . . Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within this days from receipt of a copy thereof." In Garces vs. Court of Appeals (259 SCRA 99 [1996]) and Filipinas Engineering and Machine Shop vs. Ferrer(135 SCRA 25 [1985]), we found occasion to interpret the foregoing provision in this wise: ". . . What is contemplated by the term 'final orders, rulings and decisions' of the COMELEC reviewable by certiorari by the Supreme Court as provided by law are those rendered in actions or proceedings before the COMELEC and taken cognizance of by the said body in the exercise of its adjudicatory or quasi-judicial powers."29 In Filipinas, we have likewise affirmed that powers vested by the Constitution and the law on the Commission on Elections may either be classified as those pertaining to its adjudicatory or quasi-judicial functions, or those which are inherently administrative and sometimes ministerial in character.30 As aptly explained by the Solicitor General, in the instant case, after the COMELEC ascertained the issuance of the ordinance and resolution declaring the abolition of barangay San Rafael, it issued COMELEC Resolution No. 2987 calling for a plebiscite to be held in the affected barangays, pursuant to the provisions of Section 10 of Republic Act No. 7160. We agree with the Solicitor General that ". . . . [t]he issuance of [COMELEC] Resolution No. 2987 is thus a ministerial duty of the COMELEC that is enjoined by law and is part and parcel of its administrativefunctions. It involves no exercise of discretionary authority on the part of respondent COMELEC; let alone an exercise of its adjudicatory or quasi-judicial power to hear and resolve controversies defining the rights and duties of party-litigants, relative to the conduct of elections of public officers and the enforcement of the election laws." (Citation omitted.)31 Briefly, COMELEC Resolution No. 2987 which provides for the rules and regulations governing the conduct of the required plebiscite, was not issued pursuant to the COMELEC's quasi-judicial functions but merely as an incident of its inherent administrative functions over the conduct of plebiscites, thus, the said resolution may not be deemed as a "final order" reviewable by certiorari by this Court. Any question pertaining to the validity of said resolution may be well taken in an ordinary civil action before the trial courts. Even the cases cited by the public respondent in support of its contention that the power to review or reverse COMELEC Resolution No. 2987 solely belongs to this Court are simply not in point. Zaldivar vs. Estenzo32 speaks of the power of the COMELEC to enforce and administer all laws relative to the conduct of elections to the exclusion of the judiciary. In the present case, petitioners are not contesting the exclusive authority of the COMELEC to enforce and administer election laws. Luison vs. Garcia33 refers to this Court's power to review "administrative decisions," particularly referring to a COMELEC resolution declaring a certain certificate of candidacy null and void, based on Article X, Section 2 of the 1935 Constitution. In Macud vs. COMELEC,34 we reiterated that when a board of canvassers rejects an election return on the ground that it is spurious or has been tampered with, the aggrieved party may elevate the matter to the COMELEC for appropriate relief, and if the COMELEC sustains the action of the board, the aggrieved party may appeal to this Court. In both Luison and Macud, the assailed COMELEC resolutions fall within the purview of "final orders, rulings and decisions" of the COMELEC reviewable by certiorari by this Court. In view of the foregoing, public respondent's other contentions deserve scant consideration. WHEREFORE, the petition for review is hereby GRANTED, and the assailed Order dated February 25, 1998, of the Regional Trial Court of Balayan, Batangas, Branch XI is hereby SET ASIDE and ANNULLED. The Regional Trial Court of Balayan, Batangas, Branch XI is ordered to proceed with dispatch in resolving Civil Case No. 3442. The execution of the result of the plebiscite held on February 28, 1998 shall be deferred depending on the outcome of Civil Case No. 3442. SO ORDERED.

G.R. No. 202202

March 19, 2013

SILVERIO R. TAGOLINO, Petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL AND LUCY MARIE TORRES-GOMEZ, Respondents. DECISION PERLAS-BERNABE, J.: Assailed in this Petition for Certiorari and Prohibition under Rule 65 of the Rules of Court is the March 22, 2012 Decision1 of the House of Representatives Electoral Tribunal (HRET) in HRET Case No. 10-031 (QW) which declared the validity of private respondent Lucy Marie Torres-Gomezs substitution as the Liberal Partys replacement candidate for the position of Leyte Representative (Fourth Legislative District) in lieu of Richard Gomez. The Facts On November 30, 2009, Richard Gomez (Richard) filed his certificate of candidacy2 (CoC) with the Commission on Elections (COMELEC), seeking congressional office as Representative for the Fourth Legislative District of Leyte under the ticket of the Liberal Party. Subsequently, on December 6, 2009, one of the opposing candidates, Buenaventura Juntilla (Juntilla), filed a Verified Petition,3 alleging that Richard, who was actually a resident of College Street, East Greenhills, San Juan City, Metro Manila, misrepresented in his CoC that he resided in 910 Carlota Hills, Can-adieng, Ormoc City. In this regard, Juntilla asserted that Richard failed to meet the one (1) year residency requirement under Section 6, Article VI4 of the 1987 Philippine Constitution (Constitution) and thus should be declared disqualified/ineligible to run for the said office. In addition, Juntilla prayed that Richards CoC be denied due course and/or cancelled.5 On February 17, 2010, the COMELEC First Division rendered a Resolution6 granting Juntillas petition without any qualification. The dispositive portion of which reads: WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVE, to GRANT the Petition to Disqualify Candidate for Lack of Qualification filed by BUENAVENTURA O. JUNTILLA against RICHARD I. GOMEZ. Accordingly, RICHARD I. GOMEZ is DISQUALIFIED as a candidate for the Office of Congressman, Fourth District of Leyte, for lack of residency requirement. SO ORDERED. Aggrieved, Richard moved for reconsideration but the same was denied by the COMELEC En Banc through a Resolution dated May 4, 2010.7 Thereafter, in a Manifestation of even date, Richard accepted the said resolution with finality "in order to enable his substitute to facilitate the filing of the necessary documents for substitution."8 On May 5, 2010, Lucy Marie Torres-Gomez (private respondent) filed her CoC9 together with a Certificate of Nomination and Acceptance10 from the Liberal Party endorsing her as the partys official substitute candidate vice her husband, Richard, for the same congressional post. In response to various letter-requests submitted to the COMELECs Law Department (Law Department), the COMELEC En Banc, in the exercise of its administrative functions, issued Resolution No. 889011 on May 8, 2010, approving, among others, the recommendation of the said department to allow the substitution of private respondent. The recommendation reads: STUDY AND OBSERVATION On the same date, this Department received an Opposition from Mr. Buenaventura O. Juntilla, thru his counsel, opposing the candidacy of Ms. Lucy Marie Torres Gomez, as a substitute candidate for Mr. Richard I. Gomez. The crux of the opposition stemmed from the issue that there should be no substitution because there is no candidate to substitute for. It must be stressed that the resolution of the First Division, this Commission, in SPA No. 09-059 speaks for disqualification of candidate Richard I. Gomez and not of cancellation of his Certificate of Candidacy: Wherefore, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the Petition to Disqualify Candidate for Lack of Qualification filed x x x against RICHARD I. GOMEZ. Accordingly, RICHARD I. GOMEZ is DISQUALIFIED as a candidate for the Office of Congressman, Fourth District of Leyte, for lack of residency requirement. The said resolution was affirmed by the Commission En Banc on May 04, 2010.

The disqualification of a candidate does not automatically cancel ones certificate of candidacy, especially when it is nominated by a political party. In effect, the political party is still allowed to substitute the candidate whose candidacy was declared disqualified. After all, the right to substitute is a privilege given to a political party to exercise and not dependent totally to a candidate. Nonetheless, in case of doubt, the same must always be resolved to the qualification of a candidate to run in the public office. The substitution complied with the requirements provided under Section 12 in relation to Section 13 of Comelec Resolution No. 8678 dated October 6, 2009. xxxx In view of the foregoing, the Law Department RECOMMENDS the following: xxxx 2. TO ALLOW CANDIDATE LUCY MARIE TORRES GOMEZ AS A SUBSTITUTE CANDIDATE FOR RICHARD GOMEZ: (Emphasis and underscoring supplied) xxxx The following day, or on May 9, 2010, Juntilla filed an Extremely Urgent Motion for Reconsideration12 (May 9, 2010 Motion) of the above-mentioned COMELEC En Banc resolution Pending resolution of Juntillas May 9, 2010 Motion, the national and local elections were conducted as scheduled on May 10, 2010. During the elections, Richards, whose name remained on the ballots, garnered 101, 250 votes while his opponents, namely, Eufrocino Codilla, Jr. and herein petitioner Silverio Tagolino, obtained 76,549 and 493 votes, respectively.13 In view of the aforementioned substitution, Richards votes were credited in favor of private respondent and as a result, she was proclaimed the duly-elected Representative of the Fourth District of Leyte. On May 11, 2010, Juntilla filed an Extremely Urgent Motion to resolve the pending May 9, 2010 Motion relative to Resolution No. 8890.14 The said motion, however, remained unacted. On May 24, 2010, petitioner filed a Petition15 for quo warranto before the HRET in order to oust private respondent from her congressional seat, claiming that: (1) she failed to comply with the one (1) year residency requirement under Section 6, Article VI of the Constitution considering that the transfer of her voter registration from San Rafael Bulacan16 to the Fourth District of Leyte was only applied for on July 23, 2009; (2) she did not validly substitute Richard as his CoC was void ab initio; and (3) private respondents CoC was void due to her non-compliance with the prescribed notarial requirements i.e., she failed to present valid and competent proof of her identity before the notarizing officer.17 In her Verified Answer,18 private respondent denied petitioners allegations and claimed that she validly substituted her husband in the electoral process. She also averred that she personally known to the notary public who notarized her CoC, one Atty. Edgardo Cordeno, and thus, she was not required to have presented any competent proof of identity during the notarization of the said document. Lastly, she asserted that despite her marriage to Richard and exercise of profession in Metro Manila, she continued to maintain her residency in Ormoc City which was the place where she was born and raised. During the preliminary conference, and as shown in the Preliminary Conference Order dated September 2, 2010, the parties agreed on the following issues for resolution: 1. Whether or not the instant petition for quo warranto is meritorious; 2. Whether or not the substitution of respondent is valid; 3. Whether or not a petition for quo warranto can be used as a substitute for failure to file the necessary petition for disqualification with the COMELEC; 4. Whether or not respondents COC was duly subscribed; and 5. Whether or not respondent is ineligible for the position of Representative of the Fourth District of Leyte for lack of residency requirement.19 Ruling of the HRET After due proceedings, the HRET issued the assailed March 22, 2012 Decision20 which dismissed the quo warranto petition and declared that private respondent was a qualified candidate for the position of Leyte Representative (Fourth Legislative District). It observed that the resolution denying Richards candidacy i.e., the COMELEC First Divisions February 17, 2010 Resolution, spoke of disqualification and not of CoC cancellation. Hence, it held that the substitution of private respondent in lieu of Richard was legal and valid.21 Also, it upheld the validity of private respondents CoC due to petitioners failure to controvert her claim that she was personally known to the notary public who notarized her CoC.22 Finally, the HRET ruled that while it had been admitted that private respondent

resides in Colgate Street, San Juan City and lived in San Rafael, Bulacan, the fact was she continued to retain her domicile in Ormoc City given that her absence therefrom was only temporary. Hence, the instant petition. Issues Before the Court The crux of the present controversy is whatever or not the HRET gravely abused its discretion in finding that Richard was validly substituted by private respondent as candidate for Leyte Representative (Fourth Legislative District) in view of the formers failure to meet the one (1) year residency requirement provided under Section 6, Article VI of the Constitution. It is petitioners submission that the HRET gravely abused its discretion when it upheld the validity of private respondents substitution despite contrary jurisprudence holding that substitution is impermissible where the substituted candidates CoC was denied due course to and/or cancelled, as in the case of Richard. On the other hand, respondents maintain that Richards CoC was not denied due course to and/or cancelled by the COMELEC as he was only "disqualified" and therefore, was properly substituted by private respondent. Ruling of the Court The petition is meritorious. A. Distinction between a petition for disqualification and a petition to deny due course to/cancel a certificate of candidacy The Omnibus Election Code23 (OEC) provides for certain remedies to assail a candidates bid for public office. Among these which obtain particular significance to this case are: (1) a petition for disqualification under Section 68; and (2) a petition to deny due course to and/or cancel a certificate of candidacy under Section 78. The distinctions between the two are well-perceived. Primarily, a disqualification case under Section 68 of the OEC is hinged on either: (a) a candidates possession of a permanent resident status in a foreign country;24 or (b) his or her commission of certain acts of disqualification. Anent the latter, the prohibited acts under Section 68 refer to election offenses under the OEC, and not to violations of other penal laws.25 In particular, these are: (1) giving money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (2) committing acts of terrorism to enhance ones candidacy; (3) spending in ones election campaign an amount in excess of that allowed by the OEC; (4) soliciting, receiving or making any contribution prohibited under Sections 89, 95, 96, 97 and 104 of the OEC; and (5) violating Sections 80,26 83,27 85,28 8629 and 261, paragraphs d,30 e,31 k,32 v,33and cc, sub-paragraph 634 of the OEC. Accordingly, the same provision (Section 68) states that any candidate who, in an action or protest in which he or she is a party, is declared by final decision of a competent court guilty of, or found by the COMELEC to have committed any of the foregoing acts shall be disqualified from continuing as a candidate for public office, or disallowed from holding the same, if he or she had already been elected.35 It must be stressed that one who is disqualified under Section 68 is still technically considered to have been a candidate, albeit proscribed to continue as such only because of supervening infractions which do not, however, deny his or her statutory eligibility. In other words, while the candidates compliance with the eligibility requirements as prescribed by law, such as age, residency, and citizenship, is not in question, he or she is, however, ordered to discontinue such candidacy as a form of penal sanction brought by the commission of the above-mentioned election offenses. On the other hand, a denial of due course to and/or cancellation of a CoC proceeding under Section 78 of the OEC36 is premised on a persons misrepresentation of any of the material qualifications required for the elective office aspired for. It is not enough that a person lacks the relevant qualification; he or she must have also made a false representation of the same in the CoC.37 The nature of a Section 78 petition was discussed in the case of Fermin v. COMELEC,38 where the Court illumined: Let it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the lack of qualifications but on a finding that the candidate made a material representation that is false, which may relate to the qualifications required of the public office he/she is running for. It is noted that the candidates states in his/her CoC that he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional and statutory provisions on qualifications or eligibility for public office. If the candidate subsequently states a material representation in the CoC that is false, the COMELEC, following the law, is empowered to deny due course to or cancel such certificate. Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they both deal with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a "Section 78" petition is filed before proclamation, while a petition for quo warranto is filed after proclamation of the winning candidate. (Emphasis supplied) Corollary thereto, it must be noted that the deliberateness of the misrepresentation, much less ones intent to defraud, is of bare significance in a Section 78 petition as it is enough that the persons declaration of a material

qualification in the CoC be false. In this relation, jurisprudence holds that an express finding that the person committed any deliberate misrepresentation is of little consequence in the determination of whether ones CoC should be deemed cancelled or not.39 What remains material is that the petition essentially seeks to deny due course to and/or cancel the CoC on the basis of ones ineligibility and that the same be granted without any qualification.40 Pertinently, while a disqualified candidate under Section 68 is still considered to have been a candidate for all intents and purposes, on the other hand, a person whose CoC had been denied due course to and/or cancelled under Section 78 is deemed to have not been a candidate at all. The reason being is that a cancelled CoC is considered void ab initio and thus, cannot give rise to a valid candidacy and necessarily, to valid votes.41 In Talaga v. COMELEC42 (Talaga), the Court ruled that: x x x x While a person who is disqualified under Section 68 is merely prohibited to continue as a candidate, a person who certificate is cancelled or denied due course under Section 78 is not treated as a candidate at all, as if he/she never filed a CoC. The foregoing variance gains utmost importance to the present case considering its implications on candidate substitution. B. Valid CoC as a condition sine qua non for candidate substitution Section 77 of the OEC provides that if an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, a person belonging to and certified by the same political party may file a CoC to replace the candidate who died, withdrew or was disqualified. It states that: Sec. 77. Candidates in case of death, disqualification or withdrawal of another. - If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. (Emphasis supplied) Evidently, Section 77 requires that there be an "official candidate" before candidate substitution proceeds. Thus, whether the ground for substitution is death, withdrawal or disqualification of a candidate, the said section unequivocally states that only an official candidate of a registered or accredited party may be substituted.43 As defined under Section 79(a) of the OEC, the term "candidate" refers to any person aspiring for or seeking an elective public office who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties. Clearly, the law requires that one must have validly filed a CoC in order to be considered a candidate. The requirement of having a CoC obtains even greater importance if one considers its nature. In particular, a CoC formalizes not only a persons public declaration to run for office but evidences as well his or her statutory eligibility to be elected for the said post. In Sinaca v. Mula,44 the Court has illumined: A certificate of candidacy is in the nature of a formal manifestation to the whole world of the candidates political creed or lack of political creed. It is a statement of a person seeking to run for a public office certifying that he announces his candidacy for the office mentioned and the be is eligible for the office, the name of the political party to which he belongs, if he belongs to any, and his post-office address for all election purposes being as well stated. (Emphasis and underscoring supplied). In this regard, the CoC is the document which formally accords upon a person the status of a candidate. In other words, absent a valid CoC one is not considered a candidate under legal contemplation. As held in Talaga:45 x x x a persons declaration of his intention to run for public office and his affirmation that he possesses the eligibility for the position he seeks to assume, followed by the timely filing of such declaration, constitute a valid CoC that render the person making the declaration a valid or official candidate. (Emphasis supplied) Considering that Section 77 requires that there be a candidate in order for substitution to take place, as well as the precept that a person without a valid CoC is not considered as a candidate at all, it necessarily follows that if a persons CoC had been denied due course to and/or cancelled, he or she cannot be validly substituted in the electoral process. The existence of a valid CoC is therefore a condition sine qua non for a disqualified candidate to be validly substituted.46 C. Divergent effects of disqualification and denial of due course to and/or cancellation of CoC cases vis--vis candidate substitution Proceeding, from the foregoing discourse, it is evident that there lies a clear-cut distinction between a disqualification case under Section 68 and denial of due course to and/or cancellation of COC case under Section 78 vis--vis their respective effects on candidate substitution under Section 77.
1wphi 1

As explained in the case of Miranda v. Abaya47 (Miranda), a candidate who is disqualified under Section 68 can be validly substituted pursuant to Section 77 because he remains a candidate until disqualified; but a person whose

CoC has been denied due course to and/or cancelled under Section 78 cannot be substituted because he is not considered a candidate.48 Stated differently, since there would be no candidate to speak of under a denial of due course to and/or cancellation of a CoC case, then there would be no candidate to be substituted; the same does not obtain, however, in a disqualification case since there remains to be a candidate to be substituted, although his or her candidacy is discontinued. On this note, it is equally revelatory that Section 77 expressly enumerates the instances where substitution is permissible, that is when an official candidate of a registered or accredited political party "dies, withdraws or is disqualified for any cause." Noticeably, material misrepresentation cases are not included in the said section and therefore, cannot be a valid basis to proceed with candidate substitution. D. Application to the case at bar In this case, it is undisputed that Richard was disqualified to run in the May 10, 2010 elections due to his failure to comply with the one year residency requirement.49 The confusion, however, stemmed from the use of the word "disqualified" in the February 17, 2010 Resolution of the COMELEC First Division, which was adopted by the COMELEC En Banc in granting the substitution of private respondent, and even further perpetuated by the HRET in denying the quo warranto petition. In short, a finding that Richard was merely disqualified and not that his CoC was denied due course to and/or cancelled would mean that he could have been validly substitute by private respondent, thereby legitimizing her candidacy. Yet the fact that the COMELEC First Divisions February 17, 2010 Resolution did not explicitly decree the denial of due course to and/or cancellation of Richards CoC should not have obviated the COMELEC En Banc from declaring the invalidity of private respondents substitution. It should be stressed that the clear and unequivocal basis for Richards "disqualification" is his failure to comply with the residency requirement under Section 6, Article VI of the Constitution which is a ground for the denial of due course to and/or cancellation a CoC under Section 78 of the OEC, misrepresentation contemplated under a Section 78 petition refers to statements affecting ones qualifications for elective office such as age, residence and citizenship or non-possession of natural-born Filipino status.51 There is therefore no legal basis to support a finding of disqualification within the ambit of election laws. Accordingly, given Richards non-compliance with the one year residency requirement, it cannot be mistaken that the COMELEC First Divisions unqualified grant of Juntillas "Verified Petition to Disqualify Candidate for Lack of Qualification"52 which prayed that the COMELEC declare Richard "DISQUALIFIED and INELIGIBLE from seeking the office of Member of the House of Representatives" and "x x x that his Certificate of Candidacy x x x be DENIED DUE COURSE and/or CANCELLED"53 carried with it the denial of due course to and/or cancellation of Richards CoC pursuant to Section 78. Case law dictates that if a petition prays for the denial of due course to and/or cancellation of CoC and the same is granted by the COMELEC without any qualification, the cancellation of the candidates CoC in in order. This is precisely the crux of the Miranda ruling wherein the Court, in upholding the COMELEC En Bancs nullification of the substitution in that case, decreed that the COMELEC Divisions unqualified grant of the petition necessarily included the denial of due course to and/or cancellation of the candidates CoC, notwithstanding the use of the term "disqualified" in the COMELEC Divisions resolution, as the foregoing was prayed for in the said petition: The question to settle next is whether or not aside from Joiel "Pempe" Miranda being disqualified by the COMELEC in its May 5, 1998 resolution, his certificate of candidacy had likewise been denied due course and cancelled. The Court rules that it was. Private respondents petition in SPA No. 98-019 specifically prayed for the following: WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by respondent for the position of Mayor for the City of Snatiago be not given due course and/or cancelled. Other reliefs just and equitable in the premises are likewise prayed for. In resolving the petition filed by private respondent specifying a very particular relief, the COMELEC ruled favorably in the following manner: WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the Petition. Respondent JOSE "Pempe" MIRANDA is hereby DISQUALIFIED from running for the position of mayor of Santiago City, Isabela, in the May 11, 1998 national and local elections. SO ORDERED.

G.R. No. 191938

July 2, 2010

ABRAHAM KAHLIL B. MITRA, Petitioner, vs. COMMISSION ON ELECTIONS, ANTONIO V. GONZALES, and ORLANDO R. BALBON, JR., Respondents. DECISION BRION, J.: The minimum requirement under our Constitution1 and election laws2 for the candidates residency in the political unit they seek to represent has never been intended to be an empty formalistic condition; it carries with it a very specific purpose: to prevent "stranger[s] or newcomer[s] unacquainted with the conditions and needs of a community" from seeking elective offices in that community.3 The requirement is rooted in the recognition that officials of districts or localities should not only be acquainted with the metes and bounds of their constituencies; more importantly, they should know their constituencies and the unique circumstances of their constituents their needs, difficulties, aspirations, potentials for growth and development, and all matters vital to their common welfare. Familiarity, or the opportunity to be familiar, with these circumstances can only come with residency in the constituency to be represented. The purpose of the residency requirement is "best met by individuals who have either had actual residence in the area for a given period or who have been domiciled in the same area either by origin or by choice."4 At the same time, the constituents themselves can best know and evaluate the candidates qualifications and fitness for office if these candidates have lived among them.5 Read and understood in this manner, residency can readily be appreciated as a requirement that goes into the heart of our democratic system; it directly supports the purpose of representation electing those who can best serve the community because of their knowledge and sensitivity to its needs. It likewise adds meaning and substance to the voters freedom of choice in the electoral exercise that characterizes every democracy. In the present case, the respondent Commission on Elections (COMELEC) canceled the certificate of candidacy (COC) of petitioner Abraham Kahlil B. Mitra for allegedly misrepresenting that he is a resident of the Municipality of Aborlan, Province of Palawan where he ran for the position of Governor. Mitra came to this Court to seek the reversal of the cancellation.6 The Antecedents When his COC for the position of Governor of Palawan was declared cancelled, Mitra was the incumbent Representative of the Second District of Palawan. This district then included, among other territories, the Municipality of Aborlan and Puerto Princesa City. He was elected Representative as a domiciliary of Puerto Princesa City, and represented the legislative district for three (3) terms immediately before the elections of 2010.7 On March 26, 2007 (or before the end of Mitras second term as Representative), Puerto Princesa City was reclassified as a "highly urbanized city" and thus ceased to be a component city of the Province of Palawan. The direct legal consequence of this new status was the ineligibility of Puerto Princesa City residents from voting for candidates for elective provincial officials.8 On March 20, 2009, with the intention of running for the position of Governor, Mitra applied for the transfer of his Voters Registration Record from Precinct No. 03720 of Brgy. Sta. Monica, Puerto Princesa City, to Sitio Maligaya,Brgy. Isaub, Municipality of Aborlan, Province of Palawan. He subsequently filed his COC for the position of Governor of Palawan as a resident of Aborlan.9 Soon thereafter, respondents Antonio V. Gonzales and Orlando R. Balbon, Jr. (the respondents) filed a petition to deny due course or to cancel Mitras COC.10 They essentially argued that Mitra remains a resident of Puerto Princesa City who has not yet established residence in Aborlan, and is therefore not qualified to run for Governor of Palawan. Mitra insisted in his Answer that he has successfully abandoned Puerto Princesa City as his domicile of origin, and has established a new domicile in Aborlan since 2008.11 The Parties Claims and Evidence The respondents petition before the COMELEC claimed that Mitras COC should be cancelled under the following factual premises: (a) Mitra bought, in June 2009, a parcel of land in Aborlan where he began to construct a house, but up to the time of the filing of the petition to deny due course or to cancel Mitras COC, the house had yet to be completed; (b) in the document of sale, Puerto Princesa City was stated as Mitras residence (attached as Annex "J" of the Respondents Petition before the COMELEC);12 (c) Mitras Puerto Princesa City residence was similarly stated in his application for a building permit (attached as Annex "K" of the Respondents Petition before the COMELEC);13 and (d) Mitras community tax certificate states that his residence was Puerto Princesa City (attached as Annex "M" of the Respondents Petition before the COMELEC).14 The respondents presented several affidavits

attesting to the non-completion of the construction of the house,15 and asserted that without a fully constructed house, Mitra could not claim residence in Aborlan. Mitra denied the respondents allegations in his Answer. He claimed that the respondents misled the COMELEC by presenting photographs of his unfinished house on the land he purchased from a certain Rexter Temple. He claimed, on the contrary, that his residence is located inside the premises of the Maligaya Feedmill and Farm (Maligaya Feedmill) which the owner, Carme Caspe, leased to him; and that he purchased a farm and presently has an experimental pineapple plantation and a cock farm. The transfer of his residence, he claimed, began in 2008.16 He submitted the following: (a) the Sinumpaang Salaysay of Ricardo Temple; Florame T. Gabrillo, the Punong Barangay of Isaub, Aborlan; Marissa U. Zumarraga, Councilor of Aborlan; Virginia J. Agpao and Elsa M. Dalisay, both Sangguniang Barangay members of Isaub, Aborlan, attesting that Mitra resides in their locality;17 (b) photographs of the residential portion of the Maligaya Feedmill18 where he claims to reside, and of his Aborlan experimental pineapple plantation, farm, farmhouse and cock farm;19 (c) the lease contract over the Maligaya Feedmill;20 (d) the community tax certificate he claims he himself secured, stating that Aborlan is his residence;21and (e) an updated identification card issued by the House of Representatives stating that Aborlan is his residence.22 To refute Mitras claimed residence in Aborlan specifically, that he resides at the Maligaya Feedmill property the respondents additionally submitted: (a) the affidavits of the 14 Punong Barangays of Aborlan and of six residents of Aborlan, all stating that Mitra is not a resident of Aborlan and has never been seen in that municipality; (b) a Certification from the Barangay Captain of Sta. Monica, Puerto Princesa City stating that Mitra was a resident of that barangay as of November 16, 2009; (c) the affidavit of Commodore Nicanor Hernandez attesting that Mitra continues to reside in Puerto Princesa City; and (d) 24 affidavits of former employees, workers, Aborlan residents and a customer of the Maligaya Feedmill attesting that they have never seen Mitra during the time he claimed to have lived there and that the area where Mitra supposedly lives is, in fact, the office of the feedmill and is unlivable due to noise and pollution.23 The Ruling of the COMELECs First Division24 The Law. The First Division defined the governing law with the statement that residence means domicile under the Courts consistent rulings since 1928 in Nuval v. Guray.25 Domicile imports not only the intent to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of this intention.26 To acquire a new domicile a domicile by choice the following must concur: (1) residence or bodily presence in a new locality; (2) an intention to remain there; and (3) an intention to abandon the old domicile. In other words, there must be an animus non revertendi with respect to the old domicile, and an animus manendi at the domicile of choice. The intent to remain in or at the domicile of choice must be for an indefinite period of time and the acts of the person must be consistent with this intent.27 The First Divisions Evaluation of the Parties Evidence. Based on its consideration of the submitted evidence (including various affidavits submitted by both parties and the photographs of the room that Mitra claims to be his residence) and citing jurisprudence, the First Division granted the respondents petition to cancel Mitras COC. To the First Division, Mitras submitted pictures are telling; they show a small, sparsely furnished room that is evidently unlived in, located at the second floor of a structure that appears to be a factory or a warehouse; the residence appears hastily set-up, cold, and utterly devoid of any indication of Mitras personality such as old family photographs and memorabilia collected through the years. What the supposed residence lacks, in the First Divisions perception, are the loving attention and details inherent in every home to make it ones residence; perhaps, at most, this small room could have served as Mitras resting area whenever he visited the locality, but nothing more than this.28 These observations coupled with the statements from former employees and customers of the Maligaya Feedmill that the claimed residence is located in an unsavory location (for its noise and pollution), and that it had been in fact Maligaya Feedmills office just a few months back militated against Mitras claim. These pieces of information made it clear, to the First Division, that this room is not the home that a residence is supposed to be.29 A persons domicile of origin is not easily lost, the First Division further said. The fact that Mitra registered as a voter in Aborlan, has a cock farm, a farm, a rest house and an experimental pineapple plantation in Maligaya Feedmill, was occasionally seen staying in Aborlan, and held meetings with Aborlan constituents does not necessarily establish Mitras status as an Aborlan resident, or prove his abandonment of his domicile of origin in Puerto Princesa City. Mere absence from ones residence or domicile of origin to pursue studies, engage in business, or practice ones vocation is not sufficient to constitute abandonment or loss of domicile. Registration or voting in a place other than ones domicile does not eliminate an individuals animus revertendi to his domicile of origin; the natural desire and longing of every person to return to the place of birth and his strong feeling of attachment to this place can only be shown to have been overcome by a positive proof of abandonment of this place for another.30 Also, the First Division said that Mitras witnesses sworn statements appear to have been prepared by the same person, as they use similar wordings, allegations, and contents; thus, putting into question the credibility of the

statements. Furthermore, the lease contract over the Maligaya Feedmill between Mitra and Carme Caspe is effective only up to February 28, 2010, thus casting doubt on Mitras claim of residency in Aborlan.31 The COMELEC En Banc Ruling The COMELEC en banc in a divided decision32 subsequently denied Mitras motion to reconsider the First Division ruling under the following outlined reasons. First, registration as a voter of Aborlan is not sufficient evidence that Mitra has successfully abandoned his domicile of origin.33 Second, mere intent cannot supplant the express requirement of the law; the "physical presence" required to establish domicile connotes actual, factual and bona fide residence in a given locality. The COMELEC en banc agreed with the First Divisions evidentiary findings on this point.34 Third, the First Divisions Resolution was based on a careful and judicious examination and consideration of all evidence submitted by the parties. The summary nature of the proceedings is not necessarily offensive to a partys right to due process.35 Fourth, Fernandez v. House of Representatives Electoral Tribunal36 is not on all fours with the present case Fernandez stemmed from a quo warranto case while the present case involves a petition to deny due course or cancel the COC. Likewise, Fernandez successfully proved that his transfer to Sta. Rosa City, Laguna several years prior to his candidacy was prompted by valid reasons, i.e., existence of his business in the area and the enrolment of his children at Sta. Rosa schools, thereby erasing doubts as to the bona fide nature of his transfer. In the present case, the COMELEC en banc found that Mitra admitted that his transfer to Aborlan in 2008 was prompted by his plans to run for governor in the 2010 national and local elections. The COMELEC en banc also noted that Fernandez involved an individual who had earned an overwhelming mandate from the electorate. The COMELEC en bancs ruling on Mitras case, on the other hand, came before the 2010 elections; thus, the people had not then voted.37 In his Dissent,38 Commissioner Sarmiento points out that the following acts of Mitra, taken collectively, indubitably prove a change of domicile from Puerto Princesa to Aborlan: (a) in January 2008, [Mitra] started a pineapple growing project in a rented farmland near Maligaya Feedmill and Farm located in Barangay Isaub, Aborlan; (b) in February 2008, [Mitra] leased the residential portion of the said Maligaya Feedmill; (c) in March 2008, after the said residential portion has been refurbished and renovated, [Mitra] started to occupy and reside in the said premises; (d) in 2009, [Mitra] purchased his own farmland in the same barangay but continued the lease involving the Maligaya Feedmill, the contract of which was even renewed until February 2010; and (e) [Mitra] caused the construction of a house in the purchased lot which has been recently completed.39 The Petition Mitra supports his petition with the following ARGUMENTS: 6.1 x x x COMELECs GRAVE ABUSE is most patent as IT forgets, wittingly or unwittingly that the solitary GROUND to deny due course to a COC is the DELIBERATE false material representation to DECEIVE, and not the issue of the candidates eligibility which should be resolved in an appropriate QUO WARRANTO proceedings post election.40 6.2 Deny Due Course Petitions under Section 78 of the OEC, being SUMMARILY decided and resolved, the same must be exercised most sparingly, with utmost care and extreme caution; and construed most strictly against the proponent/s, and liberally in favor of the candidate sought to be eliminated. When exercised otherwise and with apparent biased in favor of the proponents, as in this instance, GRAVE ABUSE OF DISCRETION necessarily sets in.41 6.3 The mandate to be extremely cautious and careful in the SUMMARY exercise of the awesome power to simplistically cancel [ones] candidacy x x x is further made manifest by the availability of a QUO WARRANTO proceeding appropriately prosecuted post election.42 6.4 Absent any formal HEARINGS and Presentation of Evidence; Lacking the actual inspection and verification; and without actual confrontation of affiants/alleged witnesses ALL the "conclusions" of COMELEC on the RESIDENCE issue, were indeed predicted (sic) on sheer SPECULATION[.]43

6.5 A grievous procedural flaw, FATAL in character. THE BURDEN OF PROOF MUST ALWAYS BE PLACED ON THE SHOULDERS OF THE PROPONENT/s. Not so in the present controversy, where COMELECs assailed decision/s were devoted exclusively to the alleged weakness of MITRAs submissions and COMELECs speculative conclusions, rather than on the strength of proponents unverified and unconfirmed submissions and unconfronted sworn statements of supposed affiants[.]44 The petition also asks for ancillary injunctive relief. We granted the application for injunctive relief by issuing a status quo ante order, allowing Mitra to be voted upon in the May 10, 2010 elections.45 The respondents Comment46 states the following counter-arguments: a. Procedural Arguments: II. THE INSTANT PETITION FAILED TO ATTACH CERTIFIED TRUE COPIES OF THE MATERIAL PORTIONS OF THE RECORDS REFERRED TO THEREIN IN GROSS CONTRAVENTION OF SECTION 5 OF RULE 64 OF THE RULES OF COURT. CONSEQUENTLY, IT MUST BE DISMISSED OUTRIGHT. III. THE INSTANT PETITION RAISES MERE ERRORS OF JUDGMENT, WHICH ARE OUTSIDE THIS HONORABLE COURTS CERTIORARI JURISDICTION. b. Arguments on the Merits I. XXX B. THE LAW, IN IMPOSING A RESIDENCY REQUIREMENT, MANDATES NOT ONLY FAMILIARITY WITH THE NEEDS AND CONDITIONS OF THE LOCALITY, BUT ALSO ACTUAL PHYSICAL, PERSONAL AND PERMANENT RESIDENCE THEREIN. PETITIONERS SUPPOSED FAMILIARITY WITH THE "NEEDS, DIFFICULTIES, ASPIRATIONS, POTENTIALS (SIC) FOR GROWTH AND ALL MATTERS VITAL TO THE WELFARE OF HIS CONSTITUENCY WHICH CONSTITUTES ONE/THIRD OF THE WHOLE PROVINCE OF PALAWAN" AS A THREE-TERM CONGRESSMAN ABSENT SUCH RESIDENCE DOES NOT SUFFICE TO MEET THE RESIDENCY REQUIREMENT OF THE LAW. IV. FINDINGS OF FACTS OF ADMINISTRATIVE BODIES SUCH AS THE COMELEC, ARE ACCORDED GREAT RESPECT, IF NOT FINALITY BY THE COURTS, ESPECIALLY IF SUPPORTED BY SUBSTANTIAL EVIDENCE. BECAUSE THE FINDINGS OF FACTS OF THE COMELEC IN THE INSTANT CASE ARE OVERWHELMINGLY SUPPORTED BY SUBSTANTIAL EVIDENCE, THIS HONORABLE COURT MAY NOT REVERSE SUCH FINDINGS. V. THE COMELEC DID NOT COMMIT ANY GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE ASSAILED RESOLUTION DATED 04 MAY 2010. A. THE COMELEC CORRECTLY RULED THAT PETITIONERS REGISTRATION AS A VOTER IN ABORLAN, PALAWAN IS NOT SUFFICIENT EVIDENCE THAT HE HAS SUCCESSFULLY ABANDONED HIS DOMICILE OF ORIGIN AT PUERTO PRINCESA CITY, PALAWAN. B. THE COMELEC CORRECTLY RULED THAT PETITIONERS MERE INTENT TO TRANSFER RESIDENCE TO ABORLAN, PALAWAN, ABSENT ACTUAL, FACTUAL, AND BONA FIDE RESIDENCE THEREIN DOES NOT SUFFICE TO PROVE HIS TRANSFER OF RESIDENCE FROM PUERTO PRINCESA, PALAWAN TO ABORLAN, PALAWAN. C. THE COMELEC THOROUGHLY EVALUATED THE EVIDENCE, AND CORRECTLY ARRIVED AT THE ASSAILED DECISION ONLY AFTER MUCH DELIBERATION AND CAREFUL ASSESSMENT OF THE EVIDENCE, ALBEIT THROUGH SUMMARY PROCEEDINGS PARTICIPATED IN ACTIVELY BY PETITIONER. THE COMELEC CORRECTLY DID NOT GIVE CREDENCE TO THE TESTIMONIES OF PETITIONERS WITNESSES FOR BEING INCREDIBLE AND CONTRARY TO THE PHYSICAL EVIDENCE, ESPECIALLY PERTAINING TO HIS ALLEGED RESIDENCE AT THE FEEDMILL PROPERTY. D. THE COMELEC CORRECTLY RULED THAT PETITIONER HAS NOT TRANSFERRED HIS RESIDENCE FROM PUERTO PRINCESA, PALAWAN TO ABORLAN, PALAWAN. E. THE ALLEGED LEASE OF THE RESIDENTIAL PORTION OF THE FEEDMILL PROPERTY IS A SHAM. VI. GIVEN HIS STATURE AS A MEMBER OF THE PROMINENT MITRA CLAN OF PALAWAN, AND AS A 3-TERM CONGRESSMAN, IT IS HIGHLY INCREDIBLE THAT A SMALL ROOM IN A FEEDMILL HAS SERVED AS HIS RESIDENCE SINCE 2008.

VII. THE COMELEC CORRECTLY RULED THAT PETITIONER MAY NOT INVOKE THE CASE OF FERNANDEZ V. HRET AS PETITIONER IS NOT SIMILARLY SITUATED AS DAN FERNANDEZ. VIII. THE MATERIAL STATEMENT IN PETITIONERS COC RESPECTING HIS RESIDENCE HAS BEEN SHOWN TO BE FALSE. BY MAKING SUCH FALSE STATEMENT, PETITIONER DELIBERATELY TRIED TO MISLEAD AND TO MISINFORM THE ELECTORATE AS TO HIS ACTUAL RESIDENCE. HENCE, HIS COC WAS CORRECTLY DENIED DUE COURSE AND CANCELED. In the recently concluded elections of May 10, 2010, Mitra obtained the most number of votes for Governor and was accordingly proclaimed winner of the Palawan gubernatorial contest.47 We required the respondents and the COMELEC to comment on the petition.48 They complied on May 6, 201049and June 2, 2010, respectively.50 On May 17, 2010, the petitioner filed a "Supplemental Petition."51 On May 26, 2010, the respondents filed a "Supplemental Comment (with Omnibus Motion to Annul Proclamation and for Early Resolution)" to the petitioners "Supplemental Petition."52 We deemed the case ready for resolution on the basis of these submissions. The Courts Ruling We find the petition meritorious. The Limited Review in Certiorari Petitions under Rule 64, in relation to Rule 65 of the Rules of Court A preliminary matter before us is the respondents jurisdictional objection based on the issues raised in the present petition. The respondents assert that the questions Mitra brought to us are beyond our certiorari jurisdiction. Specifically, the respondents contend that Mitras petition merely seeks to correct errors of the COMELEC in appreciating the parties evidence a question we cannot entertain under our limited certiorari jurisdiction. Mitra brought his case before us pursuant to Rule 64, in relation to Rule 65 of the Rules of Court.53 Our review, therefore, is based on a very limited ground the jurisdictional issue of whether the COMELEC acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction. Whether the COMELEC, by law, has jurisdiction over a case or matter brought to it is resolved by considering the black-letter provisions of the Constitution and pertinent election laws, and we see no disputed issue on this point. Other than the respondents procedural objections which we will fully discuss below, the present case rests on the allegation of grave abuse of discretion an issue that generally is not as simple to resolve. As a concept, "grave abuse of discretion" defies exact definition; generally, it refers to "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction"; the abuse of discretion must be patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.54 Mere abuse of discretion is not enough; it must be grave.55 We have held, too, that the use of wrong or irrelevant considerations in deciding an issue is sufficient to taint a decision-makers action with grave abuse of discretion.56 Closely related with the limited focus of the present petition is the condition, under Section 5, Rule 64 of the Rules of Court, that findings of fact of the COMELEC, supported by substantial evidence, shall be final and non-reviewable. Substantial evidence is that degree of evidence that a reasonable mind might accept to support a conclusion.57 In light of our limited authority to review findings of fact, we do not ordinarily review in a certiorari case the COMELECs appreciation and evaluation of evidence. Any misstep by the COMELEC in this regard generally involves an error of judgment, not of jurisdiction. In exceptional cases, however, when the COMELECs action on the appreciation and evaluation of evidence oversteps the limits of its discretion to the point of being grossly unreasonable, the Court is not only obliged, but has the constitutional duty to intervene.58 When grave abuse of discretion is present, resulting errors arising from the grave abuse mutate from error of judgment to one of jurisdiction.59 Our reading of the petition shows that it is sufficient in form with respect to the requisite allegation of jurisdictional error. Mitra clearly alleged the COMELEC acts that were supposedly tainted with grave abuse of discretion. Thus, we do not agree with the respondents contention that the petition on its face raises mere errors of judgment that are outside our certiorari jurisdiction. Whether the allegations of "grave abuse" are duly supported and substantiated is another matter and is the subject of the discussions below. Nature of the Case under Review: COC Denial/Cancellation Proceedings

The present petition arose from a petition to deny due course or to cancel Mitras COC. This is the context of and take-off point for our review. From this perspective, the nature and requisites of the COC cancellation proceedings are primary considerations in resolving the present petition.60 Section 74, in relation to Section 78, of the Omnibus Election Code (OEC) governs the cancellation of, and grant or denial of due course to, COCs. The combined application of these sections requires that the candidates stated facts in the COC be true, under pain of the COCs denial or cancellation if any false representation of a material fact is made. To quote these provisions: SEC. 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of theBatasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge. xxxx SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing not later than fifteen days before the election. The false representation that these provisions mention must necessarily pertain to a material fact. The critical material facts are those that refer to a candidates qualifications for elective office, such as his or her citizenship and residence. The candidates status as a registered voter in the political unit where he or she is a candidate similarly falls under this classification as it is a requirement that, by law (the Local Government Code), must be reflected in the COC. The reason for this is obvious: the candidate, if he or she wins, will work for and represent the political unit where he or she ran as a candidate.61 The false representation under Section 78 must likewise be a "deliberate attempt to mislead, misinform, or hide a fact that would otherwise render a candidate ineligible." Given the purpose of the requirement, it must be made with the intention to deceive the electorate as to the would-be candidates qualifications for public office.62 Thus, the misrepresentation that Section 78 addresses cannot be the result of a mere innocuous mistake, and cannot exist in a situation where the intent to deceive is patently absent, or where no deception on the electorate results. The deliberate character of the misrepresentation necessarily follows from a consideration of the consequences of any material falsity: a candidate who falsifies a material fact cannot run; if he runs and is elected, he cannot serve; in both cases, he can be prosecuted for violation of the election laws. Based on these standards, we find that Mitra did not commit any deliberate material misrepresentation in his COC. The COMELEC gravely abused its discretion in its appreciation of the evidence, leading it to conclude that Mitra is not a resident of Aborlan, Palawan. The COMELEC, too, failed to critically consider whether Mitra deliberately attempted to mislead, misinform or hide a fact that would otherwise render him ineligible for the position of Governor of Palawan. Under the evidentiary situation of the case, there is clearly no basis for the conclusion that Mitra deliberately attempted to mislead the Palawan electorate. From the start, Mitra never hid his intention to transfer his residence from Puerto Princesa City to Aborlan to comply with the residence requirement of a candidate for an elective provincial office. Republic Act No. 7160, otherwise known as the Local Government Code, does not abhor this intended transfer of residence, as its Section 39 merely requires an elective local official to be a resident of the local government unit where he intends to run for at least one (1) year immediately preceding the day of the election. In other words, the law itself recognizes implicitly that there can be a change of domicile or residence, but imposes only the condition that residence at the new place should at least be for a year. Of course, as a continuing requirement or qualification, the elected official must remain a resident there for the rest of his term. Mitras domicile of origin is undisputedly Puerto Princesa City. For him to qualify as Governor in light of the relatively recent change of status of Puerto Princesa City from a component city to a highly urbanized city whose residents can no longer vote for provincial officials he had to abandon his domicile of origin and acquire a new one within the local government unit where he intended to run; this would be his domicile of choice. To acquire a domicile of choice, jurisprudence, which the COMELEC correctly invoked, requires the following: (1) residence or bodily presence in a new locality;

(2) an intention to remain there; and (3) an intention to abandon the old domicile.63 The contentious issues in Mitras case relate to his bodily presence, or the lack of it, in Aborlan, and the declaration he made on this point. The respondents anchor their cause of action on the alleged falsity of Mitras statement that he is a resident of Aborlan. To support this contention, the respondents claim that the construction of the supposed Mitra residence or house, other than the leased premises in Maligaya Feedmill, has yet to be completed, leaving Mitra with no habitable place in Aborlan. When Mitra successfully refuted this original claim, the respondents presented sworn statements of Aborlan residents contradicting Mitras claimed physical residence at the Maligaya Feedmill building in Aborlan. They likewise point out, by sworn statements, that this alleged residence could not be considered a house that Mitra could properly consider his residence, on the view that the feedmill place is beneath what Mitra a three-term congressman and a member of the Mitra political clan of Palawan would occupy. Mitra, on the other hand, presented sworn statements of various persons (including the seller of the land he purchased, the lessor of the Maligaya Feedmill, and the Punong Barangay of the site of his residence) attesting to his physical residence in Aborlan; photographs of the residential portion of Maligaya Feedmill where he resides, and of his experimental pineapple plantation, farm, farmhouse and cock farm; the lease contract over the Maligaya Feedmill; and the deed of sale of the lot where he has started constructing his house. He clarified, too, that he does not claim residence in Aborlan at the house then under construction; his actual residence is the mezzanine portion of the Maligaya Feedmill building. Faced with the seemingly directly contradictory evidence, the COMELEC apparently grossly misread its import and, because it used wrong considerations, was led into its faulty conclusion. The seeming contradictions arose from the sworn statements of some Aborlan residents attesting that they never saw Mitra in Aborlan; these are controverted by similar sworn statements by other Aborlan residents that Mitra physically resides in Aborlan. The number of witnesses and their conflicting claims for and against Mitras residency appear to have sidetracked the COMELEC. Substantial evidence, however, is not a simple question of number; reason demands that the focus be on what these differing statements say. For example, the sworn statements that Mitra has never been seen in Aborlan border on the unbelievable and loudly speak of their inherent weakness as evidence. Mitra has established business interests in Aborlan, a fact which the respondents have never disputed. He was then the incumbent three-term Representative who, as early as 2008, already entertained thoughts of running for Governor in 2010. It is not disputed, too, that Mitra has started the construction of a house on a lot he bought from Rexter Temple; the site is very near the Maligaya Feedmill that he leased from its owner, Carme Caspe. While Mitra might not have stayed in Aborlan nor in Palawan for most of 2008 and 2009 because his office and activities as a Representative were in Manila, it is hardly credible that he would not be seen in Aborlan. In this regard, the sworn statement of the Punong Barangay of Isaub, Aborlan should carry a lot more weight than the statements of punong barangay officials elsewhere since it is the business of a punong barangay to know who the residents are in his own barangay. The COMELEC apparently missed all these because it was fixated on the perceived coldness and impersonality of Mitras dwelling. The parties submitted documentary evidence likewise requires careful consideration for the correct appraisal of its evidentiary value. On the one hand, the document of sale of the Temple property, the building permit for the house under construction, and the community tax certificate used in these transactions all stated that Mitras residence was Puerto Princesa City. On the other hand, Mitra introduced a notarized contract of lease supported by the sworn explanation of the lessor (Carme Caspe) showing that he indeed leased Maligaya Feedmill. He submitted, too, a residence certificate showing Aborlan as his residence, and an identification card of the House of Representatives showing Aborlan as his residence. We cannot give full evidentiary weight to the contract of sale as evidence relating to Mitras residence for two reasons. First, it is a unilateral contract executed by the seller (Rexter Temple); thus, his statement and belief as to Mitras personal circumstances cannot be taken as conclusive against the latter. Second, the sale involved several vendees, including Mitras brother (Ramon B. Mitra) and one Peter Winston T. Gonzales; his co-vendees still live in Puerto Princesa City; hence, they were all loosely and collectively described to have their residence in Puerto Princesa City.64 Parenthetically, the document simply stated: "I, REXTER TEMPLE, of legal age, Filipino, single and resident of Isaub, Aborlan, Palawan, hereby by these presents, x x x do hereby SELL, TRANSFER and CONVEY unto the said Vendees, ABRAHAM KAHLIL B. MITRA, single; RAMON B. MITRA, married to Mary Ann Mitra; PETER WINSTON T. GONZALES, married to Florecita R. Gonzales, all of legal ages and residents [of] Rancho Sta. Monica, Brgy. Sta. Monica, Puerto Princesa City, their heirs and assigns."65 Thus, the contract contained a mere general statement that loosely described the vendees as Puerto Princesa City residents. This general statement solely came from the vendor. The building permit, on the other hand, was filed by Mitras representative, an architect named John Quillope, who apparently likewise filled the form. That Mitra only signed the building permit form is readily discernible from an

examination of the face of the form; even the statement on his community tax certificate bearing a Puerto Princesa City residence does not appear in his handwriting.66 Significantly, Mitras secretary Lilia Camora attested that it was she who secured the community tax certificate for Mitra in February 2009 without the latters knowledge.67Annex "M" of the respondents Petition before the COMELEC indeed shows that the community tax certificate did not bear the signature of Mitra.68 Mitra secured his own certificate in Aborlan on March 18, 2009. This community tax certificate carries his own signature.69 Parenthetically, per Carme Caspes statement, Mitra leased the feedmill residence in February 2008 and started moving in his belongings in March 2008, confirming the veracity of his Aborlan presence at the time he secured his community tax certificate.70 In these lights, the February 3, 2009 community tax certificate, if at all, carries very little evidentiary value. The respondents expectedly attacked the validity of the lease contract; they contended in their Memorandum that the feedmill was situated in a forest land that cannot be leased, and that the contract, while notarized, was not registered with the required notarial office of the court.71 The validity of the lease contract, however, is not the issue before us; what concerns us is the question of whether Mitra did indeed enter into an agreement for the lease, or strictly for the use, of the Maligaya Feedmill as his residence (while his house, on the lot he bought, was under construction) and whether he indeed resided there. The notarys compliance with the notarial law likewise assumes no materiality as it is a defect not imputable to Mitra; what is important is the parties affirmation before a notary public of the contracts genuineness and due execution. A sworn statement that has no counterpart in the respondents evidence in so far as it provides details (particularly when read with the statement of Ricardo Temple)72 is Carme Caspes statement73 on how Mitras transfer of residence took place. Read together, these statements attest that the transfer of residence was accomplished, not in one single move but, through an incremental process that started in early 2008 and was in place by March 2009, although the house Mitra intended to be his permanent home was not yet then completed.74 In considering the residency issue, the COMELEC practically focused solely on its consideration of Mitras residence at Maligaya Feedmill, on the basis of mere photographs of the premises. In the COMELECs view (expressly voiced out by the Division and fully concurred in by the En Banc), the Maligaya Feedmill building could not have been Mitras residence because it is cold and utterly devoid of any indication of Mitras personality and that it lacks loving attention and details inherent in every home to make it ones residence.75 This was the main reason that the COMELEC relied upon for its conclusion. Such assessment, in our view, based on the interior design and furnishings of a dwelling as shown by and examined only through photographs, is far from reasonable; the COMELEC thereby determined the fitness of a dwelling as a persons residence based solely on very personal and subjective assessment standards when the law is replete with standards that can be used. Where a dwelling qualifies as a residence i.e., the dwelling where a person permanently intends to return to and to remain76 his or her capacity or inclination to decorate the place, or the lack of it, is immaterial. Examined further, the COMELECs reasoning is not only intensely subjective but also flimsy, to the point of grave abuse of discretion when compared with the surrounding indicators showing the Mitra has indeed been physically present in Aborlan for the required period with every intent to settle there. Specifically, it was lost on the COMELEC majority (but not on the Dissent) that Mitra made definite, although incremental transfer moves, as shown by the undisputed business interests he has established in Aborlan in 2008; by the lease of a dwelling where he established his base; by the purchase of a lot for his permanent home; by his transfer of registration as a voter in March 2009; and by the construction of a house all viewed against the backdrop of a bachelor Representative who spent most of his working hours in Manila, who had a whole congressional district to take care of, and who was establishing at the same time his significant presence in the whole Province of Palawan. From these perspectives, we cannot but conclude that the COMELECs approach i.e., the application of subjective non-legal standards and the gross misappreciation of the evidence is tainted with grave abuse of discretion, as the COMELEC used wrong considerations and grossly misread the evidence in arriving at its conclusion. In using subjective standards, the COMELEC committed an act not otherwise within the contemplation of law on an evidentiary point that served as a major basis for its conclusion in the case. With this analysis and conclusion in mind, we come to the critical question of whether Mitra deliberately misrepresented that his residence is in Aborlan to deceive and mislead the people of the Province of Palawan. We do not believe that he committed any deliberate misrepresentation given what he knew of his transfer, as shown by the moves he had made to carry it out. From the evidentiary perspective, we hold that the evidence confirming residence in Aborlan decidedly tilts in Mitras favor; even assuming the worst for Mitra, the evidence in his favor cannot go below the level of an equipoise, i.e., when weighed, Mitras evidence of transfer and residence in Aborlan cannot be overcome by the respondents evidence that he remained a Puerto Princesa City resident. Under the situation prevailing when Mitra filed his COC, we cannot conclude that Mitra committed any misrepresentation, much less a deliberate one, about his residence. The character of Mitras representation before the COMELEC is an aspect of the case that the COMELEC completely failed to consider as it focused mainly on the character of Mitras feedmill residence. For this reason, the

COMELEC was led into error one that goes beyond an ordinary error of judgment. By failing to take into account whether there had been a deliberate misrepresentation in Mitras COC, the COMELEC committed the grave abuse of simply assuming that an error in the COC was necessarily a deliberate falsity in a material representation. In this case, it doubly erred because there was no falsity; as the carefully considered evidence shows, Mitra did indeed transfer his residence within the period required by Section 74 of the OEC. The respondents significantly ask us in this case to adopt the same faulty approach of using subjective norms, as they now argue that given his stature as a member of the prominent Mitra clan of Palawan, and as a three term congressman, it is highly incredible that a small room in a feed mill has served as his residence since 2008.77 We reject this suggested approach outright for the same reason we condemned the COMELECs use of subjective non-legal standards. Mitras feed mill dwelling cannot be considered in isolation and separately from the circumstances of his transfer of residence, specifically, his expressed intent to transfer to a residence outside of Puerto Princesa City to make him eligible to run for a provincial position; his preparatory moves starting in early 2008; his initial transfer through a leased dwelling; the purchase of a lot for his permanent home; and the construction of a house in this lot that, parenthetically, is adjacent to the premises he leased pending the completion of his house. These incremental moves do not offend reason at all, in the way that the COMELECs highly subjective non-legal standards do. Thus, we can only conclude, in the context of the cancellation proceeding before us, that the respondents have not presented a convincing case sufficient to overcome Mitras evidence of effective transfer to and residence in Aborlan and the validity of his representation on this point in his COC, while the COMELEC could not even present any legally acceptable basis to conclude that Mitras statement in his COC regarding his residence was a misrepresentation. Mitra has significant relationship with, and intimate knowledge of, the constituency he wishes to serve. Citing jurisprudence, we began this ponencia with a discussion of the purpose of the residency requirement under the law. By law, this residency can be anywhere within the Province of Palawan, except for Puerto Princesa City because of its reclassification as a highly urbanized city. Thus, residency in Aborlan is completely consistent with the purpose of the law, as Mitra thereby declared and proved his required physical presence in the Province of Palawan. We also consider that even before his transfer of residence, he already had intimate knowledge of the Province of Palawan, particularly of the whole 2nd legislative district that he represented for three terms. For that matter, even the respondents themselves impliedly acknowledged that the Mitras, as a family, have been identified with elective public service and politics in the Province of Palawan.78 This means to us that Mitra grew up in the politics of Palawan. We can reasonably conclude from all these that Mitra is not oblivious to the needs, difficulties, aspirations, potential for growth and development, and all matters vital to the common welfare of the constituency he intends to serve. Mitra who is no stranger to Palawan has merely been compelled after serving three terms as representative of the congressional district that includes Puerto Princesa City and Aborlan by legal developments to transfer his residence to Aborlan to qualify as a Province of Palawan voter. To put it differently, were it not for the reclassification of Puerto Princesa City from a component city to a highly urbanized city, Mitra would not have encountered any legal obstacle to his intended gubernatorial bid based on his knowledge of and sensitivity to the needs of the Palawan electorate. This case, incidentally, is not the first that we have encountered where a former elective official had to transfer residence in order to continue his public service in another political unit that he could not legally access, as a candidate, without a change of residence. In Torayno, Sr. v. COMELEC,79 former Governor Vicente Y. Emano re-occupied a house he owned and had leased out in Cagayan de Oro City to qualify as a candidate for the post of Mayor of that city (like Puerto Princesa City, a highly urbanized city whose residents cannot vote for and be voted upon as elective provincial officials). We said in that case that In other words, the actual, physical and personal presence of herein private respondent in Cagayan de Oro City is substantial enough to show his intention to fulfill the duties of mayor and for the voters to evaluate his qualifications for the mayorship. Petitioners' very legalistic, academic and technical approach to the residence requirement does not satisfy this simple, practical and common-sense rationale for the residence requirement. In Asistio v. Hon. Trinidad Pe-Aguirre,80 we also had occasion to rule on the residency and right to vote of former Congressman Luis A. Asistio who had been a congressman for Caloocan in 1992, 1995, 1998 and 2004, and, in the words of the Decision, "is known to be among the prominent political families in Caloocan City."81 We recognized Asistios position that a mistake had been committed in his residency statement, and concluded that the mistake is not "proof that Asistio has abandoned his domicile in Caloocan City, or that he has established residence outside of Caloocan City." By this recognition, we confirmed that Asistio has not committed any deliberate misrepresentation in his COC.

These cases are to be distinguished from the case of Velasco v. COMELEC82 where the COMELEC cancelled the COC of Velasco, a mayoralty candidate, on the basis of his undisputed knowledge, at the time he filed his COC, that his inclusion and registration as a voter had been denied. His failure to register as a voter was a material fact that he had clearly withheld from the COMELEC; he knew of the denial of his application to register and yet concealed his non-voter status when he filed his COC. Thus, we affirmed the COMELECs action in cancelling his COC. If there is any similarity at all in Velasco and the present case, that similarity is in the recognition in both cases of the rule of law. In Velasco, we recognized based on the law that a basic defect existed prior to his candidacy, leading to his disqualification and the vice-mayor-elects assumption to the office. In the present case, we recognize the validity of Mitras COC, again on the basis of substantive and procedural law, and no occasion arises for the vice-governor-elect to assume the gubernatorial post. Mitra has been proclaimed winner in the electoral contest and has therefore the mandate of the electorate to serve We have applied in past cases the principle that the manifest will of the people as expressed through the ballot must be given fullest effect; in case of doubt, political laws must be interpreted to give life and spirit to the popular mandate.83 Thus, we have held that while provisions relating to certificates of candidacy are in mandatory terms, it is an established rule of interpretation as regards election laws, that mandatory provisions, requiring certain steps before elections, will be construed as directory after the elections, to give effect to the will of the people.84 Quite recently, however, we warned against a blanket and unqualified reading and application of this ruling, as it may carry dangerous significance to the rule of law and the integrity of our elections. For one, such blanket/unqualified reading may provide a way around the law that effectively negates election requirements aimed at providing the electorate with the basic information for an informed choice about a candidates eligibility and fitness for office.85 Short of adopting a clear cut standard, we thus made the following clarification: We distinguish our ruling in this case from others that we have made in the past by the clarification that COC defects beyond matters of form and that involve material misrepresentations cannot avail of the benefit of our ruling that COC mandatory requirements before elections are considered merely directory after the people shall have spoken. A mandatory and material election law requirement involves more than the will of the people in any given locality. Where a material COC misrepresentation under oath is made, thereby violating both our election and criminal laws, we are faced as well with an assault on the will of the people of the Philippines as expressed in our laws. In a choice between provisions on material qualifications of elected officials, on the one hand, and the will of the electorate in any given locality, on the other, we believe and so hold that we cannot choose the electorate will.86
1avv phi 1

Earlier, Frivaldo v. COMELEC87 provided the following test: [T]his Court has repeatedly stressed the importance of giving effect to the sovereign will in order to ensure the survival of our democracy. In any action involving the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the issues in a manner that would give effect to the will of the majority, for it is merely sound public policy to cause elective offices to be filled by those who are the choice of the majority. To successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility is so patently antagonistic to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote. [Emphasis supplied.] With the conclusion that Mitra did not commit any material misrepresentation in his COC, we see no reason in this case to appeal to the primacy of the electorates will. We cannot deny, however, that the people of Palawan have spoken in an election where residency qualification had been squarely raised and their voice has erased any doubt about their verdict on Mitras qualifications. WHEREFORE, premises considered, we GRANT the petition and ANNUL the assailed COMELEC Resolutions in Antonio V. Gonzales and Orlando R. Balbon, Jr. v. Abraham Kahlil B. Mitra (SPA No. 09-038 [C]). We DENY the respondents petition to cancel Abraham Kahlil Mitras Certificate of Candidacy. No costs. SO ORDERED.

G.R. No. 189698

February 22, 2010

ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners, vs. COMMISSION ON ELECTIONS, Respondent. RESOLUTION PUNO, C.J.: Upon a careful review of the case at bar, this Court resolves to grant the respondent Commission on Elections (COMELEC) motion for reconsideration, and the movants-intervenors motions for reconsideration-in-intervention, of this Courts December 1, 2009 Decision (Decision).1 The assailed Decision granted the Petition for Certiorari and Prohibition filed by Eleazar P. Quinto and Gerino A. Tolentino, Jr. and declared as unconstitutional the second proviso in the third paragraph of Section 13 of Republic Act No. 9369,2 Section 66 of the Omnibus Election Code3 and Section 4(a) of COMELEC Resolution No. 8678,4mainly on the ground that they violate the equal protection clause of the Constitution and suffer from overbreadth. The assailed Decision thus paved the way for public appointive officials to continue discharging the powers, prerogatives and functions of their office notwithstanding their entry into the political arena. In support of their respective motions for reconsideration, respondent COMELEC and movants-intervenors submit the following arguments: (1) The assailed Decision is contrary to, and/or violative of, the constitutional proscription against the participation of public appointive officials and members of the military in partisan political activity; (2) The assailed provisions do not violate the equal protection clause when they accord differential treatment to elective and appointive officials, because such differential treatment rests on material and substantial distinctions and is germane to the purposes of the law; (3) The assailed provisions do not suffer from the infirmity of overbreadth; and (4) There is a compelling need to reverse the assailed Decision, as public safety and interest demand such reversal. We find the foregoing arguments meritorious. I. Procedural Issues First, we shall resolve the procedural issues on the timeliness of the COMELECs motion for reconsideration which was filed on December 15, 2009, as well as the propriety of the motions for reconsideration-in-intervention which were filed after the Court had rendered its December 1, 2009 Decision. i. Timeliness of COMELECs Motion for Reconsideration Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court,5 in relation to Section 1, Rule 52 of the same rules,6COMELEC had a period of fifteen days from receipt of notice of the assailed Decision within which to move for its reconsideration. COMELEC received notice of the assailed Decision on December 2, 2009, hence, had until December 17, 2009 to file a Motion for Reconsideration. The Motion for Reconsideration of COMELEC was timely filed. It was filed on December 14, 2009. The corresponding Affidavit of Service (in substitution of the one originally submitted on December 14, 2009) was subsequently filed on December 17, 2009 still within the reglementary period. ii. Propriety of the Motions for Reconsideration-in-Intervention Section 1, Rule 19 of the Rules of Court provides: A person who has legal interest in the matter in litigation or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenors rights may be fully protected in a separate proceeding.

Pursuant to the foregoing rule, this Court has held that a motion for intervention shall be entertained when the following requisites are satisfied: (1) the would-be intervenor shows that he has a substantial right or interest in the case; and (2) such right or interest cannot be adequately pursued and protected in another proceeding.7 Upon the other hand, Section 2, Rule 19 of the Rules of Court provides the time within which a motion for intervention may be filed, viz.: SECTION 2. Time to intervene. The motion for intervention may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. (italics supplied) This rule, however, is not inflexible. Interventions have been allowed even beyond the period prescribed in the Rule, when demanded by the higher interest of justice. Interventions have also been granted to afford indispensable parties, who have not been impleaded, the right to be heard even after a decision has been rendered by the trial court,8 when the petition for review of the judgment has already been submitted for decision before the Supreme Court,9 and even where the assailed order has already become final and executory.10 In Lim v. Pacquing,11 the motion for intervention filed by the Republic of the Philippines was allowed by this Court to avoid grave injustice and injury and to settle once and for all the substantive issues raised by the parties. In fine, the allowance or disallowance of a motion for intervention rests on the sound discretion of the court12 after consideration of the appropriate circumstances.13 We stress again that Rule 19 of the Rules of Court is a rule of procedure whose object is to make the powers of the court fully and completely available for justice.14 Its purpose is not to hinder or delay, but to facilitate and promote the administration of justice.15 We rule that, with the exception of the IBP Cebu City Chapter, all the movants-intervenors may properly intervene in the case at bar. First, the movants-intervenors have each sufficiently established a substantial right or interest in the case. As a Senator of the Republic, Senator Manuel A. Roxas has a right to challenge the December 1, 2009 Decision, which nullifies a long established law; as a voter, he has a right to intervene in a matter that involves the electoral process; and as a public officer, he has a personal interest in maintaining the trust and confidence of the public in its system of government. On the other hand, former Senator Franklin M. Drilon and Tom V. Apacible are candidates in the May 2010 elections running against appointive officials who, in view of the December 1, 2009 Decision, have not yet resigned from their posts and are not likely to resign from their posts. They stand to be directly injured by the assailed Decision, unless it is reversed. Moreover, the rights or interests of said movants-intervenors cannot be adequately pursued and protected in another proceeding. Clearly, their rights will be foreclosed if this Courts Decision attains finality and forms part of the laws of the land. With regard to the IBP Cebu City Chapter, it anchors its standing on the assertion that "this case involves the constitutionality of elections laws for this coming 2010 National Elections," and that "there is a need for it to be allowed to intervene xxx so that the voice of its members in the legal profession would also be heard before this Highest Tribunal as it resolves issues of transcendental importance."16 Prescinding from our rule and ruling case law, we find that the IBP-Cebu City Chapter has failed to present a specific and substantial interest sufficient to clothe it with standing to intervene in the case at bar. Its invoked interest is, in character, too indistinguishable to justify its intervention. We now turn to the substantive issues. II. Substantive Issues The assailed Decision struck down Section 4(a) of Resolution 8678, the second proviso in the third paragraph of Section 13 of Republic Act (RA) 9369, and Section 66 of the Omnibus Election Code, on the following grounds: (1) They violate the equal protection clause of the Constitution because of the differential treatment of persons holding appointive offices and those holding elective positions; (2) They are overbroad insofar as they prohibit the candidacy of all civil servants holding appointive posts: (a) without distinction as to whether or not they occupy high/influential positions in the government, and (b) they limit these civil servants activity regardless of whether they be partisan or nonpartisan in character, or whether they be in the national, municipal or barangay level; and

(3) Congress has not shown a compelling state interest to restrict the fundamental right of these public appointive officials. We grant the motions for reconsideration. We now rule that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369 are not unconstitutional, and accordingly reverse our December 1, 2009 Decision. III. Section 4(a) of COMELEC Resolution 8678 Compliant with Law Section 4(a) of COMELEC Resolution 8678 is a faithful reflection of the present state of the law and jurisprudence on the matter, viz.: Incumbent Appointive Official. - Under Section 13 of RA 9369, which reiterates Section 66 of the Omnibus Election Code, any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. Incumbent Elected Official. Upon the other hand, pursuant to Section 14 of RA 9006 or the Fair Election Act,17which repealed Section 67 of the Omnibus Election Code18 and rendered ineffective Section 11 of R.A. 8436 insofar as it considered an elected official as resigned only upon the start of the campaign period corresponding to the positions for which they are running,19 an elected official is not deemed to have resigned from his office upon the filing of his certificate of candidacy for the same or any other elected office or position. In fine, an elected official may run for another position without forfeiting his seat. These laws and regulations implement Section 2(4), Article IX-B of the 1987 Constitution, which prohibits civil service officers and employees from engaging in any electioneering or partisan political campaign. The intention to impose a strict limitation on the participation of civil service officers and employees in partisan political campaigns is unmistakable. The exchange between Commissioner Quesada and Commissioner Foz during the deliberations of the Constitutional Commission is instructive: MS. QUESADA. xxxx Secondly, I would like to address the issue here as provided in Section 1 (4), line 12, and I quote: "No officer or employee in the civil service shall engage, directly or indirectly, in any partisan political activity." This is almost the same provision as in the 1973 Constitution. However, we in the government service have actually experienced how this provision has been violated by the direct or indirect partisan political activities of many government officials. So, is the Committee willing to include certain clauses that would make this provision more strict, and which would deter its violation? MR. FOZ. Madam President, the existing Civil Service Law and the implementing rules on the matter are more than exhaustive enough to really prevent officers and employees in the public service from engaging in any form of partisan political activity. But the problem really lies in implementation because, if the head of a ministry, and even the superior officers of offices and agencies of government will themselves violate the constitutional injunction against partisan political activity, then no string of words that we may add to what is now here in this draft will really implement the constitutional intent against partisan political activity. x x x20 (italics supplied) To emphasize its importance, this constitutional ban on civil service officers and employees is presently reflected and implemented by a number of statutes. Section 46(b)(26), Chapter 7 and Section 55, Chapter 8 both of Subtitle A, Title I, Book V of the Administrative Code of 1987 respectively provide in relevant part: Section 44. Discipline: General Provisions: xxxx (b) The following shall be grounds for disciplinary action: xxxx (26) Engaging directly or indirectly in partisan political activities by one holding a non-political office. xxxx

Section 55. Political Activity. No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of his candidates for public office whom he supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code. Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further makes intervention by civil service officers and employees in partisan political activities an election offense, viz.: SECTION 261. Prohibited Acts. The following shall be guilty of an election offense: xxxx (i) Intervention of public officers and employees. Any officer or employee in the civil service, except those holding political offices; any officer, employee, or member of the Armed Forces of the Philippines, or any police force, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election campaign or engages in any partisan political activity, except to vote or to preserve public order, if he is a peace officer. The intent of both Congress and the framers of our Constitution to limit the participation of civil service officers and employees in partisan political activities is too plain to be mistaken. But Section 2(4), Article IX-B of the 1987 Constitution and the implementing statutes apply only to civil servants holding apolitical offices. Stated differently, the constitutional ban does not cover elected officials, notwithstanding the fact that "[t]he civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters."21 This is because elected public officials, by the very nature of their office, engage in partisan political activities almost all year round, even outside of the campaign period.22 Political partisanship is the inevitable essence of a political office, elective positions included.23 The prohibition notwithstanding, civil service officers and employees are allowed to vote, as well as express their views on political issues, or mention the names of certain candidates for public office whom they support. This is crystal clear from the deliberations of the Constitutional Commission, viz.: MS. AQUINO: Mr. Presiding Officer, my proposed amendment is on page 2, Section 1, subparagraph 4, lines 13 and 14. On line 13, between the words "any" and "partisan," add the phrase ELECTIONEERING AND OTHER; and on line 14, delete the word "activity" and in lieu thereof substitute the word CAMPAIGN. May I be allowed to explain my proposed amendment? THE PRESIDING OFFICER (Mr. Treas): Commissioner Aquino may proceed. MS. AQUINO: The draft as presented by the Committee deleted the phrase "except to vote" which was adopted in both the 1935 and 1973 Constitutions. The phrase "except to vote" was not intended as a guarantee to the right to vote but as a qualification of the general prohibition against taking part in elections. Voting is a partisan political activity. Unless it is explicitly provided for as an exception to this prohibition, it will amount to disenfranchisement. We know that suffrage, although plenary, is not an unconditional right. In other words, the Legislature can always pass a statute which can withhold from any class the right to vote in an election, if public interest so required. I would only like to reinstate the qualification by specifying the prohibited acts so that those who may want to vote but who are likewise prohibited from participating in partisan political campaigns or electioneering may vote. MR. FOZ: There is really no quarrel over this point, but please understand that there was no intention on the part of the Committee to disenfranchise any government official or employee. The elimination of the last clause of this provision was precisely intended to protect the members of the civil service in the sense that they are not being deprived of the freedom of expression in a political contest. The last phrase or clause might have given the impression that a government employee or worker has no right whatsoever in an election campaign except to vote, which is not the case. They are still free to express their views although the intention is not really to allow them to take part actively in a political campaign.24 IV. Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code Do Not Violate the Equal Protection Clause

We now hold that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369 are not violative of the equal protection clause of the Constitution. i. Farias, et al. v. Executive Secretary, et al. is Controlling In truth, this Court has already ruled squarely on whether these deemed-resigned provisions challenged in the case at bar violate the equal protection clause of the Constitution in Farias, et al. v. Executive Secretary, et al.25 In Farias, the constitutionality of Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, was assailed on the ground, among others, that it unduly discriminates against appointive officials. As Section 14 repealed Section 67 (i.e., the deemed-resigned provision in respect of elected officials) of the Omnibus Election Code, elected officials are no longer considered ipso facto resigned from their respective offices upon their filing of certificates of candidacy. In contrast, since Section 66 was not repealed, the limitation on appointive officials continues to be operative they are deemed resigned when they file their certificates of candidacy. The petitioners in Farias thus brought an equal protection challenge against Section 14, with the end in view of having the deemed-resigned provisions "apply equally" to both elected and appointive officials. We held, however, that the legal dichotomy created by the Legislature is a reasonable classification, as there are material and significant distinctions between the two classes of officials. Consequently, the contention that Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, infringed on the equal protection clause of the Constitution, failed muster. We ruled: The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous. The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner: The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not. Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take (sic) part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities. By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification. Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis--vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed.26 The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our assailed Decision gave it new life. We ought to be guided by the doctrine of stare decisis et non quieta movere. This doctrine, which is really "adherence to precedents," mandates that once a case has been decided one way, then another case involving exactly the same point at issue should be decided in the same manner.27 This doctrine is one of policy grounded on the necessity for securing certainty and stability of judicial decisions. As the renowned jurist Benjamin Cardozo stated in his treatise The Nature of the Judicial Process:

It will not do to decide the same question one way between one set of litigants and the opposite way between another. "If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights." Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.28 Our Farias ruling on the equal protection implications of the deemed-resigned provisions cannot be minimalized as mere obiter dictum. It is trite to state that an adjudication on any point within the issues presented by the case cannot be considered as obiter dictum.29 This rule applies to all pertinent questions that are presented and resolved in the regular course of the consideration of the case and lead up to the final conclusion, and to any statement as to the matter on which the decision is predicated.30 For that reason, a point expressly decided does not lose its value as a precedent because the disposition of the case is, or might have been, made on some other ground; or even though, by reason of other points in the case, the result reached might have been the same if the court had held, on the particular point, otherwise than it did.31 As we held in Villanueva, Jr. v. Court of Appeals, et al.:32 A decision which the case could have turned on is not regarded as obiter dictum merely because, owing to the disposal of the contention, it was necessary to consider another question, nor can an additional reason in a decision, brought forward after the case has been disposed of on one ground, be regarded as dicta. So, also, where a case presents two (2) or more points, any one of which is sufficient to determine the ultimate issue, but the court actually decides all such points, the case as an authoritative precedent as to every point decided, and none of such points can be regarded as having the status of a dictum, and one point should not be denied authority merely because another point was more dwelt on and more fully argued and considered, nor does a decision on one proposition make statements of the court regarding other propositions dicta.33 (italics supplied) ii. Classification Germane to the Purposes of the Law The Farias ruling on the equal protection challenge stands on solid ground even if reexamined. To start with, the equal protection clause does not require the universal application of the laws to all persons or things without distinction.34 What it simply requires is equality among equals as determined according to a valid classification.35 The test developed by jurisprudence here and yonder is that of reasonableness,36 which has four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the purposes of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of the same class.37 Our assailed Decision readily acknowledged that these deemed-resigned provisions satisfy the first, third and fourth requisites of reasonableness. It, however, proffers the dubious conclusion that the differential treatment of appointive officials vis--vis elected officials is not germane to the purpose of the law, because "whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain," viz.: For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the same influence as the Vice-President who at the same time is appointed to a Cabinet post (in the recent past, elected Vice-Presidents were appointed to take charge of national housing, social welfare development, interior and local government, and foreign affairs). With the fact that they both head executive offices, there is no valid justification to treat them differently when both file their [Certificates of Candidacy] for the elections. Under the present state of our law, the Vice-President, in the example, running this time, let us say, for President, retains his position during the entire election period and can still use the resources of his office to support his campaign.38 Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice, the Legislature need not address every manifestation of the evil at once; it may proceed "one step at a time."39 In addressing a societal concern, it must invariably draw lines and make choices, thereby creating some inequity as to those included or excluded.40 Nevertheless, as long as "the bounds of reasonable choice" are not exceeded, the courts must defer to the legislative judgment.41 We may not strike down a law merely because the legislative aim would have been more fully achieved by expanding the class.42 Stated differently, the fact that a legislative classification, by itself, is underinclusive will not render it unconstitutionally arbitrary or invidious.43 There is no constitutional requirement that regulation must reach each and every class to which it might be applied;44 that the Legislature must be held rigidly to the choice of regulating all or none. Thus, any person who poses an equal protection challenge must convincingly show that the law creates a classification that is "palpably arbitrary or capricious."45 He must refute all possible rational bases for the differing treatment, whether or not the Legislature cited those bases as reasons for the enactment,46 such that the

constitutionality of the law must be sustained even if the reasonableness of the classification is "fairly debatable."47 In the case at bar, the petitioners failed and in fact did not even attempt to discharge this heavy burden. Our assailed Decision was likewise silent as a sphinx on this point even while we submitted the following thesis: ... [I]t is not sufficient grounds for invalidation that we may find that the statutes distinction is unfair, underinclusive , unwise, or not the best solution from a public-policy standpoint; rather, we must find that there is no reasonably rational reason for the differing treatment.48 In the instant case, is there a rational justification for excluding elected officials from the operation of the deemed resigned provisions? I submit that there is. An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people.49 It involves the choice or selection of candidates to public office by popular vote.50 Considering that elected officials are put in office by their constituents for a definite term, it may justifiably be said that they were excluded from the ambit of the deemed resigned provisions in utmost respect for the mandate of the sovereign will. In other words, complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are concerned. The dichotomized treatment of appointive and elective officials is therefore germane to the purposes of the law. For the law was made not merely to preserve the integrity, efficiency, and discipline of the public service; the Legislature, whose wisdom is outside the rubric of judicial scrutiny, also thought it wise to balance this with the competing, yet equally compelling, interest of deferring to the sovereign will.51 (emphasis in the original) In fine, the assailed Decision would have us "equalize the playing field" by invalidating provisions of law that seek to restrain the evils from running riot. Under the pretext of equal protection, it would favor a situation in which the evils are unconfined and vagrant, existing at the behest of both appointive and elected officials, over another in which a significant portion thereof is contained. The absurdity of that position is self-evident, to say the least. The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his dissent, that elected officials (vis--vis appointive officials) have greater political clout over the electorate, is indeed a matter worth exploring but not by this Court. Suffice it to say that the remedy lies with the Legislature. It is the Legislature that is given the authority, under our constitutional system, to balance competing interests and thereafter make policy choices responsive to the exigencies of the times. It is certainly within the Legislatures power to make the deemed-resigned provisions applicable to elected officials, should it later decide that the evils sought to be prevented are of such frequency and magnitude as to tilt the balance in favor of expanding the class. This Court cannot and should not arrogate unto itself the power to ascertain and impose on the people the best state of affairs from a public policy standpoint. iii. Mancuso v. Taft Has Been Overruled Finding no Philippine jurisprudence to prop up its equal protection ruling, our assailed Decision adverted to, and extensively cited, Mancuso v. Taft.52 This was a decision of the First Circuit of the United States Court of Appeals promulgated in March 1973, which struck down as unconstitutional a similar statutory provision. Pathetically, our assailed Decision, relying on Mancuso, claimed: (1) The right to run for public office is "inextricably linked" with two fundamental freedoms freedom of expression and association; (2) Any legislative classification that significantly burdens this fundamental right must be subjected to strict equal protection review; and (3) While the state has a compelling interest in maintaining the honesty and impartiality of its public work force, the deemed-resigned provisions pursue their objective in a far too heavy-handed manner as to render them unconstitutional. It then concluded with the exhortation that since "the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too, should follow suit." Our assailed Decisions reliance on Mancuso is completely misplaced. We cannot blink away the fact that the United States Supreme Court effectively overruled Mancuso three months after its promulgation by the United States Court of Appeals. In United States Civil Service Commission, et al. v. National Association of Letter Carriers AFL-CIO, et al.53 and Broadrick, et al. v. State of Oklahoma, et al.,54 the United States Supreme Court was faced with the issue of whether statutory provisions prohibiting federal55 and state56 employees from taking an active part in political management or in political campaigns were unconstitutional as to warrant facial invalidation. Violation of these provisions results in dismissal from employment and possible criminal sanctions.

The Court declared these provisions compliant with the equal protection clause. It held that (i) in regulating the speech of its employees, the state as employer has interests that differ significantly from those it possesses in regulating the speech of the citizenry in general; (ii) the courts must therefore balance the legitimate interest of employee free expression against the interests of the employer in promoting efficiency of public services; (iii) if the employees expression interferes with the maintenance of efficient and regularly functioning services, the limitation on speech is not unconstitutional; and (iv) the Legislature is to be given some flexibility or latitude in ascertaining which positions are to be covered by any statutory restrictions.57 Therefore, insofar as government employees are concerned, the correct standard of review is an interest-balancing approach, a means-end scrutiny that examines the closeness of fit between the governmental interests and the prohibitions in question.58 Letter Carriers elucidated on these principles, as follows: Until now, the judgment of Congress, the Executive, and the country appears to have been that partisan political activities by federal employees must be limited if the Government is to operate effectively and fairly, elections are to play their proper part in representative government, and employees themselves are to be sufficiently free from improper influences. The restrictions so far imposed on federal employees are not aimed at particular parties, groups, or points of view, but apply equally to all partisan activities of the type described. They discriminate against no racial, ethnic, or religious minorities. Nor do they seek to control political opinions or beliefs, or to interfere with or influence anyone's vote at the polls. But, as the Court held in Pickering v. Board of Education,59 the government has an interest in regulating the conduct and the speech of its employees that differ(s) significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the (employee), as a citizen, in commenting upon matters of public concern and the interest of the (government), as an employer, in promoting the efficiency of the public services it performs through its employees. Although Congress is free to strike a different balance than it has, if it so chooses, we think the balance it has so far struck is sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act. It seems fundamental in the first place that employees in the Executive Branch of the Government, or those working for any of its agencies, should administer the law in accordance with the will of Congress, rather than in accordance with their own or the will of a political party. They are expected to enforce the law and execute the programs of the Government without bias or favoritism for or against any political party or group or the members thereof. A major thesis of the Hatch Act is that to serve this great end of Government-the impartial execution of the laws-it is essential that federal employees, for example, not take formal positions in political parties, not undertake to play substantial roles in partisan political campaigns, and not run for office on partisan political tickets. Forbidding activities like these will reduce the hazards to fair and effective government. There is another consideration in this judgment: it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent. Another major concern of the restriction against partisan activities by federal employees was perhaps the immediate occasion for enactment of the Hatch Act in 1939. That was the conviction that the rapidly expanding Government work force should not be employed to build a powerful, invincible, and perhaps corrupt political machine. The experience of the 1936 and 1938 campaigns convinced Congress that these dangers were sufficiently real that substantial barriers should be raised against the party in power-or the party out of power, for that matter-using the thousands or hundreds of thousands of federal employees, paid for at public expense, to man its political structure and political campaigns. A related concern, and this remains as important as any other, was to further serve the goal that employment and advancement in the Government service not depend on political performance, and at the same time to make sure that Government employees would be free from pressure and from express or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their own beliefs. It may be urged that prohibitions against coercion are sufficient protection; but for many years the joint judgment of the Executive and Congress has been that to protect the rights of federal employees with respect to their jobs and their political acts and beliefs it is not enough merely to forbid one employee to attempt to influence or coerce another. For example, at the hearings in 1972 on proposed legislation for liberalizing the prohibition against political activity, the Chairman of the Civil Service Commission stated that the prohibitions against active participation in partisan political management and partisan political campaigns constitute the most significant safeguards against coercion . . .. Perhaps Congress at some time will come to a different view of the realities of political life and Government service; but that is its current view of the matter, and we are not now in any position to dispute it. Nor, in our view, does the Constitution forbid it. Neither the right to associate nor the right to participate in political activities is absolute in any event.60 x x x xxxx

As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations. (italics supplied) Broadrick likewise definitively stated that the assailed statutory provision is constitutionally permissible, viz.: Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan political conduct of state employees. Appellants freely concede that such restrictions serve valid and important state interests, particularly with respect to attracting greater numbers of qualified people by insuring their job security, free from the vicissitudes of the elective process, and by protecting them from political extortion. Rather, appellants maintain that however permissible, even commendable, the goals of s 818 may be, its language is unconstitutionally vague and its prohibitions too broad in their sweep, failing to distinguish between conduct that may be proscribed and conduct that must be permitted. For these and other reasons, appellants assert that the sixth and seventh paragraphs of s 818 are void in toto and cannot be enforced against them or anyone else. We have held today that the Hatch Act is not impermissibly vague.61 We have little doubt that s 818 is similarly not so vague that men of common intelligence must necessarily guess at its meaning.62 Whatever other problems there are with s 818, it is all but frivolous to suggest that the section fails to give adequate warning of what activities it proscribes or fails to set out explicit standards' for those who must apply it. In the plainest language, it prohibits any state classified employee from being an officer or member of a partisan political club or a candidate for any paid public office. It forbids solicitation of contributions for any political organization, candidacy or other political purpose and taking part in the management or affairs of any political party or in any political campaign. Words inevitably contain germs of uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms in s 818 as partisan, or take part in, or affairs of political parties. But what was said in Letter Carriers, is applicable here: there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.' x x x xxxx [Appellants] nevertheless maintain that the statute is overbroad and purports to reach protected, as well as unprotected conduct, and must therefore be struck down on its face and held to be incapable of any constitutional application. We do not believe that the overbreadth doctrine may appropriately be invoked in this manner here. xxxx The consequence of our departure from traditional rules of standing in the First Amendment area is that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. x x x x x x But the plain import of our cases is, at the very least, that facial over-breadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from pure speech toward conduct and that conduct-even if expressive-falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect-at best a prediction-cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that s 818 is not substantially overbroad and that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied. Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s 818 is directed, by its terms, at political expression which if engaged in by private persons would plainly be protected by the First and Fourteenth Amendments. But at the same time, s 818 is not a censorial statute, directed at particular groups or viewpoints. The statute, rather, seeks to regulate political activity in an even-handed and neutral manner. As indicted, such statutes have in the past been subject to a less exacting overbreadth scrutiny. Moreover, the fact remains that s 818 regulates a substantial spectrum of conduct that is as manifestly subject to state regulation as the public peace or criminal trespass. This much was established in United Public Workers v. Mitchell, and has been unhesitatingly reaffirmed today in Letter Carriers. Under the decision in Letter Carriers, there is no question that s 818 is valid at least insofar as it forbids classified employees from: soliciting contributions for partisan candidates, political parties, or other partisan political purposes; becoming members of national, state, or local committees of political parties, or officers or committee members in partisan political clubs, or candidates for any paid public office; taking part in the management or affairs of any political party's partisan political campaign; serving as delegates or alternates to caucuses or conventions of political parties; addressing or taking an active part in partisan political rallies or meetings; soliciting votes or assisting voters at the polls or helping in a partisan effort to get voters to the polls;

participating in the distribution of partisan campaign literature; initiating or circulating partisan nominating petitions; or riding in caravans for any political party or partisan political candidate. x x x It may be that such restrictions are impermissible and that s 818 may be susceptible of some other improper applications. But, as presently construed, we do not believe that s 818 must be discarded in toto because some persons arguably protected conduct may or may not be caught or chilled by the statute. Section 818 is not substantially overbroad and it not, therefore, unconstitutional on its face. (italics supplied) It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny the principles enunciated in Letter Carriers and Broadrick. He would hold, nonetheless, that these cases cannot be interpreted to mean a reversal of Mancuso, since they "pertain to different types of laws and were decided based on a different set of facts," viz.: In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Hatch Acts prohibition against "active participation in political management or political campaigns." The plaintiffs desired to campaign for candidates for public office, to encourage and get federal employees to run for state and local offices, to participate as delegates in party conventions, and to hold office in a political club. In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in the (sic) Oklahomas Merit System of Personnel Administration Act restricting the political activities of the States classified civil servants, in much the same manner as the Hatch Act proscribed partisan political activities of federal employees. Prior to the commencement of the action, the appellants actively participated in the 1970 reelection campaign of their superior, and were administratively charged for asking other Corporation Commission employees to do campaign work or to give referrals to persons who might help in the campaign, for soliciting money for the campaign, and for receiving and distributing campaign posters in bulk. Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision. Kenneth Mancuso, a full time police officer and classified civil service employee of the City of Cranston, filed as a candidate for nomination as representative to the Rhode Island General Assembly. The Mayor of Cranston then began the process of enforcing the resign-to-run provision of the City Home Rule Charter. Clearly, as the above-cited US cases pertain to different types of laws and were decided based on a different set of facts, Letter Carriers and Broadrick cannot be interpreted to mean a reversal of Mancuso. x x x (italics in the original) We hold, however, that his position is belied by a plain reading of these cases. Contrary to his claim, Letter Carriers, Broadrick and Mancuso all concerned the constitutionality of resign-to-run laws, viz.: (1) Mancuso involved a civil service employee who filed as a candidate for nomination as representative to the Rhode Island General Assembly. He assailed the constitutionality of 14.09(c) of the City Home Rule Charter, which prohibits "continuing in the classified service of the city after becoming a candidate for nomination or election to any public office." (2) Letter Carriers involved plaintiffs who alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Hatch Acts prohibition against "active participation in political management or political campaigns"63 with respect to certain defined activities in which they desired to engage. The plaintiffs relevant to this discussion are: (a) The National Association of Letter Carriers, which alleged that its members were desirous of, among others, running in local elections for offices such as school board member, city council member or mayor; (b) Plaintiff Gee, who alleged that he desired to, but did not, file as a candidate for the office of Borough Councilman in his local community for fear that his participation in a partisan election would endanger his job; and (c) Plaintiff Myers, who alleged that he desired to run as a Republican candidate in the 1971 partisan election for the mayor of West Lafayette, Indiana, and that he would do so except for fear of losing his job by reason of violation of the Hatch Act. The Hatch Act defines "active participation in political management or political campaigns" by cross-referring to the rules made by the Civil Service Commission. The rule pertinent to our inquiry states: 30. Candidacy for local office: Candidacy for a nomination or for election to any National, State, county, or municipal office is not permissible. The prohibition against political activity extends not merely to formal announcement of candidacy but also to the preliminaries leading to such announcement and to canvassing or soliciting support or doing or permitting to be done any act in furtherance of candidacy. The fact that candidacy, is merely passive is immaterial; if an employee acquiesces in the efforts of friends in furtherance of such candidacy such acquiescence constitutes an infraction of the prohibitions against political activity. (italics supplied)

Section 9(b) requires the immediate removal of violators and forbids the use of appropriated funds thereafter to pay compensation to these persons.64 (3) Broadrick was a class action brought by certain Oklahoma state employees seeking a declaration of unconstitutionality of two sub-paragraphs of Section 818 of Oklahomas Merit System of Personnel Administration Act. Section 818 (7), the paragraph relevant to this discussion, states that "[n]o employee in the classified service shall be a candidate for nomination or election to any paid public office" Violation of Section 818 results in dismissal from employment, possible criminal sanctions and limited state employment ineligibility. Consequently, it cannot be denied that Letter Carriers and Broadrick effectively overruled Mancuso. By no stretch of the imagination could Mancuso still be held operative, as Letter Carriers and Broadrick (i) concerned virtually identical resign-to-run laws, and (ii) were decided by a superior court, the United States Supreme Court. It was thus not surprising for the First Circuit Court of Appeals the same court that decided Mancuso to hold categorically and emphatically in Magill v. Lynch65 that Mancuso is no longer good law. As we priorly explained: Magill involved Pawtucket, Rhode Island firemen who ran for city office in 1975. Pawtuckets "Little Hatch Act" prohibits city employees from engaging in a broad range of political activities. Becoming a candidate for any city office is specifically proscribed,66 the violation being punished by removal from office or immediate dismissal. The firemen brought an action against the city officials on the ground that that the provision of the city charter was unconstitutional. However, the court, fully cognizant of Letter Carriers and Broadrick, took the position that Mancuso had since lost considerable vitality. It observed that the view that political candidacy was a fundamental interest which could be infringed upon only if less restrictive alternatives were not available, was a position which was no longer viable, since the Supreme Court (finding that the governments interest in regulating both the conduct and speech of its employees differed significantly from its interest in regulating those of the citizenry in general) had given little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of Congress, and applying a "balancing" test to determine whether limits on political activity by public employees substantially served government interests which were "important" enough to outweigh the employees First Amendment rights.67 It must be noted that the Court of Appeals ruled in this manner even though the election in Magill was characterized as nonpartisan, as it was reasonable for the city to fear, under the circumstances of that case, that politically active bureaucrats might use their official power to help political friends and hurt political foes. Ruled the court: The question before us is whether Pawtucket's charter provision, which bars a city employee's candidacy in even a nonpartisan city election, is constitutional. The issue compels us to extrapolate two recent Supreme Court decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers and Broadrick v. Oklahoma. Both dealt with laws barring civil servants from partisan political activity. Letter Carriers reaffirmed United Public Workers v. Mitchell, upholding the constitutionality of the Hatch Act as to federal employees. Broadrick sustained Oklahoma's "Little Hatch Act" against constitutional attack, limiting its holding to Oklahoma's construction that the Act barred only activity in partisan politics. In Mancuso v. Taft, we assumed that proscriptions of candidacy in nonpartisan elections would not be constitutional. Letter Carriers and Broadrick compel new analysis. xxxx What we are obligated to do in this case, as the district court recognized, is to apply the Courts interest balancing approach to the kind of nonpartisan election revealed in this record. We believe that the district court found more residual vigor in our opinion in Mancuso v. Taft than remains after Letter Carriers. We have particular reference to our view that political candidacy was a fundamental interest which could be trenched upon only if less restrictive alternatives were not available. While this approach may still be viable for citizens who are not government employees, the Court in Letter Carriers recognized that the government's interest in regulating both the conduct and speech of its employees differs significantly from its interest in regulating those of the citizenry in general. Not only was United Public Workers v. Mitchell "unhesitatingly" reaffirmed, but the Court gave little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of the Congress. We cannot be more precise than the Third Circuit in characterizing the Court's approach as "some sort of 'balancing' process".68 It appears that the government may place limits on campaigning by public employees if the limits substantially serve government interests that are "important" enough to outweigh the employees' First Amendment rights. x x x (italics supplied) Upholding thus the constitutionality of the law in question, the Magill court detailed the major governmental interests discussed in Letter Carriers and applied them to the Pawtucket provision as follows: In Letter Carriers[,] the first interest identified by the Court was that of an efficient government, faithful to the Congress rather than to party. The district court discounted this interest, reasoning that candidates in a local election would not likely be committed to a state or national platform. This observation undoubtedly has substance insofar as allegiance to broad policy positions is concerned. But a different kind of possible political intrusion into efficient administration could be thought to threaten municipal government: not into broad policy decisions, but into the particulars of administration favoritism in minute decisions affecting welfare, tax assessments, municipal contracts and purchasing, hiring, zoning, licensing, and inspections. Just as the Court in Letter Carriers identified a second governmental interest in the avoidance of the appearance of "political justice" as to policy, so there is an equivalent interest in avoiding the appearance of political preferment in privileges, concessions, and benefits. The appearance

(or reality) of favoritism that the charter's authors evidently feared is not exorcised by the nonpartisan character of the formal election process. Where, as here, party support is a key to successful campaigning, and party rivalry is the norm, the city might reasonably fear that politically active bureaucrats would use their official power to help political friends and hurt political foes. This is not to say that the city's interest in visibly fair and effective administration necessarily justifies a blanket prohibition of all employee campaigning; if parties are not heavily involved in a campaign, the danger of favoritism is less, for neither friend nor foe is as easily identified. A second major governmental interest identified in Letter Carriers was avoiding the danger of a powerful political machine. The Court had in mind the large and growing federal bureaucracy and its partisan potential. The district court felt this was only a minor threat since parties had no control over nominations. But in fact candidates sought party endorsements, and party endorsements proved to be highly effective both in determining who would emerge from the primary election and who would be elected in the final election. Under the prevailing customs, known party affiliation and support were highly significant factors in Pawtucket elections. The charter's authors might reasonably have feared that a politically active public work force would give the incumbent party, and the incumbent workers, an unbreakable grasp on the reins of power. In municipal elections especially, the small size of the electorate and the limited powers of local government may inhibit the growth of interest groups powerful enough to outbalance the weight of a partisan work force. Even when nonpartisan issues and candidacies are at stake, isolated government employees may seek to influence voters or their co-workers improperly; but a more real danger is that a central party structure will mass the scattered powers of government workers behind a single party platform or slate. Occasional misuse of the public trust to pursue private political ends is tolerable, especially because the political views of individual employees may balance each other out. But party discipline eliminates this diversity and tends to make abuse systematic. Instead of a handful of employees pressured into advancing their immediate superior's political ambitions, the entire government work force may be expected to turn out for many candidates in every election. In Pawtucket, where parties are a continuing presence in political campaigns, a carefully orchestrated use of city employees in support of the incumbent party's candidates is possible. The danger is scarcely lessened by the openness of Pawtucket's nominating procedure or the lack of party labels on its ballots. The third area of proper governmental interest in Letter Carriers was ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity. The district court did not address this factor, but looked only to the possibility of a civil servant using his position to influence voters, and held this to be no more of a threat than in the most nonpartisan of elections. But we think that the possibility of coercion of employees by superiors remains as strong a factor in municipal elections as it was in Letter Carriers. Once again, it is the systematic and coordinated exploitation of public servants for political ends that a legislature is most likely to see as the primary threat of employees' rights. Political oppression of public employees will be rare in an entirely nonpartisan system. Some superiors may be inclined to ride herd on the politics of their employees even in a nonpartisan context, but without party officials looking over their shoulders most supervisors will prefer to let employees go their own ways. In short, the government may constitutionally restrict its employees' participation in nominally nonpartisan elections if political parties play a large role in the campaigns. In the absence of substantial party involvement, on the other hand, the interests identified by the Letter Carriers Court lose much of their force. While the employees' First Amendment rights would normally outbalance these diminished interests, we do not suggest that they would always do so. Even when parties are absent, many employee campaigns might be thought to endanger at least one strong public interest, an interest that looms larger in the context of municipal elections than it does in the national elections considered in Letter Carriers. The city could reasonably fear the prospect of a subordinate running directly against his superior or running for a position that confers great power over his superior. An employee of a federal agency who seeks a Congressional seat poses less of a direct challenge to the command and discipline of his agency than a fireman or policeman who runs for mayor or city council. The possibilities of internal discussion, cliques, and political bargaining, should an employee gather substantial political support, are considerable. (citations omitted) The court, however, remanded the case to the district court for further proceedings in respect of the petitioners overbreadth charge. Noting that invalidating a statute for being overbroad is "not to be taken lightly, much less to be taken in the dark," the court held: The governing case is Broadrick, which introduced the doctrine of "substantial" overbreadth in a closely analogous case. Under Broadrick, when one who challenges a law has engaged in constitutionally unprotected conduct (rather than unprotected speech) and when the challenged law is aimed at unprotected conduct, "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Two major uncertainties attend the doctrine: how to distinguish speech from conduct, and how to define "substantial" overbreadth. We are spared the first inquiry by Broadrick itself. The plaintiffs in that case had solicited support for a candidate, and they were subject to discipline under a law proscribing a wide range of activities, including soliciting contributions for political candidates and becoming a candidate. The Court found that this combination required a substantial overbreadth approach. The facts of this case are so similar that we may reach the same result without worrying unduly about the sometimes opaque distinction between speech and conduct. The second difficulty is not so easily disposed of. Broadrick found no substantial overbreadth in a statute restricting partisan campaigning. Pawtucket has gone further, banning participation in nonpartisan campaigns as well. Measuring the substantiality of a statute's overbreadth apparently requires, inter alia, a rough balancing of the number of valid applications compared to the number of potentially invalid applications. Some sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable. The

question is a matter of degree; it will never be possible to say that a ratio of one invalid to nine valid applications makes a law substantially overbroad. Still, an overbreadth challenger has a duty to provide the court with some idea of the number of potentially invalid applications the statute permits. Often, simply reading the statute in the light of common experience or litigated cases will suggest a number of probable invalid applications. But this case is different. Whether the statute is overbroad depends in large part on the number of elections that are insulated from party rivalry yet closed to Pawtucket employees. For all the record shows, every one of the city, state, or federal elections in Pawtucket is actively contested by political parties. Certainly the record suggests that parties play a major role even in campaigns that often are entirely nonpartisan in other cities. School committee candidates, for example, are endorsed by the local Democratic committee. The state of the record does not permit us to find overbreadth; indeed such a step is not to be taken lightly, much less to be taken in the dark. On the other hand, the entire focus below, in the short period before the election was held, was on the constitutionality of the statute as applied. Plaintiffs may very well feel that further efforts are not justified, but they should be afforded the opportunity to demonstrate that the charter forecloses access to a significant number of offices, the candidacy for which by municipal employees would not pose the possible threats to government efficiency and integrity which Letter Carriers, as we have interpreted it, deems significant. Accordingly, we remand for consideration of plaintiffs' overbreadth claim. (italics supplied, citations omitted) Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt that Mancuso v. Taft, heavily relied upon by the ponencia, has effectively been overruled.69 As it is no longer good law, the ponencias exhortation that "[since] the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too, should follow suit" is misplaced and unwarranted.70 Accordingly, our assailed Decisions submission that the right to run for public office is "inextricably linked" with two fundamental freedoms those of expression and association lies on barren ground. American case law has in fact never recognized a fundamental right to express ones political views through candidacy,71 as to invoke a rigorous standard of review.72 Bart v. Telford73 pointedly stated that "[t]he First Amendment does not in terms confer a right to run for public office, and this court has held that it does not do so by implication either." Thus, ones interest in seeking office, by itself, is not entitled to constitutional protection.74 Moreover, one cannot bring ones action under the rubric of freedom of association, absent any allegation that, by running for an elective position, one is advancing the political ideas of a particular set of voters.75 Prescinding from these premises, it is crystal clear that the provisions challenged in the case at bar, are not violative of the equal protection clause. The deemed-resigned provisions substantially serve governmental interests (i.e., (i) efficient civil service faithful to the government and the people rather than to party; (ii) avoidance of the appearance of "political justice" as to policy; (iii) avoidance of the danger of a powerful political machine; and (iv) ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity). These are interests that are important enough to outweigh the non-fundamental right of appointive officials and employees to seek elective office.
1avv phi1

En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v. Fashing76 and Morial, et al. v. Judiciary Commission of the State of Louisiana, et al.77 to buttress his dissent. Maintaining that resign-to-run provisions are valid only when made applicable to specified officials, he explains: U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run provisions when applied to specified or particular officials, as distinguished from all others,78 under a classification that is germane to the purposes of the law. These resign-to-run legislations were not expressed in a general and sweeping provision, and thus did not violate the test of being germane to the purpose of the law, the second requisite for a valid classification. Directed, as they were, to particular officials, they were not overly encompassing as to be overbroad. (emphasis in the original) This reading is a regrettable misrepresentation of Clements and Morial. The resign-to-run provisions in these cases were upheld not because they referred to specified or particular officials (vis--vis a general class); the questioned provisions were found valid precisely because the Court deferred to legislative judgment and found that a regulation is not devoid of a rational predicate simply because it happens to be incomplete. In fact, the equal protection challenge in Clements revolved around the claim that the State of Texas failed to explain why some public officials are subject to the resign-to-run provisions, while others are not. Ruled the United States Supreme Court: Article XVI, 65, of the Texas Constitution provides that the holders of certain offices automatically resign their positions if they become candidates for any other elected office, unless the unexpired portion of the current term is one year or less. The burdens that 65 imposes on candidacy are even less substantial than those imposed by 19. The two provisions, of course, serve essentially the same state interests. The District Court found 65 deficient, however, not because of the nature or extent of the provision's restriction on candidacy, but because of the manner in which the offices are classified. According to the District Court, the classification system cannot survive equal protection scrutiny, because Texas has failed to explain sufficiently why some elected public officials are subject to 65 and why others are not. As with the case of 19, we conclude that 65 survives a challenge under the Equal Protection Clause unless appellees can show that there is no rational predicate to the classification scheme. The history behind 65 shows that it may be upheld consistent with the "one step at a time" approach that this Court has undertaken with regard to state regulation not subject to more vigorous scrutiny than that sanctioned by

the traditional principles. Section 65 was enacted in 1954 as a transitional provision applying only to the 1954 election. Section 65 extended the terms of those offices enumerated in the provision from two to four years. The provision also staggered the terms of other offices so that at least some county and local offices would be contested at each election. The automatic resignation proviso to 65 was not added until 1958. In that year, a similar automatic resignation provision was added in Art. XI, 11, which applies to officeholders in home rule cities who serve terms longer than two years. Section 11 allows home rule cities the option of extending the terms of municipal offices from two to up to four years. Thus, the automatic resignation provision in Texas is a creature of the State's electoral reforms of 1958. That the State did not go further in applying the automatic resignation provision to those officeholders whose terms were not extended by 11 or 65, absent an invidious purpose, is not the sort of malfunctioning of the State's lawmaking process forbidden by the Equal Protection Clause. A regulation is not devoid of a rational predicate simply because it happens to be incomplete. The Equal Protection Clause does not forbid Texas to restrict one elected officeholder's candidacy for another elected office unless and until it places similar restrictions on other officeholders. The provision's language and its history belie any notion that 65 serves the invidious purpose of denying access to the political process to identifiable classes of potential candidates. (citations omitted and italics supplied) Furthermore, it is unfortunate that the dissenters took the Morial line that "there is no blanket approval of restrictions on the right of public employees to become candidates for public office" out of context. A correct reading of that line readily shows that the Court only meant to confine its ruling to the facts of that case, as each equal protection challenge would necessarily have to involve weighing governmental interests vis--vis the specific prohibition assailed. The Court held: The interests of public employees in free expression and political association are unquestionably entitled to the protection of the first and fourteenth amendments. Nothing in today's decision should be taken to imply that public employees may be prohibited from expressing their private views on controversial topics in a manner that does not interfere with the proper performance of their public duties. In today's decision, there is no blanket approval of restrictions on the right of public employees to become candidates for public office. Nor do we approve any general restrictions on the political and civil rights of judges in particular. Our holding is necessarily narrowed by the methodology employed to reach it. A requirement that a state judge resign his office prior to becoming a candidate for non-judicial office bears a reasonably necessary relation to the achievement of the state's interest in preventing the actuality or appearance of judicial impropriety. Such a requirement offends neither the first amendment's guarantees of free expression and association nor the fourteenth amendment's guarantee of equal protection of the laws. (italics supplied) Indeed, the Morial court even quoted Broadrick and stated that: In any event, the legislature must have some leeway in determining which of its employment positions require restrictions on partisan political activities and which may be left unregulated. And a State can hardly be faulted for attempting to limit the positions upon which such restrictions are placed. (citations omitted) V. Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code Do Not Suffer from Overbreadth Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code on equal protection ground, our assailed Decision struck them down for being overbroad in two respects, viz.: (1) The assailed provisions limit the candidacy of all civil servants holding appointive posts without due regard for the type of position being held by the employee seeking an elective post and the degree of influence that may be attendant thereto;79 and (2) The assailed provisions limit the candidacy of any and all civil servants holding appointive positions without due regard for the type of office being sought, whether it be partisan or nonpartisan in character, or in the national, municipal or barangay level. Again, on second look, we have to revise our assailed Decision. i. Limitation on Candidacy Regardless of Incumbent Appointive Officials Position, Val id According to the assailed Decision, the challenged provisions of law are overly broad because they apply indiscriminately to all civil servants holding appointive posts, without due regard for the type of position being held by the employee running for elective office and the degree of influence that may be attendant thereto. Its underlying assumption appears to be that the evils sought to be prevented are extant only when the incumbent appointive official running for elective office holds an influential post.

Such a myopic view obviously fails to consider a different, yet equally plausible, threat to the government posed by the partisan potential of a large and growing bureaucracy: the danger of systematic abuse perpetuated by a "powerful political machine" that has amassed "the scattered powers of government workers" so as to give itself and its incumbent workers an "unbreakable grasp on the reins of power."80 As elucidated in our prior exposition:81 Attempts by government employees to wield influence over others or to make use of their respective positions (apparently) to promote their own candidacy may seem tolerable even innocuous particularly when viewed in isolation from other similar attempts by other government employees. Yet it would be decidedly foolhardy to discount the equally (if not more) realistic and dangerous possibility that such seemingly disjointed attempts, when taken together, constitute a veiled effort on the part of an emerging central party structure to advance its own agenda through a "carefully orchestrated use of [appointive and/or elective] officials" coming from various levels of the bureaucracy. [T]he avoidance of such a "politically active public work force" which could give an emerging political machine an "unbreakable grasp on the reins of power" is reason enough to impose a restriction on the candidacies of all appointive public officials without further distinction as to the type of positions being held by such employees or the degree of influence that may be attendant thereto. (citations omitted) ii. Limitation on Candidacy Regardless of Type of Office Sought, Valid The assailed Decision also held that the challenged provisions of law are overly broad because they are made to apply indiscriminately to all civil servants holding appointive offices, without due regard for the type of elective office being sought, whether it be partisan or nonpartisan in character, or in the national, municipal or barangay level. This erroneous ruling is premised on the assumption that "the concerns of a truly partisan office and the temptations it fosters are sufficiently different from those involved in an office removed from regular party politics [so as] to warrant distinctive treatment,"82 so that restrictions on candidacy akin to those imposed by the challenged provisions can validly apply only to situations in which the elective office sought is partisan in character. To the extent, therefore, that such restrictions are said to preclude even candidacies for nonpartisan elective offices, the challenged restrictions are to be considered as overbroad. Again, a careful study of the challenged provisions and related laws on the matter will show that the alleged overbreadth is more apparent than real. Our exposition on this issue has not been repudiated, viz.: A perusal of Resolution 8678 will immediately disclose that the rules and guidelines set forth therein refer to the filing of certificates of candidacy and nomination of official candidates of registered political parties, in connection with the May 10, 2010 National and Local Elections.83 Obviously, these rules and guidelines, including the restriction in Section 4(a) of Resolution 8678, were issued specifically for purposes of the May 10, 2010 National and Local Elections, which, it must be noted, are decidedly partisan in character. Thus, it is clear that the restriction in Section 4(a) of RA 8678 applies only to the candidacies of appointive officials vying for partisan elective posts in the May 10, 2010 National and Local Elections. On this score, the overbreadth challenge leveled against Section 4(a) is clearly unsustainable. Similarly, a considered review of Section 13 of RA 9369 and Section 66 of the Omnibus Election Code, in conjunction with other related laws on the matter, will confirm that these provisions are likewise not intended to apply to elections for nonpartisan public offices. The only elections which are relevant to the present inquiry are the elections for barangay offices, since these are the only elections in this country which involve nonpartisan public offices.84 In this regard, it is well to note that from as far back as the enactment of the Omnibus Election Code in 1985, Congress has intended that these nonpartisan barangay elections be governed by special rules, including a separate rule on deemed resignations which is found in Section 39 of the Omnibus Election Code. Said provision states: Section 39. Certificate of Candidacy. No person shall be elected punong barangay or kagawad ng sangguniang barangay unless he files a sworn certificate of candidacy in triplicate on any day from the commencement of the election period but not later than the day before the beginning of the campaign period in a form to be prescribed by the Commission. The candidate shall state the barangay office for which he is a candidate. xxxx Any elective or appointive municipal, city, provincial or national official or employee, or those in the civil or military service, including those in government-owned or-controlled corporations, shall be considered automatically resigned upon the filing of certificate of candidacy for a barangay office. Since barangay elections are governed by a separate deemed resignation rule, under the present state of law, there would be no occasion to apply the restriction on candidacy found in Section 66 of the Omnibus Election Code, and later reiterated in the proviso of Section 13 of RA 9369, to any election other than a partisan one. For this reason,

the overbreadth challenge raised against Section 66 of the Omnibus Election Code and the pertinent proviso in Section 13 of RA 9369 must also fail. 85 In any event, even if we were to assume, for the sake of argument, that Section 66 of the Omnibus Election Code and the corresponding provision in Section 13 of RA 9369 are general rules that apply also to elections for nonpartisan public offices, the overbreadth challenge would still be futile. Again, we explained: In the first place, the view that Congress is limited to controlling only partisan behavior has not received judicial imprimatur, because the general proposition of the relevant US cases on the matter is simply that the government has an interest in regulating the conduct and speech of its employees that differs significantly from those it possesses in connection with regulation of the speech of the citizenry in general.86 Moreover, in order to have a statute declared as unconstitutional or void on its face for being overly broad, particularly where, as in this case, "conduct" and not "pure speech" is involved, the overbreadth must not only be real, but substantial as well, judged in relation to the statutes plainly legitimate sweep.87 In operational terms, measuring the substantiality of a statutes overbreadth would entail, among other things, a rough balancing of the number of valid applications compared to the number of potentially invalid applications. 88In this regard, some sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable.89 The question is a matter of degree.90 Thus, assuming for the sake of argument that the partisan-nonpartisan distinction is valid and necessary such that a statute which fails to make this distinction is susceptible to an overbreadth attack, the overbreadth challenge presently mounted must demonstrate or provide this Court with some idea of the number of potentially invalid elections (i.e. the number of elections that were insulated from party rivalry but were nevertheless closed to appointive employees) that may in all probability result from the enforcement of the statute.91 The state of the record, however, does not permit us to find overbreadth. Borrowing from the words of Magill v. Lynch, indeed, such a step is not to be taken lightly, much less to be taken in the dark,92 especially since an overbreadth finding in this case would effectively prohibit the State from enforcing an otherwise valid measure against conduct that is admittedly within its power to proscribe.93 This Court would do well to proceed with tiptoe caution, particularly when it comes to the application of the overbreadth doctrine in the analysis of statutes that purportedly attempt to restrict or burden the exercise of the right to freedom of speech, for such approach is manifestly strong medicine that must be used sparingly, and only as a last resort.94 In the United States, claims of facial overbreadth have been entertained only where, in the judgment of the court, the possibility that protected speech of others may be muted and perceived grievances left to fester (due to the possible inhibitory effects of overly broad statutes) outweighs the possible harm to society in allowing some unprotected speech or conduct to go unpunished.95 Facial overbreadth has likewise not been invoked where a limiting construction could be placed on the challenged statute, and where there are readily apparent constructions that would cure, or at least substantially reduce, the alleged overbreadth of the statute.96 In the case at bar, the probable harm to society in permitting incumbent appointive officials to remain in office, even as they actively pursue elective posts, far outweighs the less likely evil of having arguably protected candidacies blocked by the possible inhibitory effect of a potentially overly broad statute.
a1f

In this light, the conceivably impermissible applications of the challenged statutes which are, at best, bold predictions cannot justify invalidating these statutes in toto and prohibiting the State from enforcing them against conduct that is, and has for more than 100 years been, unquestionably within its power and interest to proscribe.97 Instead, the more prudent approach would be to deal with these conceivably impermissible applications through case-by-case adjudication rather than through a total invalidation of the statute itself.98 Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion for Reconsideration, intervenor Drilon stated that a number of high-ranking Cabinet members had already filed their Certificates of Candidacy without relinquishing their posts.99 Several COMELEC election officers had likewise filed their Certificates of Candidacy in their respective provinces.100 Even the Secretary of Justice had filed her certificate of substitution for representative of the first district of Quezon province last December 14, 2009101 even as her position as Justice Secretary includes supervision over the City and Provincial Prosecutors,102 who, in turn, act as Vice-Chairmen of the respective Boards of Canvassers.103 The Judiciary has not been spared, for a Regional Trial Court Judge in the South has thrown his hat into the political arena. We cannot allow the tilting of our electoral playing field in their favor. For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678 and Section 13 of RA 9369, which merely reiterate Section 66 of the Omnibus Election Code, are not unconstitutionally overbroad. IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondents and the intervenors Motions for Reconsideration; REVERSE and SET ASIDE this Courts December 1, 2009 Decision; DISMISS the Petition; and ISSUE this Resolution declaring as not UNCONSTITUTIONAL (1) Section 4(a) of COMELEC Resolution No. 8678,

(2) the second proviso in the third paragraph of Section 13 of Republic Act No. 9369, and (3) Section 66 of the Omnibus Election Code. SO ORDERED.

G.R. No. 181613

November 25, 2009

ROSALINDA A. PENERA, Petitioner, vs. COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, Respondents. RESOLUTION CARPIO, J.: We grant Rosalinda A. Peneras (Penera) motion for reconsideration of this Courts Decision of 11 September 2009 (Decision). The assailed Decision dismissed Peneras petition and affirmed the Resolution dated 30 July 2008 of the COMELEC En Banc as well as the Resolution dated 24 July 2007 of the COMELEC Second Division. The Decision disqualified Penera from running for the office of Mayor in Sta. Monica, Surigao del Norte and declared that the Vice-Mayor should succeed Penera. In support of her motion for reconsideration, Penera submits the following arguments: 1. Penera was not yet a candidate at the time of the incident under Section 11 of RA 8436 as amended by Section 13 of RA 9369. 2. The petition for disqualification failed to submit convincing and substantial evidence against Penera for violation of Section 80 of the Omnibus Election Code. 3. Penera never admitted the allegations of the petition for disqualification and has consistently disputed the charge of premature campaigning. 4. The admission that Penera participated in a motorcade is not the same as admitting she engaged in premature election campaigning. Section 79(a) of the Omnibus Election Code defines a "candidate" as "any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy x x x." The second sentence, third paragraph, Section 15 of RA 8436, as amended by Section 13 of RA 9369, provides that "[a]ny person who files his certificate of candidacy within [the period for filing] shall only be considered as a candidate at the start of the campaign periodfor which he filed his certificate of candidacy." The immediately succeeding proviso in the same third paragraph states that "unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period." These two provisions determine the resolution of this case. The Decision states that "[w]hen the campaign period starts and [the person who filed his certificate of candidacy] proceeds with his/her candidacy, his/her intent turning into actuality, we can already consider his/her acts, after the filing of his/her COC and prior to the campaign period, as the promotion of his/her election as a candidate, hence, constituting premature campaigning, for which he/she may be disqualified."1 Under the Decision, a candidate may already be liable for premature campaigning after the filing of the certificate of candidacy but even before the start of the campaign period. From the filing of the certificate of candidacy, even long before the start of the campaign period, the Decision considers the partisan political acts of a person so filing a certificate of candidacy "as the promotion of his/her election as a candidate." Thus, such person can be disqualified for premature campaigning for acts done before the start of the campaign period. In short, the Decision considers a person who files a certificate of candidacy already a "candidate" even before the start of the campaign period.
lawphil

The assailed Decision is contrary to the clear intent and letter of the law. The Decision reverses Lanot v. COMELEC,2 which held that a person who files a certificate of candidacy is not a candidate until the start of the campaign period. In Lanot, this Court explained: Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a person engages in an election campaign or partisan political activity; (2) the act is designed to promote the election or defeat of a particular candidate or candidates; (3) the act is done outside the campaign period. The second element requires the existence of a "candidate." Under Section 79(a), a candidate is one who "has filed a certificate of candidacy" to an elective public office. Unless one has filed his certificate of candidacy, he is not a "candidate." The third element requires that the campaign period has not started when the election campaign or partisan political activity is committed. Assuming that all candidates to a public office file their certificates of candidacy on the last day, which under Section 75 of the Omnibus Election Code is the day before the start of the campaign period, then no one can be prosecuted

for violation of Section 80 for acts done prior to such last day. Before such last day, there is no "particular candidate or candidates" to campaign for or against. On the day immediately after the last day of filing, the campaign period starts and Section 80 ceases to apply since Section 80 covers only acts done "outside" the campaign period. Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only apply to acts done on such last day, which is before the start of the campaign period and after at least one candidate has filed his certificate of candidacy. This is perhaps the reason why those running for elective public office usually file their certificates of candidacy on the last day or close to the last day. There is no dispute that Eusebios acts of election campaigning or partisan political activities were committed outside of the campaign period. The only question is whether Eusebio, who filed his certificate of candidacy on 29 December 2003, was a "candidate" when he committed those acts before the start of the campaign period on 24 March 2004. Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of certificates of candidacy to 120 days before election day. Thus, the original deadline was moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The crucial question is: did this change in the deadline for filing the certificate of candidacy make one who filed his certificate of candidacy before 2 January 2004 immediately liable for violation of Section 80 if he engaged in election campaign or partisan political activities prior to the start of the campaign period on 24 March 2004? Section 11 of RA 8436 provides: SECTION 11. Official Ballot. The Commission shall prescribe the size and form of the official ballot which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size. A fixed space where the chairman of the Board of Election Inspectors shall affix his/her signature to authenticate the official ballot shall be provided. Both sides of the ballots may be used when necessary. For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/ manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice-president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the positions of President, Vice-President, Senators and candidates under the party-list system as well as petitions for registration and/or manifestation to participate in the party-list system shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on March 27, 1998. The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens arms of the Commission may assign watchers in the printing, storage and distribution of official ballots. To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be impossible to reproduce on a photocopying machine, and that identification marks, magnetic strips, bar codes and other technical and security markings, are provided on the ballot. The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for every registered voter with a provision of additional four (4) ballots per precinct. Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy is to give ample time for the printing of official ballots. This is clear from the following deliberations of the Bicameral Conference Committee: SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,] uniform for local and national officials? THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present periods. SENATOR GONZALES. But the moment one files a certificate of candidacy, hes already a candidate, and there are many prohibited acts on the part of candidate. THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .

SENATOR GONZALES. And you cannot say that the campaign period has not yet began (sic). THE CHAIRMAN (REP. TANJUATCO). If we dont provide that the filing of the certificate will not bring about ones being a candidate. SENATOR GONZALES. If thats a fact, the law cannot change a fact. THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the certificate of candidacy will not result in that official vacating his position, we can also provide that insofar he is concerned, election period or his being a candidate will not yet commence. Because here, the reason why we are doing an early filing is to afford enough time to prepare this machine readable ballots. So, with the manifestations from the Commission on Elections, Mr. Chairman, the House Panel will withdraw its proposal and will agree to the 120-day period provided in the Senate version. THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman. xxxx SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts which apply immediately upon being a candidate? THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to afford the Comelec enough time to print the ballots, this provision does not intend to change the campaign periods as presently, or rather election periods as presently fixed by existing law. THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition. THE CHAIRMAN (REP. TANJUATCO). Thats right. THE ACTING CHAIRMAN (SEN. FERNAN). Okay. THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict anymore because we are talking about the 120-day period before election as the last day of filing a certificate of candidacy, election period starts 120 days also. So that is election period already. But he will still not be considered as a candidate. Thus, because of the early deadline of 2 January 2004 for purposes of printing of official ballots, Eusebio filed his certificate of candidacy on 29 December 2003. Congress, however, never intended the filing of a certificate of candidacy before 2 January 2004 to make the person filing to become immediately a "candidate" for purposes other than the printing of ballots. This legislative intent prevents the immediate application of Section 80 of the Omnibus Election Code to those filing to meet the early deadline. The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law" prior to RA 8436 and that one who files to meet the early deadline "will still not be considered as a candidate."3 (Emphasis in the original) Lanot was decided on the ground that one who files a certificate of candidacy is not a candidate until the start of the campaign period. This ground was based on the deliberations of the legislators who explained the intent of the provisions of RA 8436, which laid the legal framework for an automated election system. There was no express provision in the original RA 8436 stating that one who files a certificate of candidacy is not a candidate until the start of the campaign period. When Congress amended RA 8436, Congress decided to expressly incorporate the Lanot doctrine into law, realizing that Lanot merely relied on the deliberations of Congress in holding that The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law" prior to RA 8436 and that one who files to meet the early deadline "will still not be considered as a candidate."4 (Emphasis supplied) Congress wanted to insure that no person filing a certificate of candidacy under the early deadline required by the automated election system would be disqualified or penalized for any partisan political act done before the start of the campaign period. Thus, in enacting RA 9369, Congress expressly wrote the Lanot doctrine into the second sentence, third paragraph of the amended Section 15 of RA 8436, thus: xxx For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position,

including active members of the armed forces, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy. (Boldfacing and underlining supplied) Congress elevated the Lanot doctrine into a statute by specifically inserting it as the second sentence of the third paragraph of the amended Section 15 of RA 8436, which cannot be annulled by this Court except on the sole ground of its unconstitutionality. The Decision cannot reverse Lanot without repealing this second sentence, because to reverse Lanot would mean repealing this second sentence. The assailed Decision, however, in reversing Lanot does not claim that this second sentence or any portion of Section 15 of RA 8436, as amended by RA 9369, is unconstitutional. In fact, the Decision considers the entire Section 15 good law. Thus, the Decision is self-contradictory reversing Lanot but maintaining the constitutionality of the second sentence, which embodies the Lanot doctrine. In so doing, the Decision is irreconcilably in conflict with the clear intent and letter of the second sentence, third paragraph, Section 15 of RA 8436, as amended by RA 9369. In enacting RA 9369, Congress even further clarified the first proviso in the third paragraph of Section 15 of RA 8436. The original provision in RA 8436 states x x x Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period, x x x. In RA 9369, Congress inserted the word "only" so that the first proviso now reads x x x Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period x x x. (Emphasis supplied) Thus, Congress not only reiterated but also strengthened its mandatory directive that election offenses can be committed by a candidate "only" upon the start of the campaign period. This clearly means that before the start of the campaign period, such election offenses cannot be so committed. When the applicable provisions of RA 8436, as amended by RA 9369, are read together, these provisions of law do not consider Penera a candidate for purposes other than the printing of ballots, until the start of the campaign period. There is absolutely no room for any other interpretation. We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio: x x x The definition of a "candidate" in Section 79(a) of the Omnibus Election Code should be read together with the amended Section 15 of RA 8436. A "candidate refers to any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment or coalition of parties." However, it is no longer enough to merely file a certificate of candidacy for a person to be considered a candidate because "any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy." Any person may thus file a certificate of candidacy on any day within the prescribed period for filing a certificate of candidacy yet that person shall be considered a candidate, for purposes of determining ones possible violations of election laws, only during the campaign period. Indeed, there is no "election campaign" or "partisan political activity" designed to promote the election or defeat of a particular candidate or candidates to public office simply because there is no "candidate" to speak of prior to the start of the campaign period. Therefore, despite the filing of her certificate of candidacy, the law does not consider Penera a candidate at the time of the questioned motorcade which was conducted a day before the start of the campaign period. x x x The campaign period for local officials began on 30 March 2007 and ended on 12 May 2007. Penera filed her certificate of candidacy on 29 March 2007. Penera was thus a candidate on 29 March 2009 only for purposes of printing the ballots. On 29 March 2007, the law still did not consider Penera a candidate for purposes other than the printing of ballots. Acts committed by Penera prior to 30 March 2007, the date when she became a "candidate," even if constituting election campaigning or partisan political activities, are not punishable under Section 80 of the Omnibus Election Code. Such acts are within the realm of a citizens protected freedom of expression. Acts committed by Penera within the campaign period are not covered by Section 80 as Section 80 punishes only acts outside the campaign period.5 The assailed Decision gives a specious reason in explaining away the first proviso in the third paragraph, the amended Section 15 of RA 8436 that election offenses applicable to candidates take effect only upon the start of the campaign period. The Decision states that: x x x [T]he line in Section 15 of Republic Act No. 8436, as amended, which provides that "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period," does not mean that the acts constituting premature campaigning can only be committed, for which the offender may be disqualified, during the campaign period. Contrary to the pronouncement in the dissent, nowhere in said proviso was it stated

that campaigning before the start of the campaign period is lawful, such that the offender may freely carry out the same with impunity. As previously established, a person, after filing his/her COC but prior to his/her becoming a candidate (thus, prior to the start of the campaign period), can already commit the acts described under Section 79(b) of the Omnibus Election Code as election campaign or partisan political activity, However, only after said person officially becomes a candidate, at the beginning of the campaign period, can said acts be given effect as premature campaigning under Section 80 of the Omnibus Election Code. Only after said person officially becomes a candidate, at the start of the campaign period, can his/her disqualification be sought for acts constituting premature campaigning. Obviously, it is only at the start of the campaign period, when the person officially becomes a candidate, that the undue and iniquitous advantages of his/her prior acts, constituting premature campaigning, shall accrue to his/her benefit. Compared to the other candidates who are only about to begin their election campaign, a candidate who had previously engaged in premature campaigning already enjoys an unfair headstart in promoting his/her candidacy.6 (Emphasis supplied) It is a basic principle of law that any act is lawful unless expressly declared unlawful by law. This is specially true to expression or speech, which Congress cannot outlaw except on very narrow grounds involving clear, present and imminent danger to the State. The mere fact that the law does not declare an act unlawful ipso facto means that the act is lawful. Thus, there is no need for Congress to declare in Section 15 of RA 8436, as amended by RA 9369, that political partisan activities before the start of the campaign period are lawful. It is sufficient for Congress to state that "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period." The only inescapable and logical result is that the same acts, if done before the start of the campaign period, are lawful. In laymans language, this means that a candidate is liable for an election offense only for acts done during the campaign period, not before. The law is clear as daylight any election offense that may be committed by a candidate under any election law cannot be committed before the start of the campaign period. In ruling that Penera is liable for premature campaigning for partisan political acts before the start of the campaigning, the assailed Decision ignores the clear and express provision of the law. The Decision rationalizes that a candidate who commits premature campaigning can be disqualified or prosecuted only after the start of the campaign period. This is not what the law says. What the law says is "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period." The plain meaning of this provision is that the effective date when partisan political acts become unlawful as to a candidate is when the campaign period starts. Before the start of the campaign period, the same partisan political acts are lawful. The law does not state, as the assailed Decision asserts, that partisan political acts done by a candidate before the campaign period are unlawful, but may be prosecuted only upon the start of the campaign period. Neither does the law state that partisan political acts done by a candidate before the campaign period are temporarily lawful, but becomes unlawful upon the start of the campaign period. This is clearly not the language of the law. Besides, such a law as envisioned in the Decision, which defines a criminal act and curtails freedom of expression and speech, would be void for vagueness. Congress has laid down the law a candidate is liable for election offenses only upon the start of the campaign period. This Court has no power to ignore the clear and express mandate of the law that "any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy." Neither can this Court turn a blind eye to the express and clear language of the law that "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period." The forum for examining the wisdom of the law, and enacting remedial measures, is not this Court but the Legislature. This Court has no recourse but to apply a law that is as clear, concise and express as the second sentence, and its immediately succeeding proviso, as written in the third paragraph of Section 15 of RA 8436, as amended by RA 9369. WHEREFORE, we GRANT petitioner Rosalinda A. Peneras Motion for Reconsideration. We SET ASIDE the Decision of this Court in G.R. No. 181613 promulgated on 11 September 2009, as well as the Resolutions dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division and the COMELEC En Banc, respectively, in SPA No. 07-224. Rosalinda A. Penera shall continue as Mayor of Sta. Monica, Surigao del Norte. SO ORDERED.

G.R. No. 198742

August 10, 2012

TEODORA SOBEJANA-CONDON, Petitioner, vs. COMMISSION ON ELECTIONS, LUIS M. BAUTISTA, ROBELITO V. PICAR and WILMA P. PAGADUAN,Respondents. SERENO,* PERLAS-BERNABE, JJ * DECISION REYES, J.: Failure to renounce foreign citizenship in accordance with the exact tenor of Section 5(2) of Republic Act (R.A.) No. 9225 renders a dual citizen ineligible to run for and thus hold any elective public office. The Case At bar is a special civil action for certiorari1 under Rule 64 of the Rules of Court seeking to nullify Resolution2dated September 6, 2011 of the Commission on Elections (COMELEC) en banc in EAC (AE) No. A-44-2010. The assailed resolution (a) reversed the Order3 dated November 30, 2010 of COMELEC Second Division dismissing petitioners appeal; and (b) affirmed the consolidated Decision4 dated October 22, 2010 of the Regional Trial Court (RTC), Bauang, La Union, Branch 33, declaring petitioner Teodora Sobejana-Condon (petitioner) disqualified and ineligible to her position as Vice-Mayor of Caba, La Union. The Undisputed Facts The petitioner is a natural-born Filipino citizen having been born of Filipino parents on August 8, 1944. On December 13, 1984, she became a naturalized Australian citizen owing to her marriage to a certain Kevin Thomas Condon. On December 2, 2005, she filed an application to re-acquire Philippine citizenship before the Philippine Embassy in Canberra, Australia pursuant to Section 3 of R.A. No. 9225 otherwise known as the "Citizenship Retention and ReAcquisition Act of 2003."5 The application was approved and the petitioner took her oath of allegiance to the Republic of the Philippines on December 5, 2005. On September 18, 2006, the petitioner filed an unsworn Declaration of Renunciation of Australian Citizenship before the Department of Immigration and Indigenous Affairs, Canberra, Australia, which in turn issued the Order dated September 27, 2006 certifying that she has ceased to be an Australian citizen.6 The petitioner ran for Mayor in her hometown of Caba, La Union in the 2007 elections. She lost in her bid. She again sought elective office during the May 10, 2010 elections this time for the position of Vice-Mayor. She obtained the highest numbers of votes and was proclaimed as the winning candidate. She took her oath of office on May 13, 2010. Soon thereafter, private respondents Robelito V. Picar, Wilma P. Pagaduan7 and Luis M. Bautista,8 (private respondents) all registered voters of Caba, La Union, filed separate petitions for quo warranto questioning the petitioners eligibility before the RTC. The petitions similarly sought the petitioners disqualification from holding her elective post on the ground that she is a dual citizen and that she failed to execute a "personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath" as imposed by Section 5(2) of R.A. No. 9225. The petitioner denied being a dual citizen and averred that since September 27, 2006, she ceased to be an Australian citizen. She claimed that the Declaration of Renunciation of Australian Citizenship she executed in Australia sufficiently complied with Section 5(2), R.A. No. 9225 and that her act of running for public office is a clear abandonment of her Australian citizenship. Ruling of the RTC In its consolidated Decision dated October 22, 2010, the trial court held that the petitioners failure to comply with Section 5(2) of R.A. No. 9225 rendered her ineligible to run and hold public office. As admitted by the petitioner herself during trial, the personal declaration of renunciation she filed in Australia was not under oath. The law clearly mandates that the document containing the renunciation of foreign citizenship must be sworn before any public officer authorized to administer oath. Consequently, the RTCs decision disposed as follows:

WHEREFORE, premises considered, the Court renders judgment in FAVOR of [private respondents] and AGAINST (petitioner): 1) DECLARING [petitioner] TEODORA SOBEJANA-CONDON, disqualified and ineligible to hold the office of ViceMayor of Caba, La Union; 2) NULLIFYING her proclamation as the winning candidate for Vice-Mayor of said municipality; and 3) DECLARING the position of Vice-Mayor in said municipality vacant. SO ORDERED.9 Ruling of the COMELEC The petitioner appealed to the COMELEC but the appeal was dismissed by the Second Division in its Order10dated November 30, 2010 for failure to pay the docket fees within the prescribed period. On motion for reconsideration, the appeal was reinstated by the COMELEC en banc in its Resolution11 dated September 6, 2011. In the same issuance, the substantive merits of the appeal were given due course. The COMELEC en banc concurred with the findings and conclusions of the RTC; it also granted the Motion for Execution Pending Appeal filed by the private respondents. The decretal portion of the resolution reads: WHEREFORE, premises considered the Commission RESOLVED as it hereby RESOLVES as follows: 1. To DISMISS the instant appeal for lack of merit; 2. To AFFIRM the DECISION dated 22 October 2010 of the court a quo; and 3. To GRANT the Motion for Execution filed on November 12, 2010. SO ORDERED.12 (Emphasis supplied) Hence, the present petition ascribing grave abuse of discretion to the COMELEC en banc. The Petitioners Arguments The petitioner contends that since she ceased to be an Australian citizen on September 27, 2006, she no longer held dual citizenship and was only a Filipino citizen when she filed her certificate of candidacy as early as the 2007 elections. Hence, the "personal and sworn renunciation of foreign citizenship" imposed by Section 5(2) of R.A. No. 9225 to dual citizens seeking elective office does not apply to her. She further argues that a sworn renunciation is a mere formal and not a mandatory requirement. In support thereof, she cites portions of the Journal of the House of Representatives dated June 2 to 5, 2003 containing the sponsorship speech for House Bill (H.B.) No. 4720, the precursor of R.A. No. 9225. She claims that the private respondents are estopped from questioning her eligibility since they failed to do so when she filed certificates of candidacy for the 2007 and 2010 elections. Lastly, she disputes the power of the COMELEC en banc to: (a) take cognizance of the substantive merits of her appeal instead of remanding the same to the COMELEC Second Division for the continuation of the appeal proceedings; and (b) allow the execution pending appeal of the RTCs judgment. The Issues Posed for resolution are the following issues: I) Whether the COMELEC en banc may resolve the merits of an appeal after ruling on its reinstatement; II) Whether the COMELEC en banc may order the execution of a judgment rendered by a trial court in an election case; III) Whether the private respondents are barred from questioning the qualifications of the petitioner; and IV) For purposes of determining the petitioners eligibility to run for public office, whether the "sworn renunciation of foreign citizenship" in Section 5(2) of R.A. No. 9225 is a mere pro-forma requirement. The Courts Ruling I. An appeal may be simultaneously reinstated and definitively resolved by the COMELEC en banc in a

resolution disposing of a motion for reconsideration. The power to decide motions for reconsideration in election cases is arrogated unto the COMELEC en banc by Section 3, Article IX-C of the Constitution, viz: Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. A complementary provision is present in Section 5(c), Rule 3 of the COMELEC Rules of Procedure, to wit: Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the Commission en banc except motions on interlocutory orders of the division which shall be resolved by the division which issued the order. Considering that the above cited provisos do not set any limits to the COMELEC en bancs prerogative in resolving a motion for reconsideration, there is nothing to prevent the body from directly adjudicating the substantive merits of an appeal after ruling for its reinstatement instead of remanding the same to the division that initially dismissed it. We thus see no impropriety much more grave abuse of discretion on the part of the COMELEC en banc when it proceeded to decide the substantive merits of the petitioners appeal after ruling for its reinstatement. Further, records show that, in her motion for reconsideration before the COMELEC en banc, the petitioner not only proffered arguments on the issue on docket fees but also on the issue of her eligibility. She even filed a supplemental motion for reconsideration attaching therewith supporting documents13 to her contention that she is no longer an Australian citizen. The petitioner, after obtaining an unfavorable decision, cannot be permitted to disavow the en bancs exercise of discretion on the substantial merits of her appeal when she herself invoked the same in the first place. The fact that the COMELEC en banc had remanded similar appeals to the Division that initially dismissed them cannot serve as a precedent to the disposition of the petitioners appeal. A decision or resolution of any adjudicating body can be disposed in several ways. To sustain petitioners argument would be virtually putting a straightjacket on the COMELEC en bancs adjudicatory powers. More significantly, the remand of the appeal to the COMELEC Second Division would be unnecessarily circuitous and repugnant to the rule on preferential disposition of quo warranto cases espoused in Rule 36, Section 15 of the COMELEC Rules of Procedure.14 II. The COMELEC en banc has the power to order discretionary execution of judgment. We cannot subscribe to petitioners submission that the COMELEC en banc has no power to order the issuance of a writ of execution and that such function belongs only to the court of origin. There is no reason to dispute the COMELECs authority to order discretionary execution of judgment in view of the fact that the suppletory application of the Rules of Court is expressly sanctioned by Section 1, Rule 41 of the COMELEC Rules of Procedure.15 Under Section 2, Rule 39 of the Rules of Court, execution pending appeal may be issued by an appellate court after the trial court has lost jurisdiction. In Batul v. Bayron,16 we stressed the import of the provision vis--vis election cases when we held that judgments in election cases which may be executed pending appeal includes those decided by trial courts and those rendered by the COMELEC whether in the exercise of its original or appellate jurisdiction. III. Private respondents are not estopped from questioning petitioners eligibility to hold public office. The fact that the petitioners qualifications were not questioned when she filed certificates of candidacy for 2007 and 2010 elections cannot operate as an estoppel to the petition for quo warranto before the RTC. Under the Batas Pambansa Bilang 881 (Omnibus Election Code), there are two instances where a petition questioning the qualifications of a registered candidate to run for the office for which his certificate of candidacy was filed can be raised, to wit:

(1) Before election, pursuant to Section 78 thereof which provides that: Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election; and (2) After election, pursuant to Section 253 thereof, viz: Sec. 253. Petition for quo warranto. Any voter contesting the election of any Member of the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the proclamation of the results of the election. (Emphasis ours) Hence, if a person qualified to file a petition to disqualify a certain candidate fails to file the petition within the twentyfive (25)-day period prescribed by Section 78 of the Omnibus Election Code for whatever reasons, the elections laws do not leave him completely helpless as he has another chance to raise the disqualification of the candidate by filing a petition for quo warranto within ten (10) days from the proclamation of the results of the election, as provided under Section 253 of the Omnibus Election Code.17 The above remedies were both available to the private respondents and their failure to utilize Section 78 of the Omnibus Election Code cannot serve to bar them should they opt to file, as they did so file, a quo warranto petition under Section 253. IV. Petitioner is disqualified from running for elective office for failure to renounce her Australian citizenship in accordance with Section 5(2) of R.A. No. 9225. R.A. No. 9225 allows the retention and re-acquisition of Filipino citizenship for natural-born citizens who have lost their Philippine citizenship18 by taking an oath of allegiance to the Republic, thus: Section 3. Retention of Philippine Citizenship. Any provision of law to the contrary notwithstanding, natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic: "I, _____________________, solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I imposed this obligation upon myself voluntarily without mental reservation or purpose of evasion." Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath. The oath is an abbreviated repatriation process that restores ones Filipino citizenship and all civil and political rights and obligations concomitant therewith, subject to certain conditions imposed in Section 5, viz: Sec. 5. Civil and Political Rights and Liabilities. Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: (1) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws; (2) Those seeking elective public office in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath; (3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where they took that oath;

(4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice; and (5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who: (a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or (b) are in active service as commissioned or non-commissioned officers in the armed forces of the country which they are naturalized citizens. (Emphasis ours) Under the provisions of the aforementioned law, the petitioner has validly re-acquired her Filipino citizenship when she took an Oath of Allegiance to the Republic of the Philippines on December 5, 2005. At that point, she held dual citizenship, i.e., Australian and Philippine. On September 18, 2006, or a year before she initially sought elective public office, she filed a renunciation of Australian citizenship in Canberra, Australia. Admittedly, however, the same was not under oath contrary to the exact mandate of Section 5(2) that the renunciation of foreign citizenship must be sworn before an officer authorized to administer oath. To obviate the fatal consequence of her inutile renunciation, the petitioner pleads the Court to interpret the "sworn renunciation of any and all foreign citizenship" in Section 5(2) to be a mere pro forma requirement in conformity with the intent of the Legislature. She anchors her submission on the statement made by Representative Javier during the floor deliberations on H.B. No. 4720, the precursor of R.A. No. 9225. At the outset, it bears stressing that the Courts duty to interpret the law according to its true intent is exercised only when the law is ambiguous or of doubtful meaning. The first and fundamental duty of the Court is to apply the law. As such, when the law is clear and free from any doubt, there is no occasion for construction or interpretation; there is only room for application.19 Section 5(2) of R.A. No. 9225 is one such instance. Ambiguity is a condition of admitting two or more meanings, of being understood in more than one way, or of referring to two or more things at the same time. For a statute to be considered ambiguous, it must admit of two or more possible meanings.20 The language of Section 5(2) is free from any ambiguity. In Lopez v. COMELEC,21 we declared its categorical and single meaning: a Filipino American or any dual citizen cannot run for any elective public position in the Philippines unless he or she personally swears to a renunciation of all foreign citizenship at the time of filing the certificate of candidacy. We also expounded on the form of the renunciation and held that to be valid, the renunciation must be contained in an affidavit duly executed before an officer of the law who is authorized to administer an oath stating in clear and unequivocal terms that affiant is renouncing all foreign citizenship. The same meaning was emphasized in Jacot v. Dal,22 when we held that Filipinos re-acquiring or retaining their Philippine citizenship under R.A. No. 9225 must explicitly renounce their foreign citizenship if they wish to run for elective posts in the Philippines, thus: The law categorically requires persons seeking elective public office, who either retained their Philippine citizenship or those who reacquired it, to make a personal and sworn renunciation of any and all foreign citizenship before a public officer authorized to administer an oath simultaneous with or before the filing of the certificate of candidacy. Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have been naturalized as citizens of a foreign country, but who reacquired or retained their Philippine citizenship (1) to take the oath of allegiance under Section 3 of Republic Act No. 9225, and (2) for those seeking elective public offices in the Philippines, to additionally execute a personal and sworn renunciation of any and all foreign citizenship before an authorized public officer prior or simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine elections. Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and sworn renunciation of any and all foreign citizenship) requires of the Filipinos availing themselves of the benefits under the said Act to accomplish an undertaking other than that which they have presumably complied with under Section 3 thereof (oath of allegiance to the Republic of the Philippines). This is made clear in the discussion of the Bicameral Conference Committee on Disagreeing Provisions of House Bill No. 4720 and Senate Bill No. 2130 held on 18 August 2003 (precursors of Republic Act No. 9225), where the Hon. Chairman Franklin Drilon and Hon. Representative Arthur Defensor explained to Hon. Representative Exequiel Javier that the oath of allegiance is different from the renunciation of foreign citizenship; xxxx The intent of the legislators was not only for Filipinos reacquiring or retaining their Philippine citizenship under Republic Act No. 9225 to take their oath of allegiance to the Republic of the Philippines, but also to explicitly

renounce their foreign citizenship if they wish to run for elective posts in the Philippines. To qualify as a candidate in Philippine elections, Filipinos must only have one citizenship, namely, Philippine citizenship.23 (Citation omitted and italics and underlining ours) Hence, in De Guzman v. COMELEC,24 we declared petitioner therein to be disqualified from running for the position of vice-mayor for his failure to make a personal and sworn renunciation of his American citizenship. We find no reason to depart from the mandatory nature infused by the above rulings to the phrase "sworn renunciation". The language of the provision is plain and unambiguous. It expresses a single, definite, and sensible meaning and must thus be read literally.25 The foreign citizenship must be formally rejected through an affidavit duly sworn before an officer authorized to administer oath. It is conclusively presumed to be the meaning that the Legislature has intended to convey.26 Even a resort to the Journal of the House of Representatives invoked by the petitioner leads to the same inference, viz: INTERPELLATION OF REP. JAVIER Rep. Javier initially inquired whether under the Bill, dual citizenship is only limited to natural-born Filipinos and not to naturalized Filipinos. Rep. Libanan replied in the affirmative. Rep. Javier subsequently adverted to Section 5 of the Bill which provides that natural-born Filipinos who have dual citizenship shall continue to enjoy full civil and political rights. This being the case, he sought clarification as to whether they can indeed run for public office provided that they renounce their foreign citizenship. Rep. Libanan replied in the affirmative, citing that these citizens will only have to make a personal and sworn renunciation of foreign citizenship before any authorized public officer. Rep. Javier sought further clarification on this matter, citing that while the Bill provides them with full civil and political rights as Filipino citizens, the measure also discriminates against them since they are required to make a sworn renunciation of their other foreign citizenship if and when they run for public office. He thereafter proposed to delete this particular provision. In his rejoinder, Rep. Libanan explained that this serves to erase all doubts regarding any issues that might be raised pertaining to the citizenship of any candidate. He subsequently cited the case of Afroyim vs. Rusk, wherein the United States considered a naturalized American still as an American citizen even when he cast his vote in Israel during one of its elections. Rep. Javier however pointed out that the matter of voting is different because in voting, one is not required to renounce his foreign citizenship. He pointed out that under the Bill, Filipinos who run for public office must renounce their foreign citizenship. He pointed out further that this is a contradiction in the Bill. Thereafter, Rep. Javier inquired whether Filipino citizens who had acquired foreign citizenship and are now entitled to reacquire their Filipino citizenship will be considered as natural-born citizens. As such, he likewise inquired whether they will also be considered qualified to run for the highest elective positions in the country. Rep. Libanan replied in the affirmative, citing that the only requirement is that they make a sworn renunciation of their foreign citizenship and that they comply with the residency and registration requirements as provided for in the Constitution. Whereupon, Rep. Javier noted that under the Constitution, natural-born citizens are those who are citizens at the time of birth without having to perform an act to complete or perfect his/her citizenship. Rep. Libanan agreed therewith, citing that this is the reason why the Bill seeks the repeal of CA No. 63. The repeal, he said, would help Filipino citizens who acquired foreign citizenship to retain their citizenship. With regard then to Section 5 of the Bill, he explained that the Committee had decided to include this provision because Section 18, Article XI of the Constitution provides for the accountability of public officers. In his rejoinder, Rep. Javier maintained that in this case, the sworn renunciation of a foreign citizenship will only become a pro forma requirement. On further queries of Rep. Javier, Rep. Libanan affirmed that natural-born Filipino citizens who became foreign citizens and who have reacquired their Filipino citizenship under the Bill will be considered as natural-born citizens, and therefore qualified to run for the presidency, the vice-presidency or for a seat in Congress. He also agreed with the observation of Rep. Javier that a natural-born citizen is one who is a citizen of the country at the time of birth. He also explained that the Bill will, in effect, return to a Filipino citizen who has acquired foreign citizenship, the status of being a natural-born citizen effective at the time he lost his Filipino citizenship.

As a rejoinder, Rep. Javier opined that doing so would be discriminating against naturalized Filipino citizens and Filipino citizens by election who are all disqualified to run for certain public offices. He then suggested that the Bill be amended by not considering as natural-born citizens those Filipinos who had renounced their Filipino citizenship and acquired foreign citizenship. He said that they should be considered as repatriated citizens. In reply, Rep. Libanan assured Rep. Javier that the Committee will take note of the latters comments on the matter. He however stressed that after a lengthy deliberation on the subject, the Committees on Justice, and Foreign Affairs had decided to revert back to the status of being natural-born citizens those natural-born Filipino citizens who had acquired foreign citizenship but now wished to reacquire their Filipino citizenship. Rep. Javier then explained that a Filipina who loses her Filipino citizenship by virtue of her marriage to a foreigner can regain her repatriated Filipino citizenship, upon the death of her husband, by simply taking her oath before the Department of Justice (DOJ). Rep. Javier said that he does not oppose the Bill but only wants to be fair to other Filipino citizens who are not considered natural-born. He reiterated that natural-born Filipino citizens who had renounced their citizenship by pledging allegiance to another sovereignty should not be allowed to revert back to their status of being natural-born citizens once they decide to regain their Filipino citizenship. He underscored that this will in a way allow such Filipinos to enjoy dual citizenship. On whether the Sponsors will agree to an amendment incorporating the position of Rep. Javier, Rep. Libanan stated that this will defeat the purpose of the Bill. Rep. Javier disagreed therewith, adding that natural-born Filipino citizens who acquired foreign citizenships and later decided to regain their Filipino citizenship, will be considered as repatriated citizens. Rep. Libanan cited the case of Bengzon vs. HRET wherein the Supreme Court had ruled that only naturalized Filipino citizens are not considered as natural-born citizens. In reaction, Rep. Javier clarified that only citizens by election or those whose mothers are Filipino citizens under the 1935 Constitution and who elected Filipino citizenship upon reaching the age of maturity, are not deemed as natural-born citizens. In response, Rep. Libanan maintained that in the Bengzon case, repatriation results in the recovery of ones original nationality and only naturalized citizens are not considered as natural-born citizens. On whether the Sponsors would agree to not giving back the status of being natural-born citizens to natural-born Filipino citizens who acquired foreign citizenship, Rep. Libanan remarked that the Body in plenary session will decide on the matter.27 The petitioner obviously espouses an isolated reading of Representative Javiers statement; she conveniently disregards the preceding and succeeding discussions in the records. The above-quoted excerpts of the legislative record show that Representative Javiers statement ought to be understood within the context of the issue then being discussed, that is whether former natural-born citizens who re-acquire their Filipino citizenship under the proposed law will revert to their original status as natural-born citizens and thus be qualified to run for government positions reserved only to natural-born Filipinos, i.e. President, VicePresident and Members of the Congress. It was Representative Javiers position that they should be considered as repatriated Filipinos and not as naturalborn citizens since they will have to execute a personal and sworn renunciation of foreign citizenship. Natural-born citizens are those who need not perform an act to perfect their citizenship. Representative Libanan, however, maintained that they will revert to their original status as natural-born citizens. To reconcile the renunciation imposed by Section 5(2) with the principle that natural-born citizens are those who need not perform any act to perfect their citizenship, Representative Javier suggested that the sworn renunciation of foreign citizenship be considered as a mere pro forma requirement. Petitioners argument, therefore, loses its point. The "sworn renunciation of foreign citizenship" must be deemed a formal requirement only with respect to the re-acquisition of ones status as a natural-born Filipino so as to override the effect of the principle that natural-born citizens need not perform any act to perfect their citizenship. Never was it mentioned or even alluded to that, as the petitioner wants this Court to believe, those who re-acquire their Filipino citizenship and thereafter run for public office has the option of executing an unsworn affidavit of renunciation. It is also palpable in the above records that Section 5 was intended to complement Section 18, Article XI of the Constitution on public officers primary accountability of allegiance and loyalty, which provides: Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all times and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law.

An oath is a solemn declaration, accompanied by a swearing to God or a revered person or thing, that ones statement is true or that one will be bound to a promise. The person making the oath implicitly invites punishment if the statement is untrue or the promise is broken. The legal effect of an oath is to subject the person to penalties for perjury if the testimony is false.28 Indeed, the solemn promise, and the risk of punishment attached to an oath ensures truthfulness to the prospective public officers abandonment of his adopted state and promise of absolute allegiance and loyalty to the Republic of the Philippines. To hold the oath to be a mere pro forma requirement is to say that it is only for ceremonial purposes; it would also accommodate a mere qualified or temporary allegiance from government officers when the Constitution and the legislature clearly demand otherwise. Petitioner contends that the Australian Citizenship Act of 1948, under which she is already deemed to have lost her citizenship, is entitled to judicial notice. We disagree. Foreign laws are not a matter of judicial notice. Like any other fact, they must be alleged and proven.29 To prove a foreign law, the party invoking it must present a copy thereof and comply with Sections 24 and 25 of Rule 132 of the Revised Rules of Court which reads: Sec. 24. Proof of official record. The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice- consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. (Emphasis ours) Sec. 25. What attestation of copy must state. Whenever a copy of a document or record is attested for the purpose of the evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. The Court has admitted certain exceptions to the above rules and held that the existence of a foreign law may also be established through: (1) a testimony under oath of an expert witness such as an attorney-at-law in the country where the foreign law operates wherein he quotes verbatim a section of the law and states that the same was in force at the time material to the facts at hand; and (2) likewise, in several naturalization cases, it was held by the Court that evidence of the law of a foreign country on reciprocity regarding the acquisition of citizenship, although not meeting the prescribed rule of practice, may be allowed and used as basis for favorable action, if, in the light of all the circumstances, the Court is "satisfied of the authenticity of the written proof offered." Thus, in a number of decisions, mere authentication of the Chinese Naturalization Law by the Chinese Consulate General of Manila was held to be a competent proof of that law.30 The petitioner failed to prove the Australian Citizenship Act of 1948 through any of the above methods. As uniformly observed by the RTC and COMELEC, the petitioner failed to show proof of the existence of the law during trial. Also, the letter issued by the Australian government showing that petitioner already renounced her Australian citizenship was unauthenticated hence, the courts a quo acted judiciously in disregarding the same. We are bound to arrive at a similar conclusion even if we were to admit as competent evidence the said letter in view of the photocopy of a Certificate of Authentication issued by Consular Section of the Philippine Embassy in Canberra, Australia attached to the petitioners motion for reconsideration. We have stressed in Advocates and Adherents of Social Justice for School Teachers and Allied Workers (AASJS) Member v. Datumanong31 that the framers of R.A. No. 9225 did not intend the law to concern itself with the actual status of the other citizenship. This Court as the government branch tasked to apply the enactments of the legislature must do so conformably with the wisdom of the latter sans the interference of any foreign law. If we were to read the Australian Citizen Act of 1948 into the application and operation of R.A. No. 9225, we would be applying not what our legislative department has deemed wise to require. To do so would be a brazen encroachment upon the sovereign will and power of the people of this Republic.32 The petitioners act of running for public office does not suffice to serve as an effective renunciation of her Australian citizenship. While this Court has previously declared that the filing by a person with dual citizenship of a certificate of candidacy is already considered a renunciation of foreign citizenship,33 such ruling was already adjudged superseded by the enactment of R.A. No. 9225 on August 29, 2003 which provides for the additional condition of a personal and sworn renunciation of foreign citizenship.34

The fact that petitioner won the elections can not cure the defect of her candidacy. Garnering the most number of votes does not validate the election of a disqualified candidate because the application of the constitutional and statutory provisions on disqualification is not a matter of popularity.35 In fine, R.A. No. 9225 categorically demands natural-born Filipinos who re-acquire their citizenship and seek elective office, to execute a personal and sworn renunciation of any and all foreign citizenships before an authorized public officer prior to or simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine elections.36 The rule applies to all those who have re-acquired their Filipino citizenship, like petitioner, without regard as to whether they are still dual citizens or not. It is a pre-requisite imposed for the exercise of the right to run for public office. Stated differently, it is an additional qualification for elective office specific only to Filipino citizens who re-acquire their citizenship under Section 3 of R.A. No. 9225. It is the operative act that restores their right to run for public office. The petitioner's failure to comply therewith in accordance with the exact tenor of the law, rendered ineffectual the Declaration of Renunciation of Australian Citizenship she executed on September 18, 2006. As such, she is yet to regain her political right to seek elective office. Unless she executes a sworn renunciation of her Australian citizenship, she is ineligible to run for and hold any elective office in the Philippines. WHEREFORE, in view of all the foregoing, the petition is hereby DISMISSED. The Resolution dated September 6, 2011 of the Commission on Elections en bane in EAC (AE) No. A-44-2010 is AFFIRMED in toto. SO ORDERED.

G.R. No. 199149

January 22, 2013

LIWAYWAY VINZONS-CHATO, Petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and ELMER E. PANOTES, Respondents. x-----------------------x G.R. No. 201350 ELMER E. PANOTES, Petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and LIWAYWAYVINZONS-CHATO, Respondents. DECISION PERLAS -BERNABE, J.: Before us are consolidated cases involving the use of the picture images of ballots as the equivalent of the original paper ballots for purposes of determining the true will of the electorate in the Second Legislative District of Camarines Norte in the May 10, 2010 elections, which was "the maiden run for full automation,"1 as authorized by Republic Act (R.A.) No. 93692 amending R.A. No. 8436 that called for the adoption of an automated election system in national and local elections. The Factual Antecedents Liwayway Vinzons-Chato (Chato) renewed her bid in the May 10, 2010 elections as representative of the Second Legislative District of Camarines Norte, composed of the seven (7) Municipalities of Daet, Vinzons, Basud, Mercedes, Talisay, San Vicente, and San Lorenzo, with a total of 205 clustered precincts. She lost to Elmer E. Panotes (Panotes) who was proclaimed the winner on May 12, 2010 having garnered a total of 51,707 votes as against Chato's 47,822 votes, or a plurality of 3,885 votes,3 summarized in the petition4 as follows:
1w phi1

Municipality Daet Vinzons Basud Mercedes Talisay San Vicente San Lorenzo TOTAL

No. of votes for Panotes 18,085 8,107 7,879 7,739 5,015 2,359 2,520 51,707

No. of votes for Chato 15,911 6,713 6,527 9,333 4,190 2,453 2,695 47,822

On May 24, 2010, Chato filed an electoral protest before the House of Representatives Electoral Tribunal (HRET), which was docketed as HRET Case No. 10-040, assailing the results in all the 160 clustered precincts in four (4) municipalities, namely: Daet, Vinzons, Basud and Mercedes.5 No counter-protest was interposed by Panotes. Pursuant to Rule 37 of the 2011 Rules of the HRET, Chato designated forty (40) pilot clustered precincts, equivalent to 25% of the total number of protested clustered precincts, in which revision of ballots shall be conducted. The initial revision of ballots, conducted on March 21 - 24, 2011, showed a substantial discrepancy between the votes of the parties per physical count vis-a-vis their votes per election returns in the following precincts of the Municipalities of Basud and Daet:6 Based Votes for Chato Clustered Precinct No. 6 7 Per Election Returns 166 119 Per Physical Count 183 134 Gain or -Loss 17 15 Votes for Panotes Per Election Returns 268 206 Per Physical Count 164 85 Gain or -Loss - 104 - 121

8 15 19 25 27 Daet

70 87 148 233 263

81 105 191 261 287

11 18 43 28 24

239 193 239 399 366

133 100 138 251 214

- 106 - 93 - 101 - 148 - 152

Votes for Chato Clustered Precinct No. 2 7 17 23 24 25 31 32 40 41 44 56 60 Per Election Returns 269 243 183 281 223 202 258 243 259 226 294 287 153 Per Physical Count 295 275 202 318 261 229 284 267 293 260 313 309 182 Gain or -Loss 26 32 19 37 38 27 26 24 34 34 19 22 29

Votes for Panotes Per Election Returns 354 363 269 440 341 391 407 521 373 348 404 399 252 Per Physical Count 157 2 36 334 227 343 305 511 96 54 357 320 77 Gain or -Loss - 197 - 361 - 233 - 106 - 114 - 48 - 102 - 10 - 277 - 294 - 47 - 79 - 175

On March 24, 2011, Panotes lost no time in moving7 for the suspension of the proceedings in the case, and praying that a preliminary hearing be set in order to determine first the integrity of the ballots and the ballot boxes used in the elections. He further urged that, should it be shown during such hearing that the ballots and ballot boxes were not preserved, the HRET should direct the printing of the picture images of the ballots of the questioned precincts stored in the data storage device for said precincts. The motion was prompted by certain irregularities8 in the condition of the ballot boxes subject of the revision, which Panotes described as follows: Outer condition: a. The top cover of the ballot box is loose and can be lifted, so the election documents e.g. ballots, minutes of voting, election returns can be taken out. b. In some ballot boxes, when the key was inserted into the padlock, the upper portion of the lock disconnected from its body, which means that the lock had been previously tampered with. c. In the municipalities where Petitioner (Panotes) was able to seal the ballot boxes with packing tape, this tape seal was broken/cut/sliced, which means that the ballot boxes had been opened prior to the initial revision. d. Some of the self-locking security seal was not properly attached. Inner condition: a. The contents of the ballot box e.g. ballots and the documents were in total disarray, which means that it was tampered with. b. Some of the Minutes of Voting and Election Returns were MISSING and only the ballots were found inside the ballot box.

c. The ballots were unnecessarily folded and/or crumpled in the clustered precincts where the votes of (Panotes) were substantially reduced. Consequently, in its Resolution9 No. 11-208, the HRET directed the copying of the picture image files of ballots relative to the protest, which was scheduled to commence on April 25, 2011 and everyday thereafter until completion.10 Chato, however, moved11 for the cancellation of the decryption and copying of ballot images arguing inter alia that there was no legal basis therefor and that the HRET had not issued any guidelines governing the exercise thereof. Notwithstanding, the decryption and copying proceeded as scheduled. Chato then filed an Urgent Motion to Prohibit the Use by Protestee of the Decrypted and Copied Ballot Images in the Instant Case12 reiterating the lack of legal basis for the decryption and copying of ballot images inasmuch as no preliminary hearing had been conducted showing that the integrity of the ballots and ballot boxes was not preserved. She cited Section 10(d) of the HRET Guidelines on the Revision of Ballots, which reads: (d) When it has been shown, in a preliminary hearing set by the parties or by the Tribunal, that the integrity of the ballots and ballot boxes used in the May 10, 2010 elections was not preserved, as when there is proof of tampering or substitutions, the Tribunal shall direct the printing of the picture images of the ballots of the subject precinct stored in the data storage device for the same precinct. The Tribunal shall provide a non-partisan technical person who shall conduct the necessary authentication process to ensure that the data or image stored is genuine and not a substitute. It is only upon such determination that the printed picture image can be used for the revision, (as amended per Resolution of February 10, 2011). Moreover, Chato alleged that the ballot images were taken from polluted Compact Flash (CF) cards. Atty. Anne A. Romero-Cortez (Atty. Cortez), the Camarines Norte Provincial Elections Supervisor, was said to have admitted during canvassing proceedings that the CF cards for the Municipalities of Labo, Vinzons and Basud were defective and had to be replaced. The pertinent portion of the Transcript of Stenographic Notes (TSN) taken during the canvassing proceedings for President and Vice-President held on June 2, 2010 is reproduced hereunder: REP. VINZONS-CHATO: Yes, I requested the presence of the other two members because the information that I gathered would be that there was a time log of about six hours where you would stop the canvassing, and the information that we got from our lawyers there was that there were certain cards that had no memory and had to be reconfigured from some precincts, and that, in the meantime, you stopped the canvassing and resumed after six hours. ATTY. ROMERO-CORTEZ: This is what happened. Because of the municipalities of Labo, Vinzons, and Basud, there were CF cards that had to be replaced because they were defective. REP. VINZONS-CHATO: But, that was after the voting had closed, right? The voting had closed and those cards were defective and you had to replace them. ATTY. ROMERO-CORTEZ: To my recollection, Your Honor, that was during May 10.13 Panotes, on the other hand, stressed in his Opposition14 to the foregoing motion that the decryption and copying of the ballot images was at the behest of the HRET itself, acting through Atty. Marie Grace T. Javier-Ibay, who formally requested on February 10, 2011 the copying of the picture image files of ballots and election returns in 13 election protests pending before it. Should he then decide to use the decrypted and copied ballot images, there is nothing in the HRET rules that prohibit the same. With respect to the allegation that certain defective CF cards were replaced, Panotes argued15 that it was during the election day, May 10, 2010, that the CF cards were found to be not working so they had to be re-configured. Consequently, the voting in some precincts in the Municipalities of Labo, Vinzons and Basud started late, but the voting period was extended accordingly. For this reason, the canvassing before the Provincial Board of Canvassers was halted in order to wait for the transmission of the results from the Municipal Board of Canvassers, which could not be done until each and every clustered precinct was duly accounted for. The case was subsequently set for preliminary hearing on May 27, 2011 in order to determine the integrity of the CF cards used in the questioned elections.16 In said hearing, Chato presented the following witnesses: (1) Oscar Villafuerte, Vice-Chairman of the Provincial Board of Canvassers of Camarines Norte; (2) Reynaldo Mago, a media practitioner; and (3) Angel Abria, an Information Technology (IT) expert.17 On June 8, 2011, the HRET issued the assailed Resolution18 No. 11-321 denying Chato's Urgent Motion to Prohibit the Use by Protestee of the Decrypted and Copied Ballot Images in the Instant Case on the ground that she failed to show proof that the CF cards used in the twenty (20) precincts in the Municipalities of Basud and Daet with substantial variances were not preserved or were violated. The Tribunal stressed that, since Atty. Cortez was not presented in court to clarify the matter of the alleged replacement of CF cards, it remained unclear whether the replacement was done before or after the elections, and which precincts were involved. Moreover, the testimonies of the witnesses that were actually presented were found to be irrelevant and immaterial.

Significantly, the HRET declared that, although the actual ballots used in the May 10, 2010 elections are the best evidence of the will of the voters, the picture images of the ballots are regarded as the equivalent of the original, citing Rule 4 of the Rules on Electronic Evidence, which reads: Sec. 1. Original of an electronic document. An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately. Sec. 2. Copies as equivalent of the originals. When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original. Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if: (a) a genuine question is raised as to the authenticity of the original; or (b) in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original. Aggrieved, Chato filed a Motion for Reconsideration19, which was denied in the Resolution20 No. 11-487 dated September 15, 2011. The HRET categorically held that: x x x (T)he votes determined after the revision in the 20 precincts in Basud and Daet, which yielded reversal of votes, cannot be relied upon, as they do not reflect the true will of the electorate. Hence, the Tribunal has to rely on what is reflected in the election returns and/or statement of votes by precinct the same being the best evidence of the results of the election in said precincts in lieu of the altered ballots. The Issues G.R. No. 199149 In this petition for certiorari and prohibition with prayer for a temporary restraining order and/or writ of prohibitory injunction, Chato claims that the HRET committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing Resolution No. 11-321 dated June 8, 2011 and Resolution No. 11-487 dated September 15, 2011. Her petition is anchored on the following grounds: I. THE HON. PUBLIC RESPONDENT HRET IN RESOLUTION NO. 11-321 (DATED 08 JUNE 2011) REGARDED THE PICTURE IMAGES OF THE BALLOTS AS THE EQUIVALENT OF THE ORIGINAL, AND USED THE PICTURE IMAGES OF THE BALLOTS IN ITS SUBSEQUENT RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) DESPITE THE FACT THAT UNDER REPUBLIC ACT NO. 9369 THE PICTURE IMAGES OF THE BALLOTS ARE NOT THE "OFFICIAL BALLOTS" SINCE THE AUTOMATED ELECTION SYSTEM (AES) USED DURING THE MAY 2010 ELECTIONS WAS PAPER BASED. II. THE HON. PUBLIC RESPONDENT HRET IN RESOLUTION NO. 11-321 (DATED 08 JUNE 2011) REGARDED THE PICTURE IMAGES OF THE BALLOTS AS THE EQUIVALENT OF THE ORIGINAL, AND USED THE PICTURE IMAGES OF THE BALLOTS IN ITS SUBSEQUENT RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) EVEN IF THE PICTURE IMAGES OF THE BALLOTS CANNOT BE REGARDED AS THE EQUIVALENT OF THE ORIGINAL PAPER BALLOTS UNDER THE RULES ON ELECTRONIC EVIDENCE. IN THE FIRST PLACE, THE RULES ON ELECTRONIC EVIDENCE DO NOT EVEN APPLY TO THE PICTURE IMAGES OF THE BALLOTS. III. THE HON. PUBLIC RESPONDENT HRET IN RESOLUTION NO. 11-321 (DATED 08 JUNE 2011) REGARDED THE PICTURE IMAGES OF THE BALLOTS AS THE EQUIVALENT OF THE ORIGINAL, AND USED THE PICTURE IMAGES OF THE BALLOTS IN ITS SUBSEQUENT RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) EVEN IF UNDER THE ELECTRONIC COMMERCE ACT OF 2000, THE PICTURE IMAGES OF THE PAPER BALLOTS ARE NOT THE EQUIVALENT OF THE ORIGINAL PAPER BALLOTS. IV.

THE HON. PUBLIC RESPONDENT HRET IN RESOLUTION NO. 11-321 (DATED 08 JUNE 2011) REGARDED THE PICTURE IMAGES OF THE BALLOTS AS THE EQUIVALENT OF THE ORIGINAL, AND USED THE PICTURE IMAGES OF THE BALLOTS IN ITS SUBSEQUENT RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) EVEN IF PETITIONER HAS SHOWN BY SUBSTANTIAL EVIDENCE THAT THE CF CARDS USED IN THE MAY 2010 ELECTIONS WERE NOT PRESERVED OR WERE VIOLATED. V. THE HON. PUBLIC RESPONDENT HRET IN RESOLUTION NO. 11-321 (DATED 08 JUNE 2011) REGARDED THE PICTURE IMAGES OF THE BALLOTS AS THE EQUIVALENT OF THE ORIGINAL, AND USED THE PICTURE IMAGES OF THE BALLOTS IN ITS SUBSEQUENT RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) EVEN IF THERE IS NO LEGAL BASIS FOR THE HONORABLE TRIBUNAL TO CONSIDER THE PICTURE IMAGE OF THE BALLOTS AS EVIDENCE, SINCE SUCH PICTURE IMAGES ARE NOT EVEN RECOGNIZED AND THEIR APPRECIATION ARE NOT PROVIDED FOR, UNDER THE OMNIBUS ELECTION CODE. VI. THE HON. PUBLIC RESPONDENT HRET ISSUED RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) DESPITE THE PENDENCY OF THE COMELEC INVESTIGATION ON THE MAIN CF CARD FOR CLUSTERED PRECINCT 44 OF THE MUNICIPALITY OF DAET. VII. THE HON. PUBLIC RESPONDENT HRET ISSUED RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) BASED ON VILLAFUERTE VS. JACOB (15 HRET REPORT 754), WHICH IS ONLY AN HRET CASE WHICH HAS NO PRECEDENTIAL VALUE. VIII. THE HON. PUBLIC RESPONDENT HRET ISSUED RESOLUTION NO. 11-321 (DATED 08 JUNE 2011) AND RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) IN CONTRAVENTION OF CASE LAW THAT THERE SHOULD BE A FULL BLOWN TRIAL CONCERNING THE INTEGRITY OF THE BALLOTS.21 G.R. No. 201350 After the initial revision of the pilot protested clustered precincts, Chato moved,22 as early as March 24, 2011, for the revision of ballots in all of the protested clustered precincts arguing that the results of the revision of twenty-five percent (25%) of said precincts indicate a reasonable recovery of votes in her favor. On May 12, 2011, she filed a second motion23 reiterating her prayer for the continuance of the revision. The HRET denied the motion "until the Tribunal shall have determined the merit or legitimacy of the protest, relative to the revised forty (40) pilot protested clustered precincts."24 For the same reason, the HRET denied two (2) other similar motions25 filed by Chato. However, on March 22, 2012, the HRET issued the assailed Resolution26 No. 12-079 directing the continuation of the revision of ballots in the remaining seventy-five percent (75%) protested clustered precincts, or a total of 120 precincts. Expectedly, Panotes moved27 for reconsideration of Resolution No. 12-079, which was denied in the Order28 dated April 10, 2012 for lack of merit. The HRET further warned that any attempt on the part of the revisors to delay the revision proceedings or to destroy the integrity of the ballots and other election documents involved, including but not limited to, marking or tearing of ballots shall be sufficient ground(s) for immediate disqualification. Panotes is now before Us via the instant petition for certiorari and prohibition alleging grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the HRET in issuing Resolution No. 12-079 and Order dated April 10, 2012 considering that 1.THE HONORABLE TRIBUNAL ALREADY CATEGORICALLY RULED IN ITS OWN RESOLUTION NO. 11-487 THAT THE VOTES DETERMINED IN THE REVISION CANNOT BE RELIED UPON SINCE THEY ARE THE PRODUCT OF ALTERED BALLOTS; 2.THE ISSUES RESOLVED IN RESOLUTION NO. 11-487 DATED SEPTEMBER 8, 2011 AND THOSE IN RESOLUTION NO. 12-079 DATED MARCH 22, 2012 ARE INTERRELATED; 3.PURSUANT TO THE RULING OF THIS MOST HONORABLE COURT IN THE CASE OF VARIAS VS. COMELEC (G.R. NO. 189078 FEBRUARY 11, 2010), THE RESULTS OF THE REVISION OF QUESTIONABLE BALLOTS CANNOT PREVAIL OVER ELECTION RETURNS; 4.THE PICTURE IMAGE OF THE BALLOTS MAY BE USED AS PROOF OF THE INTEGRITY OF THE PAPER BALLOTS;

5.RESOLUTION NO. 12-079 HAS NO LEGAL AND FACTUAL BASES TO STAND ON BECAUSE PRIVATE RESPONDENT FAILED TO ESTABLISH THE MERIT OR LEGITIMARY [sic] OF HER PROTEST CONSIDERING THAT SHE FAILED TO MAKE A REASONABLE RECOVERY OR MUCH LESS, ANY RECOVERY AT ALL; 6.RESOLUTION NO. 12-079 IS CONTRADICTORY TO THE FINDINGS OF THE PUBLIC RESPONDENT HRET IN ITS RESOLUTION NO. 11-487; 7.THE PENDENCY OF THE PETITION FOR CERTIORARI FILED BY PRIVATE RESPONDENT BEFORE THE SUPREME COURT IS A PRELIMINARY MATTER THAT MUST BE RESOLVED FIRST BEFORE THE HONORABLE TRIBUNAL MAY ORDER THE REVISION OF THE REMAINING 75% OF THE PROTESTED PRECINCTS; 8.THE RELIABILITY OF THE COMPACT FLASH CARDS HAS NOT BEEN SHOWN TO BE QUESTIONABLE; 9.THE RESULT OF THE RECOUNT CANNOT BE USED TO OVERTURN THE RESULTS AS REFLECTED IN THE ELECTION RETURNS BECAUSE THE BALLOTS IN EP CASE NO. 10-040 HAVE BEEN TAMPERED.29 The Ruling of the Court "It is hornbook principle that our jurisdiction to review decisions and orders of electoral tribunals is exercised only upon showing of grave abuse of discretion committed by the tribunal;" otherwise, we shall not interfere with the electoral tribunals exercise of its discretion or jurisdiction. "Grave abuse of discretion has been defined as the capricious and whimsical exercise of judgment, or the exercise of power in an arbitrary manner, where the abuse is so patent and gross as to amount to an evasion of positive duty."30 The acts complained of in these cases pertain to the HRETs exercise of its discretion, an exercise which we find to be well within the bounds of its authority and, therefore, beyond our power to restrict or curtail. G.R. No. 199149 Chato assails in this petition the following issuances of the HRET: (1) Resolution No. 11-321 dated June 8, 2011 denying her Urgent Motion to Prohibit the Use by Protestee of the Decrypted and Copied Ballot Images in the Instant Case; and (2) Resolution No. 11-487 dated September 15, 2011 denying her Motion for Reconsideration of Resolution No. 11-321. The crucial issue posed by Chato is whether or not the picture images of the ballots may be considered as the "official ballots" or the equivalent of the original paper ballots which the voters filled out. She maintains that, since the automated election system (AES) used during the May 10, 2010 elections was paper-based,31 the "official ballot" is only the paper ballot that was printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas pursuant to Section 15 of R.A. No. 8436, as amended by R.A. No. 9369, which reads in part as follows: Sec.15. Official Ballot. x x x xxxx With respect to a paper-based election system, the official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contact the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizen's arms of the Commission shall assign watchers in the printing, storage and distribution of official ballots. xxxx Section 2 (3) of R.A. No. 9369 defines "official ballot" where AES is utilized as the "paper ballot, whether printed or generated by the technology applied, that faithfully captures or represents the votes cast by a voter recorded or to be recorded in electronic form." An automated election system, or AES, is a system using appropriate technology which has been demonstrated in the voting, counting, consolidating, canvassing, and transmission of election result, and other electoral process.32There are two types of AES identified under R.A. No. 9369: (1) paper-based election system; and (2) direct recording electronic election system. A paper-based election system, such as the one adopted during the May 10, 2010 elections, is the type of AES that "use paper ballots, records and counts votes, tabulates, consolidates/canvasses and transmits electronically the results of the vote count."33 On the other hand, direct recording electronic election system "uses electronic ballots, records, votes by means of a ballot display provided

with mechanical or electro-optical component that can be activated by the voter, processes data by means of computer programs, record voting data and ballot images, and transmits voting results electronically."34 As earlier stated, the May 10, 2010 elections used a paper-based technology that allowed voters to fill out an official paper ballot by shading the oval opposite the names of their chosen candidates. Each voter was then required to personally feed his ballot into the Precinct Count Optical Scan (PCOS) machine which scanned both sides of the ballots simultaneously,35 meaning, in just one pass.36 As established during the required demo tests, the system captured the images of the ballots in encrypted format which, when decrypted for verification, were found to be digitized representations of the ballots cast.37 We agree, therefore, with both the HRET and Panotes that the picture images of the ballots, as scanned and recorded by the PCOS, are likewise "official ballots" that faithfully captures in electronic form the votes cast by the voter, as defined by Section 2 (3) of R.A. No. 9369. As such, the printouts thereof are the functional equivalent of the paper ballots filled out by the voters and, thus, may be used for purposes of revision of votes in an electoral protest. It bears stressing that the digital images of the ballots captured by the PCOS machine are stored in an encrypted format in the CF cards.38 "Encryption is the process of encoding messages (or information) in such a way that eavesdroppers or hackers cannot read it, but that authorized parties can. In an encryption scheme, the message or information (referred to as plaintext) is encrypted using an encryption algorithm, turning it into an unreadable ciphertext. This is usually done with the use of an encryption key, which specifies how the message is to be encoded. Any adversary that can see the ciphertext, should not be able to determine anything about the original message. An authorized party, however, is able to decode the ciphertext using a decryption algorithm, that usually requires a secret decryption key, that adversaries do not have access to."39 Despite this security feature, however, the possibility of tampering or substitution of the CF cards did not escape the HRET, which provided in its Guidelines on the Revision of Ballots that: Sec. 11. Printing of the picture images of the ballots in lieu of photocopying. Unless it has been shown, in a preliminary hearing set by the parties or motu propio, that the integrity of any of the Compact Flash (CF) Cards used in the May 10, 2010 elections was not preserved or the same was violated, as when there is proof of tampering or substitution, the Tribunal, in lieu of photocopying of ballots upon any motion of any of the parties, shall direct the printing of the picture image of the ballots of the subject precinct stored in the data storage device for the same precinct. The Tribunal shall provide a non-partisan technical person who shall conduct the necessary authentication process to ensure that the data or image stored is genuine and not a substitute. Accordingly, the HRET set the instant case for preliminary hearing on May 27, 2011, and directed Chato, the protestant, to present testimonial and/or documentary evidence to show proof that the integrity of the CF cards used in the May 10, 2010 elections was not preserved or was violated.40 However, in the assailed Resolution No. 11-321, the HRET found Chato's evidence insufficient. The testimonies of the witnesses she presented were declared irrelevant and immaterial as they did not refer to the CF cards used in the 20 precincts in the Municipalities of Basud and Daet with substantial variances. Pertinent portions of the transcripts of stenographic notes during the May 27, 2011 preliminary hearing are quoted hereunder:41 REYNANTE B. MAGO: Q: Do you have any knowledge regarding the municipalities of Basud and Daet? A: Wala po kasi hindi naman yung ang aking bet [sic, should have been "beat", a journalistic jargon for the reporter's official place of assignment] Q: Wala kang nalalaman regarding the municipalities of Basud and Daet? A: Wala po. Q: Are you sure? A: Sure na sure po kasi hindi ko naman po yun bet [sic] noong mga panahon na yun. Wala po akong direct na knowledge o participation regarding that during the time of election period. PROVINCIAL PROSECUTOR OSCAR J. VILAFUERTE: Q: Before proceeding with your testimony, I would ask if you have any knowledge about the election regarding the municipalities of Basud and Daet? A: Well, as the Vice-Chairman of the Provincial Board of Canvassers, Your Honor, in the last May 10, 2010 elections, yes.

Q: Regarding the last CF cards? A: No. We are just limited to the reception of the election results. Q: So, with regard to the CF cards in the municipalities of Basud and Daet, you do not have any knowledge at all? A: Personally, no, because it does not affect us, Your Honor. MR. ANGEL S. AVERIA, JR: Q: Will you be testifying regarding CF cards involving the municipalities of Daet and Basud? A: Not specific to those municipalities. Q: Sa Daet, wala? A: Wala. Q: Sa Basud, wala? A: Wala ho. The reports I wrote for CENPEG is on a national scale. To substitute our own judgment to the findings of the HRET will doubtless constitute an intrusion into its domain and a curtailment of its power to act of its own accord on its evaluation of the evidentiary weight42 of testimonies presented before it. Thus, for failure of Chato to discharge her burden of proving that the integrity of the questioned CF cards had not been preserved, no further protestations to the use of the picture images of the ballots as stored in the CF cards should be entertained. Moreover, after having participated and presented her evidence at the May 27, 2011 preliminary hearing, Chato cannot now be heard to complain that the proceedings therein did not amount to a full blown trial on the merits required in the case of Tolentino v. COMELEC43 for weighing the integrity of ballots. Her allegation with respect to the pendency of the COMELEC investigation on the main CF card for Clustered Precinct 44 of the Municipality of Daet, which was previously ordered by the HRET itself when the election officer submitted only the back-up CF card that did not, however, contain picture images of the ballots,44 could not in the least bit affect the resolution of this case. As correctly pointed out by the HRET, the same concerns only one (1) precinct out of the 20 precincts with substantial variances.45 At any rate, the following explanation46 proferred by the HRET should put the issue to rest, viz: x x x On November 2, 2011, John Rex C. Laudiangco of the COMELEC Law Department, filed Comelec's Compliance with Manifestation and Motion to Admit the Attached Fact-Finding Investigation Report explaining the delay in the conduct of the investigation which was duly conducted on October 7, 2011, and submitting therewith a comprehensive Fact-Finding Investigation Report on the said investigation which was docketed in the Law Department as Case No. FF.INV. (LD) 11-46 entitled "In the Matter of Investigation on What Happened to the Main CF (Compact Flash) card for Clustered Precinct No. 44 for the Municipality of Daet, Camarines Norte." In sum, the investigation revealed that the main CF Card for CP No. 44 of the Municipality of Daet could possibly be located inside the ballot box of the Municipal Board of Canvassers (MBOC) of Daet, Camarines Norte (serial no. CE-07-166991), after having been allegedly submitted in an improvised envelope, by the Board of Election Inspectors (BEI) of said CP 44 to the MBOC. It was, therefore, recommended that said ballot box be opened to retrieve the said CF card. Accordingly, in her January 6, 2012 letter to public respondent, Atty. Anne A. Romero-Cortez submitted certain documents relative to the opening of the ballot box of the MBOC of Daet, Camarines Norte (serial no. CE-07166991) so the main CF Card for CP 44 of Daet may be retrieved and its custody turned over to the Election Records and Statistics Department (ERSD), COMELEC. Likewise, in her January 6, 2012 letter to public respondent, ERSD Director Ester L. Villaflor-Roxas requested that a representative from public respondent be present on the day to witness the verification and backing-up of the contents of the main CF card for CP No. 44 of Daet, Camarines Norte. Verily, the case of the alleged missing CF Card for Clustered Precinct No. 44 is no mystery at all. G.R. No. 201350 In the main, Panotes ascribes grave abuse of discretion on the part of the HRET in ordering the continuation of the revision of ballots in the remaining 75% of the protested clustered precincts despite having previously ruled that the

votes determined after the revision in the 20 precincts in the Municipalities of Basud and Daet, which yielded reversal of votes, cannot be relied upon, as they do not reflect the true will of the electorate. The Constitution mandates that the HRET "shall be the sole judge of all contests relating to the election, returns and qualifications" of its members. By employing the word "sole", the Constitution is emphatic that the jurisdiction of the HRET in the adjudication of election contests involving its members is intended to be its own full, complete and unimpaired.47 The Tribunal, thus, unequivocally asserted its exclusive control in Rule 7 of the 2011 HRET Rules, as follows: Rule 7. Exclusive Control of Functions. The Tribunal shall have exclusive control, direction, and supervision of all matters pertaining to its own functions and operation. There can be no challenge, therefore, to such exclusive control absent any clear showing, as in this case, of arbitrary and improvident use by the Tribunal of its power that constitutes a denial of due process of law, or upon a demonstration of a very clear unmitigated error, manifestly constituting such grave abuse of discretion that there has to be a remedy therefor.48 Contrary to Panotes' posturing, there existed legal and factual bases for the revision of the remaining 75% of the protested clustered precincts. Rule 37 of the 2011 HRET Rules clearly provides that, after post-revision determination of the merit or legitimacy of the protest, the Tribunal may proceed with the revision of the ballots in the remaining contested precincts, thus: Rule 37. Post-Revision Determination of the Merit or Legitimacy of Protest Prior to Revision of Counter-Protest; Pilot Precincts; Initial Revision. Any provision of these Rules to the contrary notwithstanding, as soon as the issues in any contest before the Tribunal have been joined, the Protestant, in case the protest involves more than 50% of the total number of precincts in the district, shall be required to state and designate in writing within a fixed period at most twenty five (25%) percent of the total number of precincts involved in the protest which said party deems as best exemplifying or demonstrating the electoral irregularities or fraud pleaded by him; and the revision of the ballots or the examination, verification or re-tabulation of election returns and/or reception of evidence shall begin with such pilot precincts designated. Otherwise, the revision of ballots or the examination, verification and re-tabulation of election returns and/or reception of evidence shall begin with all the protested precincts. The revision of ballots or the examination, verification and re-tabulation of election returns in the counter-protested precincts shall not be commenced until the Tribunal shall have determined through appreciation of ballots or election documents and/or reception of evidence, which reception shall not exceed ten (10) days, the merit or legitimacy of the protest, relative to the pilot protested precincts. Based on the results of such post-revision determination, the Tribunal may dismiss the protest without further proceedings, if and when no reasonable recovery was established from the pilot protested precincts, or proceed with the revision of the ballots or the examination, verification and re-tabulation of election returns in the remaining contested precincts. Panotes argues that Chato had not made a reasonable recovery in the initial revision of ballots in the 25% pilot protested clustered precincts and, as such, the HRET should have dismissed the protest in accordance with the aforequoted provision instead of ordering further the revision of the remaining 75% of the protested clustered precincts.
1wphi 1

It should be pointed out, however, that the provision in question is couched in the permissive term "may" instead of the mandatory word "shall." Therefore, it is merely directory, and the HRET is not without authority to opt to proceed with the revision of ballots in the remaining contested precincts even if there was no reasonable recovery made by the protestant in the initial revision. In the assailed Resolution49 No. 12-079, the HRET justified its action by its need "to re-examine what appears to be a peculiar design to impede the will of the electorate," and that a revision of all the protested clustered precincts will allow it "to see the whole picture of the controversy." Thus said the HRET: The evidence as presented by the parties involving the twenty-five percent (25%) pilot protested clustered precincts is still insufficient to justify an indubitable conclusion. There are still material issues that should be taken into account. The substantial increase in the number of ballots for protestant and the substantial decrease in the number of ballots for protestee after comparing the election returns with the physical counts of the ballots are prima facie findings that should not be trivialized. Also, the reliability of the compact flash cards including its admissibility was raised by the protestant as an area of concern which needs precise and definitive ruling by the Tribunal. A complete disavowal of the constitutional duty will be debased if the Tribunal is not going to see the whole picture of the controversy. After all, the revision proceedings will not unduly toll the precious time of the Tribunal. All of the ballot boxes involved in this protest are already in the custody of the Tribunal and will not require sizeable manpower to revise it. At the risk of unduly encroaching on the exclusive prerogative of the HRET as the sole judge of election contests involving its members, we cannot substitute our own judgment for that of the HRET on the issues of whether the evidence presented during the initial revision could affect the officially proclaimed results and whether the continuation of the revision proceedings could lead to a determination of the true will of the electorate. 50

In any case, as pointed out by the HRET, the revision proceedings for the remaining 75% protested clustered precincts had already been conducted from May 2-9, 2012 thereby rendering the issue moot and academic. Having, thus, established the futility of Panotes' case, we need not belabor the other issues raised in this petition. WHEREFORE, the petitions are hereby DISMISSED for lack of merit. SO ORDERED.

G.R. No. 191618

November 23, 2010

ATTY. ROMULO B. MACALINTAL, Petitioner, vs. PRESIDENTIAL ELECTORAL TRIBUNAL, Respondent. DECISION NACHURA, J.: Confronting us is an undesignated petition1 filed by Atty. Romulo B. Macalintal (Atty. Macalintal), that questions the constitution of the Presidential Electoral Tribunal (PET) as an illegal and unauthorized progeny of Section 4,2Article VII of the Constitution: The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose. While petitioner concedes that the Supreme Court is "authorized to promulgate its rules for the purpose," he chafes at the creation of a purportedly "separate tribunal" complemented by a budget allocation, a seal, a set of personnel and confidential employees, to effect the constitutional mandate. Petitioners averment is supposedly supported by the provisions of the 2005 Rules of the Presidential Electoral Tribunal (2005 PET Rules),3specifically: (1) Rule 3 which provides for membership of the PET wherein the Chief Justice and the Associate Justices are designated as "Chairman and Members," respectively; (2) Rule 8(e) which authorizes the Chairman of the PET to appoint employees and confidential employees of every member thereof; (3) Rule 9 which provides for a separate "Administrative Staff of the Tribunal" with the appointment of a Clerk and a Deputy Clerk of the Tribunal who, at the discretion of the PET, may designate the Clerk of Court (en banc) as the Clerk of the Tribunal; and (4) Rule 11 which provides for a "seal" separate and distinct from the Supreme Court seal. Grudgingly, petitioner throws us a bone by acknowledging that the invoked constitutional provision does allow the "appointment of additional personnel." Further, petitioner highlights our decision in Buac v. COMELEC4 which peripherally declared that "contests involving the President and the Vice-President fall within the exclusive original jurisdiction of the PET, x x x in the exercise of quasi-judicial power." On this point, petitioner reiterates that the constitution of the PET, with the designation of the Members of the Court as Chairman and Members thereof, contravenes Section 12, Article VIII of the Constitution, which prohibits the designation of Members of the Supreme Court and of other courts established by law to any agency performing quasi-judicial or administrative functions. The Office of the Solicitor General (OSG), as directed in our Resolution dated April 6, 2010, filed a Comment5thereon. At the outset, the OSG points out that the petition filed by Atty. Macalintal is unspecified and without statutory basis; "the liberal approach in its preparation x x x is a violation of the well known rules of practice and pleading in this jurisdiction." In all, the OSG crystallizes the following issues for resolution of the Court: I WHETHER x x x PETITIONER HAS LOCUS STANDI TO FILE THE INSTANT PETITION. II WHETHER x x x THE CREATION OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS UNCONSTITUTIONAL FOR BEING A VIOLATION OF PARAGRAPH 7, SECTION 4 OF ARTICLE VII OF THE 1987 CONSTITUTION. III WHETHER x x x THE DESIGNATION OF MEMBERS OF THE SUPREME COURT AS MEMBERS OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS UNCONSTITUTIONAL FOR BEING A VIOLATION OF SECTION 12, ARTICLE VIII OF THE 1987 CONSTITUTION.6 In his Reply,7 petitioner maintains that:

1. He has legal standing to file the petition given his averment of transcendental importance of the issues raised therein; 2. The creation of the PET, a separate tribunal from the Supreme Court, violates Section 4, Article VII of the Constitution; and 3. The PET, being a separate tribunal, exercises quasi-judicial functions contrary to Section 12, Article VIII of the Constitution. We winnow the meanderings of petitioner into the singular issue of whether the constitution of the PET, composed of the Members of this Court, is unconstitutional, and violates Section 4, Article VII and Section 12, Article VIII of the Constitution. But first, we dispose of the procedural issue of whether petitioner has standing to file the present petition. The issue of locus standi is derived from the following requisites of a judicial inquiry: 1. There must be an actual case or controversy; 2. The question of constitutionality must be raised by the proper party; 3. The constitutional question must be raised at the earliest possible opportunity; and 4. The decision of the constitutional question must be necessary to the determination of the case itself.8 On more than one occasion we have characterized a proper party as one who has sustained or is in immediate danger of sustaining an injury as a result of the act complained of.9 The dust has long settled on the test laid down in Baker v. Carr:10 "whether the party has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult questions."11 Until and unless such actual or threatened injury is established, the complainant is not clothed with legal personality to raise the constitutional question. Our pronouncements in David v. Macapagal-Arroyo12 illuminate: The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a "public right" in assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person who is affected no differently from any other person. He could be suing as a "stranger," or in the category of a "citizen," or "taxpayer." In either case, he has to adequately show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the vindication of the public order and the securing of relief as a" citizen" or "taxpayer." xxxx However, to prevent just about any person from seeking judicial interference in any official policy or act with which he disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the United States Supreme Court laid down the more stringent "direct injury" test in Ex Parte Levitt, later reaffirmed in Tileston v. Ullman. The same Court ruled that for a private individual to invoke the judicial power to determine the validity of an executive or legislative action, he must show that he has sustained a direct injury as a result of that action, and it is not sufficient that he has a general interest common to all members of the public. This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held that the person who impugns the validity of a statute must have "a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result." The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the Senate, Manila Race Horse Trainers Association v. De la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese League of the Philippines v. Felix. However, being a mere procedural technicality, the requirement of locus standi may be waived by the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan, where the "transcendental importance" of the cases prompted the Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec, this Court resolved to pass upon the issues raised due to the "far-reaching implications" of the petition notwithstanding its categorical statement that petitioner therein had no personality to file the suit. Indeed, there is a chain of cases where this liberal policy has been observed, allowing ordinary citizens, members of Congress, and civic organizations to prosecute actions involving the constitutionality or validity of laws, regulations and rulings. xxxx

By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met: (1) cases involve constitutional issues; (2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional; (3) for voters, there must be a showing of obvious interest in the validity of the election law in question; (4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and (5) for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators. Contrary to the well-settled actual and direct injury test, petitioner has simply alleged a generalized interest in the outcome of this case, and succeeds only in muddling the issues. Paragraph 2 of the petition reads: 2. x x x Since the creation and continued operation of the PET involves the use of public funds and the issue raised herein is of transcendental importance, it is petitioners humble submission that, as a citizen, a taxpayer and a member of the BAR, he has the legal standing to file this petition. But even if his submission is valid, petitioners standing is still imperiled by the white elephant in the petition, i.e., hi s appearance as counsel for former President Gloria Macapagal-Arroyo (Macapagal-Arroyo) in the election protest filed by 2004 presidential candidate Fernando Poe, Jr. before the Presidential Electoral Tribunal,13because judicial inquiry, as mentioned above, requires that the constitutional question be raised at the earliest possible opportunity.14 Such appearance as counsel before the Tribunal, to our mind, would have been the first opportunity to challenge the constitutionality of the Tribunals constitution. Although there are recognized exceptions to this requisite, we find none in this instance. Petitioner is unmistakably estopped from assailing the jurisdiction of the PET before which tribunal he had ubiquitously appeared and had acknowledged its jurisdiction in 2004. His failure to raise a seasonable constitutional challenge at that time, coupled with his unconditional acceptance of the Tribunals authority over the case he was defending, translates to the clear absence of an indispensable requisite for the proper invocation of this Courts power of judicial review. Even on this score alone, the petition ought to be dismissed outright. Prior to petitioners appearance as counsel for then protestee Macapagal-Arroyo, we had occasion to affirm the grant of original jurisdiction to this Court as a Presidential Electoral Tribunal in the auspicious case of Tecson v. Commission on Elections.15 Thus Petitioners Tecson, et al., in G.R. No. 161434, and Velez, in G.R. No. 161634, invoke the provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the jurisdiction of the COMELEC when it took cognizance of SPA No. 04-003 and in urging the Supreme Court to instead take on the petitions they directly instituted before it. The Constitutional provision cited reads: "The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose." The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973 Constitution to designate any tribunal to be the sole judge of presidential and vice-presidential contests, has constrained this Court to declare, in Lopez vs. Roxas, as "not (being) justiciable" controversies or disputes involving contests on the elections, returns and qualifications of the President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to enact Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal to Try, Hear and Decide Protests Contesting the Election of the President-Elect and the Vice-PresidentElect of the Philippines and Providing for the Manner of Hearing the Same." Republic Act 1793 designated the Chief Justice and the Associate Justices of the Supreme Court to be the members of the tribunal. Although the subsequent adoption of the parliamentary form of government under the 1973 Constitution might have implicitly affected Republic Act No. 1793, the statutory set-up, nonetheless, would now be deemed revived under the present Section 4, paragraph 7, of the 1987 Constitution. Former Chief Justice Reynato S. Puno, in his separate opinion, was even more categorical: The Court is unanimous on the issue of jurisdiction. It has no jurisdiction on the Tecson and Valdez petitions. Petitioners cannot invoke Article VII, Section 4, par. 7 of the Constitution which provides: "The Supreme Court, sitting en banc shall be the sole judge of all contests relating to the election, returns and qualifications of the President or Vice President and may promulgate its rules for the purpose."

The word "contest" in the provision means that the jurisdiction of this Court can only be invoked after the election and proclamation of a President or Vice President. There can be no "contest" before a winner is proclaimed.16 Similarly, in her separate opinion, Justice Alicia Austria-Martinez declared: G.R. Nos. 161434 and 161634 invoke the Courts exclusive jurisdiction under the last paragraph of Section 4, Article VII of the 1987 Constitution. I agree with the majority opinion that these petitions should be dismissed outright for prematurity. The Court has no jurisdiction at this point of time to entertain said petitions. The Supreme Court, as a Presidential Electoral Tribunal (PET), the Senate Electoral Tribunal (SET) and House of Representatives Electoral Tribunal (HRET) are electoral tribunals, each specifically and exclusively clothed with jurisdiction by the Constitution to act respectively as "sole judge of all contests relating to the election, returns, and qualifications" of the President and Vice-President, Senators, and Representatives. In a litany of cases, this Court has long recognized that these electoral tribunals exercise jurisdiction over election contests only after a candidate has already been proclaimed winner in an election. Rules 14 and 15 of the Rules of the Presidential Electoral Tribunal provide that, for President or Vice-President, election protest or quo warranto may be filed after the proclamation of the winner.17 Petitioner, a prominent election lawyer who has filed several cases before this Court involving constitutional and election law issues, including, among others, the constitutionality of certain provisions of Republic Act (R.A.) No. 9189 (The Overseas Absentee Voting Act of 2003),18 cannot claim ignorance of: (1) the invocation of our jurisdiction under Section 4, Article VII of the Constitution; and (2) the unanimous holding thereon. Unquestionably, the overarching framework affirmed in Tecson v. Commission on Elections19 is that the Supreme Court has original jurisdiction to decide presidential and vice-presidential election protests while concurrently acting as an independent Electoral Tribunal. Despite the foregoing, petitioner is adamant on his contention that the provision, as worded, does not authorize the constitution of the PET. And although he concedes that the Supreme Court may promulgate its rules for this purpose, petitioner is insistent that the constitution of the PET is unconstitutional. However, petitioner avers that it allows the Court to appoint additional personnel for the purpose, notwithstanding the silence of the constitutional provision. Petitioners pastiche arguments are all hurled at the Court, hopeful that at least one might possibly stick. But these arguments fail to elucidate on the scope of the rules the Supreme Court is allowed to promulgate. Apparently, petitioners concept of this adjunct of judicial power is very restrictive. Fortunately, thanks in no part to petitioners opinion, we are guided by well-settled principles of constitutional construction. Verba legis dictates that wherever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. This Court, speaking through former Chief Justice Enrique Fernando, in J.M. Tuason & Co., Inc. v. Land Tenure Administration20 instructs: As the Constitution is not primarily a lawyers document, it being essential for the rule of law to obtain that it should ever be present in the peoples consciousness, its language as much as possible should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say. Thus these are cases where the need for construction is reduced to a minimum. However, where there is ambiguity or doubt, the words of the Constitution should be interpreted in accordance with the intent of its framers or ratio legis et anima. A doubtful provision must be examined in light of the history of the times, and the condition and circumstances surrounding the framing of the Constitution.21 In following this guideline, courts should bear in mind the object sought to be accomplished in adopting a doubtful constitutional provision, and the evils sought to be prevented or remedied.22 Consequently, the intent of the framers and the people ratifying the constitution, and not the panderings of self-indulgent men, should be given effect. Last, ut magis valeat quam pereat the Constitution is to be interpreted as a whole. We intoned thus in the landmark case of Civil Liberties Union v. Executive Secretary:23 It is a well-established rule in constitutional construction that no one provision of the Constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together. In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make the words idle and nugatory. We had earlier expounded on this rule of construction in Chiongbian v. De Leon, et al., 24 to wit:

[T]he members of the Constitutional Convention could not have dedicated a provision of our Constitution merely for the benefit of one person without considering that it could also affect others. When they adopted subsection 2, they permitted, if not willed, that said provision should function to the full extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions of that great document. On its face, the contentious constitutional provision does not specify the establishment of the PET. But neither does it preclude, much less prohibit, otherwise. It entertains divergent interpretations which, though unacceptable to petitioner, do not include his restrictive view one which really does not offer a solution. Section 4, Article VII of the Constitution, the provision under scrutiny, should be read with other related provisions of the Constitution such as the parallel provisions on the Electoral Tribunals of the Senate and the House of Representatives. Before we resort to the records of the Constitutional Commission, we discuss the framework of judicial power mapped out in the Constitution. Contrary to petitioners assertion, the Supreme Courts constitutional mandate to act as sole judge of election contests involving our countrys highest public officials, and its rule-making authority in connection therewith, is not restricted; it includes all necessary powers implicit in the exercise thereof. We recall the unprecedented and trailblazing case of Marcos v. Manglapus:25 The 1987 Constitution has fully restored the separation of powers of the three great branches of government. To recall the words of Justice Laurel in Angara v. Electoral Commission, "the Constitution has blocked but with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government." Thus, the 1987 Constitution explicitly provides that "[t]he legislative power shall be vested in the Congress of the Philippines" [Art. VI, Sec. 1], "[t]he executive power shall be vested in the President of the Philippines" [Art. VII, Sec. 1], and "[t]he judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law" [Art. VIII, Sec. 1]. These provisions not only establish a separation of powers by actual division but also confer plenary legislative, executive and judicial powers subject only to limitations provided in the Constitution. For as the Supreme Court in Ocampo v. Cabangis pointed out "a grant of the legislative power means a grant of all legislative power; and a grant of the judicial power means a grant of all the judicial power which may be exercised under the government." The Court could not have been more explicit then on the plenary grant and exercise of judicial power. Plainly, the abstraction of the Supreme Court acting as a Presidential Electoral Tribunal from the unequivocal grant of jurisdiction in the last paragraph of Section 4, Article VII of the Constitution is sound and tenable. The mirabile dictu of the grant of jurisdiction to this Court, albeit found in the Article on the executive branch of government, and the constitution of the PET, is evident in the discussions of the Constitutional Commission. On the exercise of this Courts judicial power as sole judge of presidential and vice-presidential election contests, and to promulgate its rules for this purpose, we find the proceedings in the Constitutional Commission most instructive: MR. DAVIDE. On line 25, after the words "Vice-President," I propose to add AND MAY PROMULGATE ITS RULES FOR THE PURPOSE. This refers to the Supreme Court sitting en banc. This is also to confer on the Supreme Court exclusive authority to enact the necessary rules while acting as sole judge of all contests relating to the election, returns and qualifications of the President or Vice-President. MR. REGALADO. My personal position is that the rule-making power of the Supreme Court with respect to its internal procedure is already implicit under the Article on the Judiciary; considering, however, that according to the Commissioner, the purpose of this is to indicate the sole power of the Supreme Court without intervention by the legislature in the promulgation of its rules on this particular point, I think I will personally recommend its acceptance to the Committee.26 xxxx MR. NOLLEDO. x x x. With respect to Sections 10 and 11 on page 8, I understand that the Committee has also created an Electoral Tribunal in the Senate and a Commission on Appointments which may cover membership from both Houses. But my question is: It seems to me that the committee report does not indicate which body should promulgate the rules that shall govern the Electoral Tribunal and the Commission on Appointments. Who shall then promulgate the rules of these bodies? MR. DAVIDE. The Electoral Tribunal itself will establish and promulgate its rules because it is a body distinct and independent already from the House, and so with the Commission on Appointments also. It will have the authority to promulgate its own rules.27 On another point of discussion relative to the grant of judicial power, but equally cogent, we listen to former Chief Justice Roberto Concepcion:

MR. SUAREZ. Thank you. Would the Commissioner not consider that violative of the doctrine of separation of powers? MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between two parties. This is a judicial power. MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the right to declare who will be the President of our country, which to me is a political action. MR. CONCEPCION. There are legal rights which are enforceable under the law, and these are essentially justiciable questions. MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically all the time of the Supreme Court sitting en banc would be occupied with it considering that they will be going over millions and millions of ballots or election returns, Madam President.28 Echoing the same sentiment and affirming the grant of judicial power to the Supreme Court, Justice Florenz D. Regalado29 and Fr. Joaquin Bernas30 both opined: MR. VILLACORTA. Thank you very much, Madam President. I am not sure whether Commissioner Suarez has expressed his point. On page 2, the fourth paragraph of Section 4 provides: The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns and qualifications of the President or Vice-President. May I seek clarification as to whether or not the matter of determining the outcome of the contests relating to the election returns and qualifications of the President or Vice-President is purely a political matter and, therefore, should not be left entirely to the judiciary. Will the above-quoted provision not impinge on the doctrine of separation of powers between the executive and the judicial departments of the government? MR. REGALADO. No, I really do not feel that would be a problem. This is a new provision incidentally. It was not in the 1935 Constitution nor in the 1973 Constitution. MR. VILLACORTA. That is right. MR. REGALADO. We feel that it will not be an intrusion into the separation of powers guaranteed to the judiciary because this is strictly an adversarial and judicial proceeding. MR. VILLACORTA. May I know the rationale of the Committee because this supersedes Republic Act 7950 which provides for the Presidential Electoral Tribunal? FR. BERNAS. Precisely, this is necessary. Election contests are, by their nature, judicial. Therefore, they are cognizable only by courts. If, for instance, we did not have a constitutional provision on an electoral tribunal for the Senate or an electoral tribunal for the House, normally, as composed, that cannot be given jurisdiction over contests. So, the background of this is really the case of Roxas v. Lopez. The Gentleman will remember that in that election, Lopez was declared winner. He filed a protest before the Supreme Court because there was a republic act which created the Supreme Court as the Presidential Electoral Tribunal. The question in this case was whether new powers could be given the Supreme Court by law. In effect, the conflict was actually whether there was an attempt to create two Supreme Courts and the answer of the Supreme Court was: "No, this did not involve the creation of two Supreme Courts, but precisely we are giving new jurisdiction to the Supreme Court, as it is allowed by the Constitution. Congress may allocate various jurisdictions." Before the passage of that republic act, in case there was any contest between two presidential candidates or two vice-presidential candidates, no one had jurisdiction over it. So, it became necessary to create a Presidential Electoral Tribunal. What we have done is to constitutionalize what was statutory but it is not an infringement on the separation of powers because the power being given to the Supreme Court is a judicial power.31 Unmistakable from the foregoing is that the exercise of our power to judge presidential and vice-presidential election contests, as well as the rule-making power adjunct thereto, is plenary; it is not as restrictive as petitioner would interpret it. In fact, former Chief Justice Hilario G. Davide, Jr., who proposed the insertion of the phrase, intended the Supreme Court to exercise exclusive authority to promulgate its rules of procedure for that purpose. To this, Justice Regalado forthwith assented and then emphasized that the sole power ought to be without intervention by the

legislative department. Evidently, even the legislature cannot limit the judicial power to resolve presidential and vicepresidential election contests and our rule-making power connected thereto. To foreclose all arguments of petitioner, we reiterate that the establishment of the PET simply constitutionalized what was statutory before the 1987 Constitution. The experiential context of the PET in our country cannot be denied.32 Consequently, we find it imperative to trace the historical antecedents of the PET. Article VII, Section 4, paragraph 7 of the 1987 Constitution is an innovation. The precursors of the present Constitution did not contain similar provisions and instead vested upon the legislature all phases of presidential and vice-presidential elections from the canvassing of election returns, to the proclamation of the president-elect and the vice-president elect, and even the determination, by ordinary legislation, of whether such proclamations may be contested. Unless the legislature enacted a law creating an institution that would hear election contests in the Presidential and Vice-Presidential race, a defeated candidate had no legal right to demand a recount of the votes cast for the office involved or to challenge the ineligibility of the proclaimed candidate. Effectively, presidential and vice-presidential contests were non-justiciable in the then prevailing milieu. The omission in the 1935 Constitution was intentional. It was mainly influenced by the absence of a similar provision in its pattern, the Federal Constitution of the United States. Rather, the creation of such tribunal was left to the determination of the National Assembly. The journal of the 1935 Constitutional Convention is crystal clear on this point: Delegate Saguin. For an information. It seems that this Constitution does not contain any provision with respect to the entity or body which will look into the protests for the positions of the President and Vice-President. President Recto. Neither does the American constitution contain a provision over the subject. Delegate Saguin. But then, who will decide these protests? President Recto. I suppose that the National Assembly will decide on that.33 To fill the void in the 1935 Constitution, the National Assembly enacted R.A. No. 1793, establishing an independent PET to try, hear, and decide protests contesting the election of President and Vice-President. The Chief Justice and the Associate Justices of the Supreme Court were tasked to sit as its Chairman and Members, respectively. Its composition was extended to retired Supreme Court Justices and incumbent Court of Appeals Justices who may be appointed as substitutes for ill, absent, or temporarily incapacitated regular members. The eleven-member tribunal was empowered to promulgate rules for the conduct of its proceedings. It was mandated to sit en banc in deciding presidential and vice-presidential contests and authorized to exercise powers similar to those conferred upon courts of justice, including the issuance of subpoena, taking of depositions, arrest of witnesses to compel their appearance, production of documents and other evidence, and the power to punish contemptuous acts and bearings. The tribunal was assigned a Clerk, subordinate officers, and employees necessary for the efficient performance of its functions. R.A. No. 1793 was implicitly repealed and superseded by the 1973 Constitution which replaced the bicameral legislature under the 1935 Constitution with the unicameral body of a parliamentary government. With the 1973 Constitution, a PET was rendered irrelevant, considering that the President was not directly chosen by the people but elected from among the members of the National Assembly, while the position of Vice-President was constitutionally non-existent. In 1981, several modifications were introduced to the parliamentary system. Executive power was restored to the President who was elected directly by the people. An Executive Committee was formed to assist the President in the performance of his functions and duties. Eventually, the Executive Committee was abolished and the Office of VicePresident was installed anew. These changes prompted the National Assembly to revive the PET by enacting, on December 3, 1985, Batas Pambansa Bilang (B.P. Blg.) 884, entitled "An Act Constituting an Independent Presidential Electoral Tribunal to Try, Hear and Decide Election Contests in the Office of the President and Vice-President of the Philippines, Appropriating Funds Therefor and For Other Purposes." This tribunal was composed of nine members, three of whom were the Chief Justice of the Supreme Court and two Associate Justices designated by him, while the six were divided equally between representatives of the majority and minority parties in the Batasang Pambansa. Aside from the license to wield powers akin to those of a court of justice, the PET was permitted to recommend the prosecution of persons, whether public officers or private individuals, who in its opinion had participated in any irregularity connected with the canvassing and/or accomplishing of election returns.

The independence of the tribunal was highlighted by a provision allocating a specific budget from the national treasury or Special Activities Fund for its operational expenses. It was empowered to appoint its own clerk in accordance with its rules. However, the subordinate officers were strictly employees of the judiciary or other officers of the government who were merely designated to the tribunal. After the historic People Power Revolution that ended the martial law era and installed Corazon Aquino as President, civil liberties were restored and a new constitution was formed. With R.A. No. 1793 as framework, the 1986 Constitutional Commission transformed the then statutory PET into a constitutional institution, albeit without its traditional nomenclature: FR. BERNAS. x x x. x x x. So it became necessary to create a Presidential Electoral Tribunal. What we have done is to constitutionalize what was statutory but it is not an infringement on the separation of powers because the power being given to the Supreme Court is a judicial power.34 Clearly, petitioners bete noire of the PET and the exercise of its power are unwarranted. His arguments that: (1) the Chief Justice and Associate Justices are referred to as "Chairman" and "Members," respectively; (2) the PET uses a different seal; (3) the Chairman is authorized to appoint personnel; and (4) additional compensation is allocated to the "Members," in order to bolster his claim of infirmity in the establishment of the PET, are too superficial to merit further attention by the Court. Be that as it may, we hasten to clarify the structure of the PET as a legitimate progeny of Section 4, Article VII of the Constitution, composed of members of the Supreme Court, sitting en banc. The following exchange in the 1986 Constitutional Commission should provide enlightenment: MR. SUAREZ. Thank you. Let me proceed to line 23, page 2, wherein it is provided, and I quote: The Supreme Court, sitting en banc[,] shall be the sole judge of all contests relating to the election, returns and qualifications of the President or Vice-President. Are we not giving enormous work to the Supreme Court especially when it is directed to sit en banc as the sole judge of all presidential and vice-presidential election contests? MR. SUMULONG. That question will be referred to Commissioner Concepcion. MR. CONCEPCION. This function was discharged by the Supreme Court twice and the Supreme Court was able to dispose of each case in a period of one year as provided by law. Of course, that was probably during the late 1960s and early 1970s. I do not know how the present Supreme Court would react to such circumstances, but there is also the question of who else would hear the election protests. MR. SUAREZ. We are asking this question because between lines 23 to 25, there are no rules provided for the hearings and there is not time limit or duration for the election contest to be decided by the Supreme Court. Also, we will have to consider the historical background that when R.A. 1793, which organized the Presidential Electoral Tribunal, was promulgated on June 21, 1957, at least three famous election contests were presented and two of them ended up in withdrawal by the protestants out of sheer frustration because of the delay in the resolution of the cases. I am referring to the electoral protest that was lodged by former President Carlos P. Garcia against our "kabalen" former President Diosdado Macapagal in 1961 and the vice-presidential election contest filed by the late Senator Gerardo Roxas against Vice-President Fernando Lopez in 1965. MR. CONCEPCION. I cannot answer for what the protestants had in mind. But when that protest of Senator Roxas was withdrawn, the results were already available. Senator Roxas did not want to have a decision adverse to him. The votes were being counted already, and he did not get what he expected so rather than have a decision adverse to his protest, he withdrew the case. xxxx MR. SUAREZ. I see. So the Commission would not have any objection to vesting in the Supreme Court this matter of resolving presidential and vice-presidential contests? MR. CONCEPCION. Personally, I would not have any objection. MR. SUAREZ. Thank you. Would the Commissioner not consider that violative of the doctrine of separation of powers?

MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between two parties. This is a judicial power. MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the right to declare who will be the President of our country, which to me is a political action. MR. CONCEPCION. There are legal rights which are enforceable under the law, and these are essentially justiciable questions. MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically all the time of the Supreme Court sitting en banc would be occupied with it considering that they will be going over millions and millions of ballots or election returns, Madam President. MR. CONCEPCION. The time consumed or to be consumed in this contest for President is dependent upon they key number of teams of revisors. I have no experience insofar as contests in other offices are concerned. MR. SUAREZ. Although there is a requirement here that the Supreme Court is mandated to sit en banc? MR. CONCEPCION. Yes. MR. SUAREZ. I see. MR. CONCEPCION. The steps involved in this contest are: First, the ballot boxes are opened before teams of three, generally, a representative each of the court, of the protestant and of the "protestee." It is all a questions of how many teams are organized. Of course, that can be expensive, but it would be expensive whatever court one would choose. There were times that the Supreme Court, with sometimes 50 teams at the same time working, would classify the objections, the kind of problems, and the court would only go over the objected votes on which the parties could not agree. So it is not as awesome as it would appear insofar as the Court is concerned. What is awesome is the cost of the revision of the ballots because each party would have to appoint one representative for every team, and that may take quite a big amount. MR. SUAREZ. If we draw from the Commissioners experience which he is sharing with us, what would be the reasonable period for the election contest to be decided? MR. CONCEPCION. Insofar as the Supreme Court is concerned, the Supreme Court always manages to dispose of the case in one year. MR. SUAREZ. In one year. Thank you for the clarification.35 Obvious from the foregoing is the intent to bestow independence to the Supreme Court as the PET, to undertake the Herculean task of deciding election protests involving presidential and vice-presidential candidates in accordance with the process outlined by former Chief Justice Roberto Concepcion. It was made in response to the concern aired by delegate Jose E. Suarez that the additional duty may prove too burdensome for the Supreme Court. This explicit grant of independence and of the plenary powers needed to discharge this burden justifies the budget allocation of the PET. The conferment of additional jurisdiction to the Supreme Court, with the duty characterized as an "awesome" task, includes the means necessary to carry it into effect under the doctrine of necessary implication.36 We cannot overemphasize that the abstraction of the PET from the explicit grant of power to the Supreme Court, given our abundant experience, is not unwarranted. A plain reading of Article VII, Section 4, paragraph 7, readily reveals a grant of authority to the Supreme Court sitting en banc. In the same vein, although the method by which the Supreme Court exercises this authority is not specified in the provision, the grant of power does not contain any limitation on the Supreme Courts exercise thereof. The Supreme Courts method of deciding presidential and vice-presidential election contests, through the PET, is actually a derivative of the exercise of the prerogative conferred by the aforequoted constitutional provision. Thus, the subsequent directive in the provision for the Supreme Court to "promulgate its rules for the purpose." The conferment of full authority to the Supreme Court, as a PET, is equivalent to the full authority conferred upon the electoral tribunals of the Senate and the House of Representatives, i.e., the Senate Electoral Tribunal (SET) and the House of Representatives Electoral Tribunal (HRET),37 which we have affirmed on numerous occasions.38 Particularly cogent are the discussions of the Constitutional Commission on the parallel provisions of the SET and the HRET. The discussions point to the inevitable conclusion that the different electoral tribunals, with the Supreme Court functioning as the PET, are constitutional bodies, independent of the three departments of government Executive, Legislative, and Judiciary but not separate therefrom. MR. MAAMBONG. x x x.

My questions will be very basic so we can go as fast as we can. In the case of the electoral tribunal, either of the House or of the Senate, is it correct to say that these tribunals are constitutional creations? I will distinguish these with the case of the Tanodbayan and the Sandiganbayan which are created by mandate of the Constitution but they are not constitutional creations. Is that a good distinction? xxxx MR. MAAMBONG. Could we, therefore, say that either the Senate Electoral Tribunal or the House Electoral Tribunal is a constitutional body? MR. AZCUNA. It is, Madam President. MR. MAAMBONG. If it is a constitutional body, is it then subject to constitutional restrictions? MR. AZCUNA. It would be subject to constitutional restrictions intended for that body. MR. MAAMBONG. I see. But I want to find out if the ruling in the case of Vera v. Avelino, 77 Phil. 192, will still be applicable to the present bodies we are creating since it ruled that the electoral tribunals are not separate departments of the government. Would that ruling still be valid? MR. AZCUNA. Yes, they are not separate departments because the separate departments are the legislative, the executive and the judiciary; but they are constitutional bodies.39 The view taken by Justices Adolfo S. Azcuna40 and Regalado E. Maambong41 is schooled by our holding in Lopez v. Roxas, et al.:42 Section 1 of Republic Act No. 1793, which provides that: "There shall be an independent Presidential Electoral Tribunal x x x which shall be the sole judge of all contests relating to the election, returns, and qualifications of the president-elect and the vice-president-elect of the Philippines." has the effect of giving said defeated candidate the legal right to contest judicially the election of the President-elect of Vice-President-elect and to demand a recount of the votes case for the office involved in the litigation, as well as to secure a judgment declaring that he is the one elected president or vice-president, as the case may be, and that, as such, he is entitled to assume the duties attached to said office. And by providing, further, that the Presidential Electoral Tribunal "shall be composed of the Chief Justice and the other ten Members of the Supreme Court," said legislation has conferred upon such Court an additional original jurisdiction of an exclusive character. Republic Act No. 1793 has not created a new or separate court. It has merely conferred upon the Supreme Court the functions of a Presidential Electoral Tribunal. The result of the enactment may be likened to the fact that courts of first instance perform the functions of such ordinary courts of first instance, those of court of land registration, those of probate courts, and those of courts of juvenile and domestic relations. It is, also, comparable to the situation obtaining when the municipal court of a provincial capital exercises its authority, pursuant to law, over a limited number of cases which were previously within the exclusive jurisdiction of courts of first instance. In all of these instances, the court (court of first instance or municipal court) is only one, although the functions may be distinct and, even, separate. Thus the powers of a court of first instance, in the exercise of its jurisdiction over ordinary civil cases, are broader than, as well as distinct and separate from, those of the same court acting as a court of land registration or a probate court, or as a court of juvenile and domestic relations. So too, the authority of the municipal court of a provincial capital, when acting as such municipal court, is, territorially more limited than that of the same court when hearing the aforementioned cases which are primary within the jurisdiction of courts of first instance. In other words, there is only one court, although it may perform the functions pertaining to several types of courts, each having some characteristics different from those of the others. Indeed, the Supreme Court, the Court of Appeals and courts of first instance, are vested with original jurisdiction, as well as with appellate jurisdiction, in consequence of which they are both trial courts and, appellate courts, without detracting from the fact that there is only one Supreme Court, one Court of Appeals, and one court of first instance, clothed with authority to discharge said dual functions. A court of first instance, when performing the functions of a probate court or a court of land registration, or a court of juvenile and domestic relations, although with powers less broad than those of a court of first instance, hearing ordinary actions, is not inferior to the latter, for one cannot be inferior to itself. So too, the Presidential Electoral Tribunal is not inferior to the Supreme Court, since it is the same Court although the functions peculiar to said Tribunal are more limited in scope than those of the Supreme Court in the exercise of its ordinary functions. Hence, the enactment of Republic Act No. 1793, does not entail an assumption by Congress of the power of appointment vested by the Constitution in the President. It merely connotes the imposition of additional duties upon the Members of the Supreme Court. By the same token, the PET is not a separate and distinct entity from the Supreme Court, albeit it has functions peculiar only to the Tribunal. It is obvious that the PET was constituted in implementation of Section 4, Article VII of

the Constitution, and it faithfully complies not unlawfully defies the constitutional directive. The adoption of a separate seal, as well as the change in the nomenclature of the Chief Justice and the Associate Justices into Chairman and Members of the Tribunal, respectively, was designed simply to highlight the singularity and exclusivity of the Tribunals functions as a special electoral court. As regards petitioners claim that the PET exercises quasi-judicial functions in contravention of Section 12, Article VIII of the Constitution, we point out that the issue in Buac v. COMELEC43 involved the characterization of the enforcement and administration of a law relative to the conduct of a plebiscite which falls under the jurisdiction of the Commission on Elections. However, petitioner latches on to the enumeration in Buac which declared, in an obiter, that "contests involving the President and the Vice-President fall within the exclusive original jurisdiction of the PET, also in the exercise of quasi-judicial power." The issue raised by petitioner is more imagined than real. Section 12, Article VIII of the Constitution reads: SEC. 12. The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions. The traditional grant of judicial power is found in Section 1, Article VIII of the Constitution which provides that the power "shall be vested in one Supreme Court and in such lower courts as may be established by law." Consistent with our presidential system of government, the function of "dealing with the settlement of disputes, controversies or conflicts involving rights, duties or prerogatives that are legally demandable and enforceable" 44 is apportioned to courts of justice. With the advent of the 1987 Constitution, judicial power was expanded to include "the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."45 The power was expanded, but it remained absolute. The set up embodied in the Constitution and statutes characterizes the resolution of electoral contests as essentially an exercise of judicial power.
1avvphi1

At the barangay and municipal levels, original and exclusive jurisdiction over election contests is vested in the municipal or metropolitan trial courts and the regional trial courts, respectively. At the higher levels city, provincial, and regional, as well as congressional and senatorial exclusive and original jurisdiction is lodged in the COMELEC and in the House of Representatives and Senate Electoral Tribunals, which are not, strictly and literally speaking, courts of law. Although not courts of law, they are, nonetheless, empowered to resolve election contests which involve, in essence, an exercise of judicial power, because of the explicit constitutional empowerment found in Section 2(2), Article IX-C (for the COMELEC) and Section 17, Article VI (for the Senate and House Electoral Tribunals) of the Constitution. Besides, when the COMELEC, the HRET, and the SET decide election contests, their decisions are still subject to judicial review via a petition for certiorari filed by the proper party if there is a showing that the decision was rendered with grave abuse of discretion tantamount to lack or excess of jurisdiction.46 It is also beyond cavil that when the Supreme Court, as PET, resolves a presidential or vice-presidential election contest, it performs what is essentially a judicial power. In the landmark case of Angara v. Electoral Commission,47Justice Jose P. Laurel enucleated that "it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels." In fact, Angara pointed out that "[t]he Constitution is a definition of the powers of government." And yet, at that time, the 1935 Constitution did not contain the expanded definition of judicial power found in Article VIII, Section 1, paragraph 2 of the present Constitution. With the explicit provision, the present Constitution has allocated to the Supreme Court, in conjunction with latters exercise of judicial power inherent in all courts,48 the task of deciding presidential and vice-presidential election contests, with full authority in the exercise thereof. The power wielded by PET is a derivative of the plenary judicial power allocated to courts of law, expressly provided in the Constitution. On the whole, the Constitution draws a thin, but, nevertheless, distinct line between the PET and the Supreme Court. If the logic of petitioner is to be followed, all Members of the Court, sitting in the Senate and House Electoral Tribunals would violate the constitutional proscription found in Section 12, Article VIII. Surely, the petitioner will be among the first to acknowledge that this is not so. The Constitution which, in Section 17, Article VI, explicitly provides that three Supreme Court Justices shall sit in the Senate and House Electoral Tribunals, respectively, effectively exempts the Justices-Members thereof from the prohibition in Section 12, Article VIII. In the same vein, it is the Constitution itself, in Section 4, Article VII, which exempts the Members of the Court, constituting the PET, from the same prohibition. We have previously declared that the PET is not simply an agency to which Members of the Court were designated. Once again, the PET, as intended by the framers of the Constitution, is to be an institution independent, but not separate, from the judicial department, i.e., the Supreme Court. McCulloch v. State of Maryland49 proclaimed that "[a] power without the means to use it, is a nullity." The vehicle for the exercise of this power, as intended by the Constitution and specifically mentioned by the Constitutional Commissioners during the discussions on the grant of

power to this Court, is the PET. Thus, a microscopic view, like the petitioners, should not constrict an absolute and constitutional grant of judicial power. One final note. Although this Court has no control over contrary people and naysayers, we reiterate a word of caution against the filing of baseless petitions which only clog the Courts docket. The petition in the instant case belongs to that classification. WHEREFORE, the petition is DISMISSED. Costs against petitioner. SO ORDERED.

G.R. No. 142840

May 7, 2001

ANTONIO BENGSON III, petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO C. CRUZ, respondents. CONCURRING OPINION DISSENTING OPINION KAPUNAN, J.: The citizenship of respondent Teodoro C. Cruz is at issue in this case, in view of the constitutional requirement that "no person shall be a Member of the House of Representative unless he is a natural-born citizen."1 Respondent Cruz was a natural-born citizen of the Philippines. He was born in San Clemente, Tarlac, on April 27, 1960, of Filipino parents. The fundamental law then applicable was the 1935 Constitution.2 On November 5, 1985, however, respondent Cruz enlisted in the United States Marine Corps and without the consent of the Republic of the Philippines, took an oath of allegiance to the United States. As a Consequence, he lost his Filipino citizenship for under Commonwealth Act No. 63, section 1(4), a Filipino citizen may lose his citizenship by, among other, "rendering service to or accepting commission in the armed forces of a foreign country." Said provision of law reads: SECTION 1. How citizenship may be lost. A Filipino citizen may lose his citizenship in any of the following ways and/or events: xxx (4) By rendering services to, or accepting commission in, the armed of a foreign country: Provided, That the rendering of service to, or the acceptance of such commission in, the armed forces of a foreign country, and the taking of an oath of allegiance incident thereto, with the consent of the Republic of the Philippines, shall not divest a Filipino of his Philippine citizenship if either of the following circumstances is present: (a) The Republic of the Philippines has a defensive and/or offensive pact of alliance with said foreign country; or (b) The said foreign country maintains armed forces on Philippine territory with the consent of the Republic of the Philippines: Provided, That the Filipino citizen concerned, at the time of rendering said service, or acceptance of said commission, and taking the oath of allegiance incident thereto, states that he does so only in connection with his service to said foreign country; And provided, finally, That any Filipino citizen who is rendering service to, or is commissioned in, the armed forces of a foreign country under any of the circumstances mentioned in paragraph (a) or (b), shall not be Republic of the Philippines during the period of his service to, or commission in, the armed forces of said country. Upon his discharge from the service of the said foreign country, he shall be automatically entitled to the full enjoyment of his civil and politically entitled to the full enjoyment of his civil political rights as a Filipino citizen x x x. Whatever doubt that remained regarding his loss of Philippine citizenship was erased by his naturalization as a U.S. citizen on June 5, 1990, in connection with his service in the U.S. Marine Corps. On March 17, 1994, respondent Cruz reacquired his Philippine citizenship through repatriation under Republic Act No. 2630.3 He ran for and was elected as the Representative of the Second District of Pangasinan in the May 11, 1998 elections. He won by a convincing margin of 26,671 votes over petitioner Antonio Bengson III, who was then running for reelection.
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Subsequently, petitioner filed a case for Quo Warranto Ad Cautelam with respondent House of Representatives Electoral Tribunal (HRET) claiming that respondent Cruz was not qualified to become a member of the House of Representatives since he is not a natural-born citizen as required under Article VI, section 6 of the Constitution.4 On March 2, 2000, the HRET rendered its decision5 dismissing the petition for quo warranto and declaring Cruz the duly elected Representative of the Second District of Pangasinan in the May 1998 elections. The HRET likewise denied petitioner's motion for reconsideration of the decision in its resolution dated April 27, 2000.6 Petitioner thus filed the present petition for certiorari assailing the HRET's decision on the following grounds: 1. The HRET committed serious errors and grave abuse of discretion, amounting to excess of jurisdiction, when it ruled that private respondent is a natural-born citizen of the Philippines despite the fact that he had ceased being such in view of the loss and renunciation of such citizenship on his part.

2. The HRET committed serious errors and grave abuse of discretion, amounting to excess of jurisdiction, when it considered private respondent as a citizen of the Philippines despite the fact he did not validly acquire his Philippine citizenship. 3. Assuming that private respondent's acquisition of Philippine citizenship was invalid, the HRET committed serious errors and grave abuse of discretion, amounting to excess of jurisdiction, when it dismissed the petition despite the fact that such reacquisition could not legally and constitutionally restore his natural-born status.7 The issue now before us is whether respondent Cruz, a natural-born Filipino who became an American citizen, can still be considered a natural-born Filipino upon his reacquisition of Philippine citizenship. Petitioner asserts that respondent Cruz may no longer be considered a natural-born Filipino since he lost h is Philippine citizenship when he swore allegiance to the United States in 1995, and had to reacquire the same by repatriation. He insists that Article citizens are those who are from birth with out having to perform any act to acquire or perfect such citizenship. Respondent on the other hand contends that he reacquired his status as natural-born citizen when he was repatriated since the phrase "from birth" in Article IV, Section 2 refers to the innate, inherent and inborn characteristic of being a natural-born citizen. The petition is without merit. The 1987 Constitution enumerates who are Filipino citizens as follow: (1) Those who are citizens of the Philippines at the time of the adoption of this Constitution; (2) Those whose fathers or mothers are citizens of the Philippines; (3) Those born before January 17, 1973 of Filipino mother, who elect Philippine citizenship upon reaching the age of majority, and (4) Those who are naturalized in accordance with law.8 There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization. These ways of acquiring citizenship correspond to the two kinds of citizens: the natural-born citizen, and the naturalized citizen. A person who at the time of his birth is a citizen of a particular country, is a natural-born citizen thereof.9 As defined in the same Constitution, natural-born citizens "are those citizens of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citezenship."10 On the other hand, naturalized citizens are those who have become Filipino citizens through naturalization, generally under Commonwealth Act No. 473, otherwise known as the Revised Naturalization Law, which repealed the former Naturalization Law (Act No. 2927), and by Republic Act No. 530.11 To be naturalized, an applicant has to prove that he possesses all the qualifications12 and none of the disqualification13 provided by law to become a Filipino citizen. The decision granting Philippine citizenship becomes executory only after two (2) years from its promulgation when the court is satisfied that during the intervening period, the applicant has (1) not left the Philippines; (2) has dedicated himself to a lawful calling or profession; (3) has not been convicted of any offense or violation of Government promulgated rules; or (4) committed any act prejudicial to the interest of the nation or contrary to any Government announced policies.14 Filipino citizens who have lost their citizenship may however reacquire the same in the manner provided by law. Commonwealth Act. No. (C.A. No. 63), enumerates the three modes by which Philippine citizenship may be reacquired by a former citizen: (1) by naturalization, (2) by repatriation, and (3) by direct act of Congress.15 Naturalization is mode for both acquisition and reacquisition of Philippine citizenship. As a mode of initially acquiring Philippine citizenship, naturalization is governed by Commonwealth Act No. 473, as amended. On the other hand, naturalization as a mode for reacquiring Philippine citizenship is governed by Commonwealth Act No. 63.16 Under this law, a former Filipino citizen who wishes to reacquire Philippine citizenship must possess certain qualifications17 and none of the disqualification mentioned in Section 4 of C.A. 473.18 Repatriation, on the other hand, may be had under various statutes by those who lost their citizenship due to: (1) desertion of the armed forces;19 services in the armed forces of the allied forces in World War II;20 (3) service in the Armed Forces of the United States at any other time,21 (4) marriage of a Filipino woman to an alien;22 and (5) political economic necessity.23

As distinguished from the lengthy process of naturalization, repatriation simply consists of the taking of an oath of allegiance to the Republic of the Philippine and registering said oath in the Local Civil Registry of the place where the person concerned resides or last resided. In Angat v. Republic,24 we held: xxx. Parenthetically, under these statutes [referring to RA Nos. 965 and 2630], the person desiring to reacquire Philippine citizenship would not even be required to file a petition in court, and all that he had to do was to take an oath of allegiance to the Republic of the Philippines and to register that fact with the civil registry in the place of his residence or where he had last resided in the Philippines. [Italics in the original.25 Moreover, repatriation results in the recovery of the original nationality.26 This means that a naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he was originally a natural-born citizen before he lost his Philippine citizenship, he will be restored to his former status as a natural-born Filipino. In respondent Cruz's case, he lost his Filipino citizenship when he rendered service in the Armed Forces of the United States. However, he subsequently reacquired Philippine citizenship under R.A. No. 2630, which provides: Section 1. Any person who had lost his Philippine citizenship by rendering service to, or accepting commission in, the Armed Forces of the United States, or after separation from the Armed Forces of the United States, acquired United States citizenship, may reacquire Philippine citizenship by taking an oath of allegiance to the Republic of the Philippines and registering the same with Local Civil Registry in the place where he resides or last resided in the Philippines. The said oath of allegiance shall contain a renunciation of any other citizenship. Having thus taken the required oath of allegiance to the Republic and having registered the same in the Civil Registry of Magantarem, Pangasinan in accordance with the aforecited provision, respondent Cruz is deemed to have recovered his original status as a natural-born citizen, a status which he acquired at birth as the son of a Filipino father.27 It bears stressing that the act of repatriation allows him to recover, or return to, his original status before he lost his Philippine citizenship. Petitioner's contention that respondent Cruz is no longer a natural-born citizen since he had to perform an act to regain his citizenship is untenable. As correctly explained by the HRET in its decision, the term "natural-born citizen" was first defined in Article III, Section 4 of the 1973 Constitution as follows: Sec. 4. A natural-born citizen is one who is a citizen of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship. Two requisites must concur for a person to be considered as such: (1) a person must be a Filipino citizen birth and (2) he does not have to perform any act to obtain or perfect his Philippine citizenship. Under the 1973 Constitution definition, there were two categories of Filipino citizens which were not considered natural-born: (1) those who were naturalized and (2) those born before January 17, 1973,38 of Filipino mothers who, upon reaching the age of majority, elected Philippine citizenship. Those "naturalized citizens" were not considered natural-born obviously because they were not Filipino at birth and had to perform an act to acquire Philippine citizenship. Those born of Filipino mothers before the effectively of the 1973 Constitution were likewise not considered natural-born because they also had to perform an act to perfect their Philippines citizenship. The present Constitution, however, now consider those born of Filipino mothers before the effectivity of the 1973 Constitution and who elected Philippine citizenship upon reaching the majority age as natural-born. After defining who re natural-born citizens, Section 2 of Article IV adds a sentence: "Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens." Consequently, only naturalized Filipinos are considered not natural-born citizens. It is apparent from the enumeration of who are citizens under the present Constitution that there are only two classes of citizens: (1) those who are natural-born and (2) those who are naturalized in accordance with law. A citizen who is not a naturalized Filipino, i.e., did not have to undergo the process of naturalization to obtain Philippine citizenship, necessarily is natural-born Filipino. Noteworthy is the absence in said enumeration of a separate category for persons who, after losing Philippine citizenship, subsequently reacquire it. The reason therefor is clear: as to such persons, they would either be natural-born or naturalized depending on the reasons for the loss of their citizenship and the mode prescribed by the applicable law for the reacquisition thereof. As respondent Cruz was not required by law to go through naturalization proceeding in order to reacquire his citizenship, he is perforce a natural-born Filipino. As such, he possessed all the necessary qualifications to be elected as member of the House of Representatives. A final point. The HRET has been empowered by the Constitution to be the "sole judge" of all contests relating to the election, returns, and qualifications of the members of the House.29 The Court's jurisdiction over the HRET is merely to check "whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction" on the part of the latter.30 In the absence thereof, there is no occasion for the Court to exercise its corrective power and annul the decision of the HRET nor to substitute the Court's judgement for that of the latter for the simple reason

that it is not the office of a petition for certiorari to inquire into the correctness of the assailed decision.31 There is no such showing of grave abuse of discretion in this case. WHEREFORE, the petition is hereby DISMISSED. SO ORDERED.

G.R. No. 120295 June 28, 1996 JUAN G. FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents. G.R. No. 123755 June 28, 1996 RAUL R. LEE, petitioner, vs. COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.

PANGANIBAN, J.:p The ultimate question posed before this Court in these twin cases is: Who should be declared the rightful governor of Sorsogon (i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in three successive elections but who was twice declared by this Court to be disqualified to hold such office due to his alien citizenship, and who now claims to have re-assumed his lost Philippine citizenship thru repatriation; (ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the votes cast in favor of Frivaldo should be considered void; that the electorate should be deemed to have intentionally thrown away their ballots; and that legally, he secured the most number of valid votes; or (iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted directly to the position of governor, but who according to prevailing jurisprudence should take over the said post inasmuch as, by the ineligibility of Frivaldo, a "permanent vacancy in the contested office has occurred"? In ruling for Frivaldo, the Court lays down new doctrines on repatriation, clarifies/reiterates/amplifies existing jurisprudence on citizenship and elections, and upholds the superiority of substantial justice over pure legalisms. G.R. No. 123755 This is a special civil action under Rules 65 and 58 of the Rules of Court for certiorari and preliminary injunction to review and annul a Resolution of the respondent Commission on Elections (Comelec), First Division, 1 promulgated
on December 19, 1995 2 and another Resolution of the Comelec en banc promulgated February 23, 1996 3 denying petitioner's motion for reconsideration.

The Facts On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of Candidacy for the office of Governor of Sorsogon in the May 8, 1995 elections. On March 23, 1995, petitioner Raul R. Lee, another candidate, filed a petition 4 with the Comelec docketed as SPA No. 95-028 praying that Frivaldo "be disqualified from seeking or holding any
public office or position by reason of not yet being a citizen of the Philippines", and that his Certificate of Candidacy be canceled. On May 1, 1995, the Second Division of the Comelec promulgated a Resolution 5 granting the petition with the following disposition 6:

WHEREFORE, this Division resolves to GRANT the petition and declares that respondent is DISQUALIFIED to run for the Office of Governor of Sorsogon on the ground that he is NOT a citizen of the Philippines. Accordingly, respondent's certificate of candidacy is canceled. The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the May 8, 1995 elections. So, his candidacy continued and he was voted for during the elections held on said date. On May 11, 1995, the Comelec en banc 7 affirmed the aforementioned Resolution of the Second Division. The Provincial Board of Canvassers completed the canvass of the election returns and a Certificate of Votes 8dated
May 27, 1995 was issued showing the following votes obtained by the candidates for the position of Governor of Sorsogon:

Antonio H. Escudero, Jr. 51,060 Juan G. Frivaldo 73,440 Raul R. Lee 53,304

Isagani P. Ocampo 1,925 On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition 9 praying for his proclamation as the
duly-elected Governor of Sorsogon.

In an order 10 dated June 21, 1995, but promulgated according to the petition "only on June 29, 1995," the Comelec en
banc directed "the Provincial Board of Canvassers of Sorsogon to reconvene for the purpose of proclaiming candidate Raul Lee as the winning gubernatorial candidate in the province of Sorsogon on June 29, 1995 . . ." Accordingly, at 8:30 in the evening of June 30, 1995, Lee was proclaimed governor of Sorsogon.

On July 6, 1995, Frivaldo filed with the Comelec a new petition, 11 docketed as SPC No. 95-317, praying for the
annulment of the June 30, 1995 proclamation of Lee and for his own proclamation. He alleged that on June 30, 1995, at 2:00 in the afternoon, he took his oath of allegiance as a citizen of the Philippines after "his petition for repatriation under P.D. 725 which he filed with the Special Committee on Naturalization in September 1994 had been granted". As such, when "the said order (dated June 21, 1995) (of the Comelec) . . . was released and received by Frivaldo on June 30, 1995 at 5:30 o'clock in the evening, there was no more legal impediment to the proclamation (of Frivaldo) as governor . . ." In the alternative, he averred that pursuant to the two cases of Labo vs. Comelec, 12 the Vice-Governor - not Lee - should occupy said position of governor.

On December 19, 1995, the Comelec First Division promulgated the herein assailed Resolution 13 holding that Lee,
"not having garnered the highest number of votes," was not legally entitled to be proclaimed as duly-elected governor; and that Frivaldo, "having garnered the highest number of votes, and . . . having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the provisions of Presidential Decree No. 725 . . . (is) qualified to hold the office of governor of Sorsogon"; thus:

PREMISES CONSIDERED, the Commission (First Division), therefore RESOLVES to GRANT the Petition. Consistent with the decisions of the Supreme Court, the proclamation of Raul R. Lee as Governor of Sorsogon is hereby ordered annulled, being contrary to law, he not having garnered the highest number of votes to warrant his proclamation. Upon the finality of the annulment of the proclamation of Raul R. Lee, the Provincial Board of Canvassers is directed to immediately reconvene and, on the basis of the completed canvass, proclaim petitioner Juan G. Frivaldo as the duly elected Governor of Sorsogon having garnered the highest number of votes, and he having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the provisions of Presidential Decree No. 725 and, thus, qualified to hold the office of Governor of Sorsogon. Conformably with Section 260 of the Omnibus Election Code (B.P. Blg. 881), the Clerk of the Commission is directed to notify His Excellency the President of the Philippines, and the Secretary of the Sangguniang Panlalawigan of the Province of Sorsogon of this resolution immediately upon the due implementation thereof. On December 26, 1995, Lee filed a motion for reconsideration which was denied by the Comelec en banc in its Resolution 14 promulgated on February 23, 1996. On February 26, 1996, the present petition was filed. Acting on the
prayer for a temporary restraining order, this Court issued on February 27, 1996 a Resolution which inter alia directed the parties "to maintain the status quo prevailing prior to the filing of this petition."

The Issues in G.R. No. 123755 Petitioner Lee's "position on the matter at hand may briefly be capsulized in the following propositions" 15: First -- The initiatory petition below was so far insufficient in form and substance to warrant the exercise by the COMELEC of its jurisdiction with the result that, in effect, the COMELEC acted without jurisdiction in taking cognizance of and deciding said petition; Second -- The judicially declared disqualification of respondent was a continuing condition and rendered him ineligible to run for, to be elected to and to hold the Office of Governor; Third -- The alleged repatriation of respondent was neither valid nor is the effect thereof retroactive as to cure his ineligibility and qualify him to hold the Office of Governor; and Fourth -- Correctly read and applied, the Labo Doctrine fully supports the validity of petitioner's proclamation as duly elected Governor of Sorsogon. G.R. No. 120295

This is a petition to annul three Resolutions of the respondent Comelec, the first two of which are also at issue in G.R. No. 123755, as follows: 1. Resolution 16 of the Second Division, promulgated on May 1, 1995, disqualifying Frivaldo from running
for governor of Sorsogon in the May 8, 1995 elections "on the ground that he is not a citizen of the Philippines";

2. Resolution 17 of the Comelec en banc, promulgated on May 11, 1995; and 3. Resolution 18 of the Comelec en banc, promulgated also on May 11, 1995 suspending the
proclamation of, among others, Frivaldo.

The Facts and the Issue The facts of this case are essentially the same as those in G.R. No. 123755. However, Frivaldo assails the abovementioned resolutions on a different ground: that under Section 78 of the Omnibus Election Code, which is reproduced hereinunder: Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. -- A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after notice and hearing, not later than fifteen days before the election. (Emphasis supplied.) the Comelec had no jurisdiction to issue said Resolutions because they were not rendered "within the period allowed by law" i.e., "not later than fifteen days before the election." Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the petition for disqualification within the period of fifteen days prior to the election as provided by law is a jurisdictional defect which renders the said Resolutions null and void. By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and 123755 since they are intimately related in their factual environment and are identical in the ultimate question raised, viz., who should occupy the position of governor of the province of Sorsogon. On March 19, 1995, the Court heard oral argument from the parties and required them thereafter to file simultaneously their respective memoranda. The Consolidated Issues From the foregoing submissions, the consolidated issues may be restated as follows: 1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his lack of citizenship as to qualify him to be proclaimed and to hold the Office of Governor? If not, may it be given retroactive effect? If so, from when? 2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a continuing bar to his eligibility to run for, be elected to or hold the governorship of Sorsogon? 3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC No. 95-317 considering that said petition is not "a pre-proclamation case, an election protest or a quo warranto case"? 4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of existing jurisprudence? 5. Did the respondent Commission on Elections exceed its jurisdiction in promulgating the assailed Resolutions, all of which prevented Frivaldo from assuming the governorship of Sorsogon, considering that they were not rendered within the period referred to in Section 78 of the Omnibus Election Code, viz., "not later than fifteen days before the elections"? The First Issue: Frivaldo's Repatriation The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold legal issue in this case. All the other matters raised are secondary to this. The Local Government Code of 1991 19 expressly requires Philippine citizenship as a qualification for elective local
officials, including that of provincial governor, thus:

Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. (b) Candidates for the position of governor, vice governor or member of the sangguniang panlalawigan, or mayor, vice mayor or member of the sangguniang panlungsod of highly urbanized cities must be at least twenty-three (23) years of age on election day. xxx xxx xxx Inasmuch as Frivaldo had been declared by this Court 20 as a non-citizen, it is therefore incumbent upon him to show
that he has reacquired citizenship; in fine, that he possesses the qualifications prescribed under the said statute (R.A. 7160).

Under Philippine law, 21 citizenship may be reacquired by direct act of Congress, by naturalization or by repatriation.
Frivaldo told this Court in G.R. No. 104654 22 and during the oral argument in this case that he tried to resume his citizenship by direct act of Congress, but that the bill allowing him to do so "failed to materialize, notwithstanding the endorsement of several members of the House of Representatives" due, according to him, to the "maneuvers of his political rivals." In the same case, his attempt at naturalization was rejected by this Court because of jurisdictional, substantial and procedural defects.

Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected governor by the electorate of Sorsogon, with a margin of 27,000 votes in the 1988 elections, 57,000 in 1992, and 20,000 in 1995 over the same opponent Raul Lee. Twice, he was judicially declared a non-Filipino and thus twice disqualified from holding and discharging his popular mandate. Now, he comes to us a third time, with a fresh vote from the people of Sorsogon and a favorable decision from the Commission on Elections to boot. Moreover, he now boasts of having successfully passed through the third and last mode of reacquiring citizenship: by repatriation under P.D. No. 725, with no less than the Solicitor General himself, who was the prime opposing counsel in the previous cases he lost, this time, as counsel for co-respondent Comelec, arguing the validity of his cause (in addition to his able private counsel Sixto S. Brillantes, Jr.). That he took his oath of allegiance under the provisions of said Decree at 2:00 p.m. on June 30, 1995 is not disputed. Hence, he insists that he -- not Lee -- should have been proclaimed as the duly-elected governor of Sorsogon when the Provincial Board of Canvassers met at 8:30 p.m. on the said date since, clearly and unquestionably, he garnered the highest number of votes in the elections and since at that time, he already reacquired his citizenship. En contrario, Lee argues that Frivaldo's repatriation is tainted with serious defects, which we shall now discuss in seriatim. First, Lee tells us that P.D. No. 725 had "been effectively repealed", asserting that "then President Corazon Aquino exercising legislative powers under the Transitory Provisions of the 1987 Constitution, forbade the grant of citizenship by Presidential Decree or Executive Issuances as the same poses a serious and contentious issue of policy which the present government, in the exercise of prudence and sound discretion, should best leave to the judgment of the first Congress under the 1987 Constitution", adding that in her memorandum dated March 27, 1987 to the members of the Special Committee on Naturalization constituted for purposes of Presidential Decree No. 725, President Aquino directed them "to cease and desist from undertaking any and all proceedings within your functional area of responsibility as defined under Letter of Instructions (LOI) No. 270 dated April 11, 1975, as amended." 23 This memorandum dated March 27, 1987 24 cannot by any stretch of legal hermeneutics be construed as a law
sanctioning or authorizing a repeal of P.D. No. 725. Laws are repealed only by subsequent ones 25 and a repeal may be express or implied. It is obvious that no express repeal was made because then President Aquino in her memorandum -based on the copy furnished us by Lee -- did not categorically and/or impliedly state that P.D. 725 was being repealed or was being rendered without any legal effect. In fact, she did not even mention it specifically by its number or text. On the other hand, it is a basic rule of statutory construction that repeals by implication are not favored. An implied repeal will not be allowed "unless it is convincingly and unambiguously demonstrated that the two laws are clearly repugnant and patently inconsistent that they cannot co-exist". 26

The memorandum of then President Aquino cannot even be regarded as a legislative enactment, for not every pronouncement of the Chief Executive even under the Transitory Provisions of the 1987 Constitution can nor should be regarded as an exercise of her law-making powers. At best, it could be treated as an executive policy addressed to the Special Committee to halt the acceptance and processing of applications for repatriation pending whatever "judgment the first Congress under the 1987 Constitution" might make. In other words, the former President did not repeal P.D. 725 but left it to the first Congress -- once created -- to deal with the matter. If she had intended to repeal such law, she should have unequivocally said so instead of referring the matter to Congress. The fact is she carefully couched her presidential issuance in terms that clearly indicated the intention of "the present government, in the exercise of prudence and sound discretion" to leave the matter of repeal to the new Congress. Any other

interpretation of the said Presidential Memorandum, such as is now being proffered to the Court by Lee, would visit unmitigated violence not only upon statutory construction but on common sense as well. Second, Lee also argues that "serious congenital irregularities flawed the repatriation proceedings," asserting that Frivaldo's application therefor was "filed on June 29, 1995 . . . (and) was approved in just one day or on June 30, 1995 . . .", which "prevented a judicious review and evaluation of the merits thereof." Frivaldo counters that he filed his application for repatriation with the Office of the President in Malacaang Palace on August 17, 1994. This is confirmed by the Solicitor General. However, the Special Committee was reactivated only on June 8, 1995, when presumably the said Committee started processing his application. On June 29, 1995, he filled up and re-submitted the FORM that the Committee required. Under these circumstances, it could not be said that there was "indecent haste" in the processing of his application. Anent Lee's charge that the "sudden reconstitution of the Special Committee on Naturalization was intended solely for the personal interest of respondent," 27 the Solicitor General explained during the oral argument on March 19, 1996
that such allegation is simply baseless as there were many others who applied and were considered for repatriation, a list of whom was submitted by him to this Court, through a Manifestation 28 filed on April 3, 1996.

On the basis of the parties' submissions, we are convinced that the presumption of regularity in the performance of official duty and the presumption of legality in the repatriation of Frivaldo have not been successfully rebutted by Lee. The mere fact that the proceedings were speeded up is by itself not a ground to conclude that such proceedings were necessarily tainted. After all, the requirements of repatriation under P.D. No. 725 are not difficult to comply with, nor are they tedious and cumbersome. In fact, P.D. 725 29 itself requires very little of an applicant, and even the rules and regulations to implement the said decree were left
to the Special Committee to promulgate. This is not unusual since, unlike in naturalization where an alien covets a firsttimeentry into Philippine political life, in repatriation the applicant is a former natural-born Filipino who is merely seeking to reacquire his previous citizenship. In the case of Frivaldo, he was undoubtedly a natural-born citizen who openly and faithfully served his country and his province prior to his naturalization in the United States -- a naturalization he insists was made necessary only to escape the iron clutches of a dictatorship he abhorred and could not in conscience embrace -- and who, after the fall of the dictator and the re-establishment of democratic space, wasted no time in returning to his country of birth to offer once more his talent and services to his people.

So too, the fact that ten other persons, as certified to by the Solicitor General, were granted repatriation argues convincingly and conclusively against the existence of favoritism vehemently posited by Raul Lee. At any rate, any contest on the legality of Frivaldo's repatriation should have been pursued before the Committee itself, and, failing there, in the Office of the President, pursuant to the doctrine of exhaustion of administrative remedies. Third, Lee further contends that assuming the assailed repatriation to be valid, nevertheless it could only be effective as at 2:00 p.m. of June 30, 1995 whereas the citizenship qualification prescribed by the Local Government Code "must exist on the date of his election, if not when the certificate of candidacy is filed," citing our decision in G.R. 104654 30 which held that "both the Local Government Code and the Constitution require that only Philippine citizens can
run and be elected to public office." Obviously, however, this was a mere obiter as the only issue in said case was whether Frivaldo's naturalization was valid or not -- and NOT the effective date thereof. Since the Court held his naturalization to be invalid, then the issue of when an aspirant for public office should be a citizen was NOT resolved at all by the Court. Which question we shall now directly rule on.

Under Sec. 39 of the Local Government Code, "(a)n elective local official must be: * a citizen of the Philippines; * a registered voter in the barangay, municipality, city, or province . . . where he intends to be elected; * a resident therein for at least one (1) year immediately preceding the day of the election; * able to read and write Filipino or any other local language or dialect. * In addition, "candidates for the position of governor . . . must be at least twenty-three (23) years of age on election day. From the above, it will be noted that the law does not specify any particular date or time when the candidate must possess citizenship, unlike that for residence (which must consist of at least one year's residency immediately preceding the day of election) and age (at least twenty three years of age on election day). Philippine citizenship is an indispensable requirement for holding an elective public office, 31 and the purpose of the
citizenship qualification is none other than to ensure that no alien, i.e., no person owing allegiance to another nation, shall govern our people and our country or a unit of territory thereof. Now, an official begins to govern or to discharge his functions only upon his proclamation and on the day the law mandates his term of office to begin. Since Frivaldo reassumed his citizenship on June 30, 1995 -- the very day 32 the term of office of governor (and other elective officials) began -- he was therefore already qualified to be proclaimed, to hold such office and to discharge the functions and responsibilities thereof as of said date. In short, at that time, he was already qualified to govern his native Sorsogon. This

is the liberal interpretation that should give spirit, life and meaning to our law on qualifications consistent with the purpose for which such law was enacted. So too, even from a literal (as distinguished from liberal) construction, it should be noted that Section 39 of the Local Government Code speaks of "Qualifications" of "ELECTIVE OFFICIALS", not of candidates. Why then should such qualification be required at the time of election or at the time of the filing of the certificates of candidacies, as Lee insists? Literally, such qualifications -- unless otherwise expressly conditioned, as in the case of age and residence -- should thus be possessed when the "elective [or elected] official" begins to govern, i.e., at the time he is proclaimed and at the start of his term -- in this case, on June 30, 1995. Paraphrasing this Court's ruling in Vasquez vs. Giap and Li Seng Giap & Sons, 33 if the purpose of the citizenship requirement is to ensure that our people and country do not end up being governed by aliens,i.e., persons owing allegiance to another nation, that aim or purpose would not be thwarted but instead achieved by construing the citizenship qualification as applying to the time of proclamation of the elected official and at the start of his term.

But perhaps the more difficult objection was the one raised during the oral argument 34 to the effect that the citizenship
qualification should be possessed at the time the candidate (or for that matter the elected official) registered as a voter. After all, Section 39, apart from requiring the official to be a citizen, also specifies as another item of qualification, that he be a "registered voter". And, under the law 35 a "voter" must be a citizen of the Philippines. So therefore, Frivaldo could not have been a voter -- much less a validly registered one -- if he was not a citizen at the time of such registration.

The answer to this problem again lies in discerning the purpose of the requirement. If the law intended thecitizenship qualification to be possessed prior to election consistent with the requirement of being a registered voter, then it would not have made citizenship a SEPARATE qualification. The law abhors a redundancy. It therefore stands to reason that the law intended CITIZENSHIP to be a qualification distinct from being a VOTER, even if being a voter presumes being a citizen first. It also stands to reason that the voter requirement was included as another qualification (aside from "citizenship"), not to reiterate the need for nationality but to require that the official be registered as a voter IN THE AREA OR TERRITORY he seeks to govern, i.e., the law states: "a registered voter in the barangay, municipality, city, or province . . . where he intends to be elected." It should be emphasized that the Local Government Code requires an elective official to be a registered voter. It does not require him to vote actually. Hence, registration -- not the actual voting -- is the core of this "qualification". In other words, the law's purpose in this second requirement is to ensure that the prospective official is actually registered in the area he seeks to govern -- and not anywhere else. Before this Court, Frivaldo has repeatedly emphasized -- and Lee has not disputed -- that he "was and is a registered voter of Sorsogon, and his registration as a voter has been sustained as valid by judicial declaration . . . In fact, he cast his vote in his precinct on May 8, 1995." 36 So too, during the oral argument, his counsel steadfastly maintained that "Mr. Frivaldo has always been a registered voter of Sorsogon. He has voted in 1987, 1988, 1992, then he voted again in 1995. In fact, his eligibility as a voter was questioned, but the court dismissed (sic) his eligibility as a voter and he was allowed to vote as in fact, he voted in all the previous elections including on May 8, 1995." 37 It is thus clear that Frivaldo is a registered voter in the province where he intended to be elected. There is yet another reason why the prime issue of citizenship should be reckoned from the date of proclamation, not necessarily the date of election or date of filing of the certificate of candidacy. Section 253 of the Omnibus Election Code 38 gives any voter, presumably including the defeated candidate, the opportunity to question the
ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision of the Code that authorizes a remedy on how to contest before the Comelec an incumbent's ineligibility arising from failure to meet the qualifications enumerated under Sec. 39 of the Local Government Code. Such remedy of Quo Warranto can be availed of "within ten days after proclamation" of the winning candidate. Hence, it is only at such time that the issue of ineligibility may be taken cognizance of by the Commission. And since, at the very moment of Lee's proclamation (8:30 p.m., June 30, 1995), Juan G. Frivaldo was already and indubitably a citizen, having taken his oath of allegiance earlier in the afternoon of the same day, then he should have been the candidate proclaimed as he unquestionably garnered the highest number of votes in the immediately preceding elections and such oath had already cured his previous "judicially-declared" alienage. Hence, at such time, he was no longer ineligible.

But to remove all doubts on this important issue, we also hold that the repatriation of Frivaldo RETROACTED to the date of the filing of his application on August 17, 1994. It is true that under the Civil Code of the Philippines, 39 "(l)aws shall have no retroactive effect, unless the contrary is
provided." But there are settled exceptions 40 to this general rule, such as when the statute is CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS.

According to Tolentino, 41 curative statutes are those which undertake to cure errors and irregularities, thereby validating
judicial or administrative proceedings, acts of public officers, or private deeds and contracts which otherwise would not produce their intended consequences by reason of some statutory disability or failure to comply with some technical requirement. They operate on conditions already existing, and are necessarily retroactive in operation. Agpalo, 42 on the other hand, says that curative statutes are "healing acts . . . curing defects and adding to the means of enforcing existing obligations . . . (and) are intended to supply defects, abridge superfluities in existing laws, and curb certain evils. . . . By their very nature, curative statutes are retroactive . . . (and) reach back to past events to correct errors or irregularities and to render valid and effective attempted acts which would be otherwise ineffective for the purpose the parties intended."

On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of such rights, ordinarily do not come within the legal meaning of a retrospective law, nor within the general rule against the retrospective operation of statutes. 43 A reading of P.D. 725 immediately shows that it creates a new right, and also provides for a new remedy, thereby filling certain voids in our laws. Thus, in its preamble, P.D. 725 expressly recognizes the plight of "many Filipino women (who) had lost their Philippine citizenship by marriage to aliens" and who could not, under the existing law (C.A. No. 63, as amended) avail of repatriation until "after the death of their husbands or the termination of their marital status" and who could neither be benefitted by the 1973 Constitution's new provision allowing "a Filipino woman who marries an alien to retain her Philippine citizenship . . ." because "such provision of the new Constitution does not apply to Filipino women who had married aliens before said constitution took effect." Thus, P.D. 725 granted a new right to these women -- the right to re-acquire Filipino citizenship even during their marital coverture, which right did not exist prior to P.D. 725. On the other hand, said statute also provided a new remedyand a new right in favor of other "natural born Filipinos who (had) lost their Philippine citizenship but now desire to reacquire Philippine citizenship", because prior to the promulgation of P.D. 725 such former Filipinos would have had to undergo the tedious and cumbersome process of naturalization, but with the advent of P.D. 725 they could now re-acquire their Philippine citizenship under the simplified procedure of repatriation. The Solicitor General 44 argues: By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA 342), since they are intended to supply defects, abridge superfluities in existing laws (Del Castillo vs. Securities and Exchange Commission, 96 Phil. 119) and curb certain evils (Santos vs. Duata, 14 SCRA 1041). In this case, P.D. No. 725 was enacted to cure the defect in the existing naturalization law, specifically C.A. No. 63 wherein married Filipino women are allowed to repatriate only upon the death of their husbands, and natural-born Filipinos who lost their citizenship by naturalization and other causes faced the difficulty of undergoing the rigid procedures of C.A. 63 for reacquisition of Filipino citizenship by naturalization. Presidential Decree No. 725 provided a remedy for the aforementioned legal aberrations and thus its provisions are considered essentially remedial and curative. In light of the foregoing, and prescinding from the wording of the preamble, it is unarguable that the legislative intent was precisely to give the statute retroactive operation. "(A) retrospective operation is given to a statute or amendment where the intent that it should so operate clearly appears from a consideration of the act as a whole, or from the terms thereof." 45 It is obvious to the Court that the statute was meant to "reach back" to those persons, events
and transactions not otherwise covered by prevailing law and jurisprudence. And inasmuch as it has been held that citizenship is a political and civil right equally as important as the freedom of speech, liberty of abode, the right against unreasonable searches and seizures and other guarantees enshrined in the Bill of Rights, therefore the legislative intent to give retrospective operation to P.D. 725 must be given the fullest effect possible. "(I)t has been said that a remedial statute must be so construed as to make it effect the evident purpose for which it was enacted , so that if the reason of the statute extends to past transactions, as well as to those in the future, then it will be so applied although the statute does not in terms so direct, unless to do so would impair some vested right or violate some constitutional guaranty." 46 This is all the more true of P.D. 725, which did not specify any restrictions on or delimit or qualify the right of repatriation granted therein.

At this point, a valid question may be raised: How can the retroactivity of P.D. 725 benefit Frivaldo considering that said law was enacted on June 5, 1975, while Frivaldo lost his Filipino citizenship much later, on January 20, 1983, and applied for repatriation even later, on August 17, 1994? While it is true that the law was already in effect at the time that Frivaldo became an American citizen, nevertheless, it is not only the law itself (P.D. 725) which is to be given retroactive effect, but even the repatriation granted under said law to Frivaldo on June 30, 1995 is to be deemed to have retroacted to the date of his application therefor, August 17, 1994. The reason for this is simply that if, as in this case, it was the intent of the legislative authority that the law should apply to past events -- i.e., situations and transactions existing even before the law came into being - in order to benefit the greatest number of former Filipinos possible thereby enabling them to enjoy and exercise the constitutionally guaranteed right of citizenship, and such legislative intention is to be given the fullest effect and expression, then there is all the more reason to have the law apply in a retroactive or retrospective manner to situations, events and transactions subsequent to the passage of such law. That is, the repatriation granted to Frivaldo on June 30, 1995 can and should be made to take effect as of date of his application. As earlier mentioned, there is nothing in the law that would bar this or would show a contrary intention on the part of the legislative authority; and there is no showing that damage or prejudice to anyone, or anything unjust or injurious would result from giving retroactivity to his repatriation. Neither has Lee shown that there will result the impairment of any contractual obligation, disturbance of any vested right or breach of some constitutional guaranty. Being a former Filipino who has served the people repeatedly, Frivaldo deserves a liberal interpretation of Philippine laws and whatever defects there were in his nationality should now be deemed mooted by his repatriation.

Another argument for retroactivity to the date of filing is that it would prevent prejudice to applicants. If P.D. 725 were not to be given retroactive effect, and the Special Committee decides not to act, i.e., to delay the processing of applications for any substantial length of time, then the former Filipinos who may be stateless, as Frivaldo -- having already renounced his American citizenship -- was, may be prejudiced for causes outside their control. This should not be. In case of doubt in the interpretation or application of laws, it is to be presumed that the law-making body intended right and justice to prevail. 47 And as experience will show, the Special Committee was able to process, act upon and grant applications for repatriation within relatively short spans of time after the same were filed. 48 The fact that such interregna were
relatively insignificant minimizes the likelihood of prejudice to the government as a result of giving retroactivity to repatriation. Besides, to the mind of the Court, direct prejudice to the government is possible only where a person's repatriation has the effect of wiping out a liability of his to the government arising in connection with or as a result of his being an alien, and accruing only during the interregnum between application and approval, a situation that is not present in the instant case.

And it is but right and just that the mandate of the people, already twice frustrated, should now prevail. Under the circumstances, there is nothing unjust or iniquitous in treating Frivaldo's repatriation as having become effective as of the date of his application, i.e., on August 17, 1994. This being so, all questions about his possession of the nationality qualification -- whether at the date of proclamation (June 30, 1995) or the date of election (May 8, 1995) or date of filing his certificate of candidacy (March 20, 1995) would become moot. Based on the foregoing, any question regarding Frivaldo's status as a registered voter would also be deemed settled. Inasmuch as he is considered as having been repatriated -- i.e., his Filipino citizenship restored -- as of August 17, 1994, his previous registration as a voter is likewise deemed validated as of said date. It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code would disqualify him "from running for any elective local position?" 49 We answer this question in the negative, as there is cogent reason to
hold that Frivaldo was really STATELESS at the time he took said oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he "had long renounced and had long abandoned his American citizenship -- long before May 8, 1995. At best, Frivaldo was stateless in the interim -- when he abandoned and renounced his US citizenship but before he was repatriated to his Filipino citizenship." 50

On this point, we quote from the assailed Resolution dated December 19, 1995: 51 By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his oath of allegiance to the Philippine Government when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an oath of allegiance to the Philippine Government." These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission are conclusive upon this Court, absent any showing of capriciousness or arbitrariness or abuse. 52 The Second Issue: Is Lack of Citizenship a Continuing Disqualification? Lee contends that the May 1, 1995 Resolution 53 of the Comelec Second Division in SPA No. 95-028 as affirmed in
totoby Comelec En Banc in its Resolution of May 11, 1995 "became final and executory after five (5) days or on May 17, 1995, no restraining order having been issued by this Honorable Court. 54 Hence, before Lee "was proclaimed as the elected governor on June 30, 1995, there was already a final and executory judgment disqualifying" Frivaldo. Lee adds that this Court's two rulings (which Frivaldo now concedes were legally "correct") declaring Frivaldo an alien have also become final and executory way before the 1995 elections, and these "judicial pronouncements of his political status as an American citizen absolutely and for all time disqualified (him) from running for, and holding any public office in the Philippines."

We do not agree. It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was rendered in connection with the 1988 elections while that in G.R. No. 104654 was in connection with the 1992 elections. That he was disqualified for such elections is final and can no longer be changed. In the words of the respondent Commission (Second Division) in its assailed Resolution: 55 The records show that the Honorable Supreme Court had decided that Frivaldo was not a Filipino citizen and thus disqualified for the purpose of the 1988 and 1992 elections. However, there is no record of any "final judgment" of the disqualification of Frivaldo as a candidate for the May 8, 1995 elections. What the Commission said in its Order of June 21, 1995 (implemented on June 30, 1995), directing the proclamation of Raul R. Lee, was that Frivaldo was not a Filipino citizen "having been declared by the Supreme Court in its Order dated March 25, 1995, not a citizen of the Philippines." This declaration of the Supreme Court, however, was in connection with the 1992 elections.

Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a person's future status with finality. This is because a person may subsequently reacquire, or for that matter lose, his citizenship under any of the modes recognized by law for the purpose. Hence, in Lee vs. Commissioner of Immigration, 56 we held: Everytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the corresponding court or administrative authority decides therein as to such citizenship is generally not considered res judicata, hence it has to be threshed out again and again, as the occasion demands. The Third Issue: Comelec's Jurisdiction Over The Petition in SPC No. 95-317 Lee also avers that respondent Comelec had no jurisdiction to entertain the petition in SPC No. 95-317 because the only "possible types of proceedings that may be entertained by the Comelec are a pre-proclamation case, an election protest or a quo warranto case". Again, Lee reminds us that he was proclaimed on June 30, 1995 but that Frivaldo filed SPC No. 95-317 questioning his (Lee's) proclamation only on July 6, 1995 -- "beyond the 5-day reglementary period." Hence, according to him, Frivaldo's "recourse was to file either an election protest or a quo warranto action." This argument is not meritorious. The Constitution 57 has given the Comelec ample power to "exercise exclusive
original jurisdiction over all contests relating to the elections, returns and qualifications of all elective . . . provincial . . . officials." Instead of dwelling at length on the various petitions that Comelec, in the exercise of its constitutional prerogatives, may entertain, suffice it to say that this Court has invariably recognized the Commission's authority to hear and decide petitions for annulment of proclamations -- of which SPC No. 95-317 obviously is one. 58 Thus, in Mentang vs. COMELEC, 59 we ruled:

The petitioner argues that after proclamation and assumption of office, a pre-proclamation controversy is no longer viable. Indeed, we are aware of cases holding that pre-proclamation controversies may no longer be entertained by the COMELEC after the winning candidate has been proclaimed. (citing Gallardo vs. Rimando, 187 SCRA 463; Salvacion vs. COMELEC, 170 SCRA 513; Casimiro vs. COMELEC, 171 SCRA 468.) This rule, however, is premised on an assumption that the proclamation is no proclamation at all and the proclaimed candidate's assumption of office cannot deprive the COMELEC of the power to make such declaration of nullity. (citing Aguam vs. COMELEC, 23 SCRA 883; Agbayani vs. COMELEC, 186 SCRA 484.) The Court however cautioned that such power to annul a proclamation must "be done within ten (10) days following the proclamation." Inasmuch as Frivaldo's petition was filed only six (6) days after Lee's proclamation, there is no question that the Comelec correctly acquired jurisdiction over the same. The Fourth Issue: Was Lee's Proclamation Valid? Frivaldo assails the validity of the Lee proclamation. We uphold him for the following reasons: First. To paraphrase this Court in Labo vs. COMELEC, 60 "the fact remains that he (Lee) was not the choice of the
sovereign will," and in Aquino vs. COMELEC, 61 Lee is "a second placer, . . . just that, a second placer."

In spite of this, Lee anchors his claim to the governorship on the pronouncement of this Court in the aforesaid Labo 62 case, as follows: The rule would have been different if the electorate fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In such case, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected. But such holding is qualified by the next paragraph, thus: But this is not the situation obtaining in the instant dispute. It has not been shown, and none was alleged, that petitioner Labo was notoriously known as an ineligible candidate, much less the electorate as having known of such fact. On the contrary, petitioner Labo was even allowed by no less than the Comelec itself in its resolution dated May 10, 1992 to be voted for the office of the city Payor as its resolution dated May 9, 1992 denying due course to petitioner Labo's certificate of candidacy had not yet become final and subject to the final outcome of this case. The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in this case because Frivaldo was in 1995 in an identical situation as Labo was in 1992 when the Comelec's cancellation of his certificate of candidacy was not yet final on election day as there was in both cases a pending motion for reconsideration, for which reason

Comelec issued an (omnibus) resolution declaring that Frivaldo (like Labo in 1992) and several others can still be voted for in the May 8, 1995 election, as in fact, he was. Furthermore, there has been no sufficient evidence presented to show that the electorate of Sorsogon was "fully aware in fact and in law" of Frivaldo's alleged disqualification as to "bring such awareness within the realm of notoriety;" in other words, that the voters intentionally wasted their ballots knowing that, in spite of their voting for him, he was ineligible. If Labo has any relevance at all, it is that the vice-governor -- and not Lee -- should be proclaimed, since in losing the election, Lee was, to paraphrase Labo again, "obviously not the choice of the people" of Sorsogon. This is the emphatic teaching of Labo: The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office. Second. As we have earlier declared Frivaldo to have seasonably reacquired his citizenship and inasmuch as he obtained the highest number of votes in the 1995 elections, he -- not Lee -- should be proclaimed. Hence, Lee's proclamation was patently erroneous and should now be corrected. The Fifth Issue: Is Section 78 of the Election Code Mandatory? In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec (Second Division) dated May 1, 1995 and the confirmatory en banc Resolution of May 11, 1995 disqualifying him for want of citizenship should be annulled because they were rendered beyond the fifteen (15) day period prescribed by Section 78, of the Omnibus Election Code which reads as follows: Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. -- A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided after notice and hearing, not later than fifteen days before the election. (Emphasis supplied.) This claim is now moot and academic inasmuch as these resolutions are deemed superseded by the subsequent ones issued by the Commission (First Division) on December 19, 1995, affirmed en banc 63 on February 23, 1996;
which both upheld his election. At any rate, it is obvious that Section 78 is merely directory as Section 6 of R.A. No. 6646 authorizes the Commission to try and decide petitions for disqualifications even after the elections, thus:

Sec. 6. Effect of Disqualification Case. -- Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. (emphasis supplied) Refutation of Mr. Justice Davide's Dissent In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that President Aquino's memorandum dated March 27, 1987 should be viewed as a suspension (not a repeal, as urged by Lee) of P.D. 725. But whether it decrees a suspension or a repeal is a purely academic distinction because the said issuance is not a statute that can amend or abrogate an existing law. The existence and subsistence of P.D. 725 were recognized in the first Frivaldo case; 64 viz., "(u)nder CA No. 63 as
amended by CA No. 473 and P.D. No. 725, Philippine citizenship maybe reacquired by . . . repatriation". He also contends that by allowing Frivaldo to register and to remain as a registered voter, the Comelec and in effect this Court abetted a "mockery" of our two previous judgments declaring him a non-citizen. We do not see such abetting or mockery. The retroactivity of his repatriation, as discussed earlier, legally cured whatever defects there may have been in his registration as a voter for the purpose of the 1995 elections. Such retroactivity did not change his disqualifications in 1988 and 1992, which were the subjects of such previous rulings.

Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to question the ineligibility of a candidate, citing the Comelec's authority under Section 78 of the Omnibus Election Code allowing the denial of a certificate of candidacy on the ground of a false material representation therein as required by Section 74. Citing Loong, he then states his disagreement with our holding that Section 78 is merely directory. We really have no quarrel. Our point is that Frivaldo was in error in his claim in G.R. No. 120295 that the Comelec Resolutions promulgated on May 1, 1995 and May 11, 1995 were invalid because they were issued "not later than fifteen days before the election" as prescribed by Section 78. In dismissing the petition in G.R. No. 120295, we hold that the Comelec did not commit grave abuse of discretion because "Section 6 of R.A. 6646 authorizes the Comelec to try and decide disqualifications even after the elections." In spite of his disagreement with us on this point, i.e., that Section 78 "is

merely directory", we note that just like us, Mr. Justice Davide nonetheless votes to "DISMISS G.R. No. 120295". One other point. Loong, as quoted in the dissent, teaches that a petition to deny due course under Section 78 must be filed within the 25-day period prescribed therein. The present case however deals with the period during which the Comelec may decide such petition. And we hold that it may be decided even after thefifteen day period mentioned in Section 78. Here, we rule that a decision promulgated by the Comelec even after the elections is valid but Loong held that a petition filed beyond the 25-day period is out of time. There is no inconsistency nor conflict. Mr. Justice Davide also disagrees with the Court's holding that, given the unique factual circumstances of Frivaldo, repatriation may be given retroactive effect. He argues that such retroactivity "dilutes" our holding in the first Frivaldo case. But the first (and even the second Frivaldo) decision did not directly involve repatriation as a mode of acquiring citizenship. If we may repeat, there is no question that Frivaldo was not a Filipino for purposes of determining his qualifications in the 1988 and 1992 elections. That is settled. But his supervening repatriation has changed his political status -- not in 1988 or 1992, but only in the 1995 elections. Our learned colleague also disputes our holding that Frivaldo was stateless prior to his repatriation, saying that "informal renunciation or abandonment is not a ground to lose American citizenship". Since our courts are charged only with the duty of determining who are Philippine nationals, we cannot rule on the legal question of who are or who are not Americans. It is basic in international law that a State determines ONLY those who are its own citizens - not who are the citizens of other countries. 65 The issue here is: the Comelec made a finding of fact that Frivaldo was
stateless and such finding has not been shown by Lee to be arbitrary or whimsical. Thus, following settled case law, such finding is binding and final.

The dissenting opinion also submits that Lee who lost by chasmic margins to Frivaldo in all three previous elections, should be declared winner because "Frivaldo's ineligibility for being an American was publicly known". First, there is absolutely no empirical evidence for such "public" knowledge. Second, even if there is, such knowledge can be true post facto only of the last two previous elections. Third, even the Comelec and now this Court were/are still deliberating on his nationality before, during and after the 1995 elections. How then can there be such "public" knowledge? Mr. Justice Davide submits that Section 39 of the Local Government Code refers to the qualifications of electivelocal officials, i.e., candidates, and not elected officials, and that the citizenship qualification [under par. (a) of that section] must be possessed by candidates, not merely at the commencement of the term, but by election day at the latest. We see it differently. Section 39, par. (a) thereof speaks of "elective local official" while par. (b) to (f) refer to "candidates". If the qualifications under par. (a) were intended to apply to "candidates" and not elected officials, the legislature would have said so, instead of differentiating par. (a) from the rest of the paragraphs. Secondly, if Congress had meant that the citizenship qualification should be possessed at election day or prior thereto, it would have specifically stated such detail, the same way it did in pars. (b) to (f) far other qualifications of candidates for governor, mayor, etc. Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's repatriation on the ground, among others, that the law specifically provides that it is only after taking the oath of allegiance that applicants shall be deemed to have reacquired Philippine citizenship. We do not question what the provision states. We hold however that the provision should be understood thus: that after taking the oath of allegiance the applicant is deemed to have reacquired Philippine citizenship, which reacquisition (or repatriation) is deemed for all purposes and intents to have retroacted to the date of his application therefor. In any event, our "so too" argument regarding the literal meaning of the word "elective" in reference to Section 39 of the Local Authority Code, as well as regarding Mr. Justice Davide's thesis that the very wordings of P.D. 725 suggest non-retroactivity, were already taken up rather extensively earlier in this Decision. Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to uphold the Rule of Law." We agree -- we must all follow the rule of law. But that is NOT the issue here. The issue is how should the law be interpreted and applied in this case so it can be followed, so it can rule! At balance, the question really boils down to a choice of philosophy and perception of how to interpret and apply laws relating to elections: literal or liberal; the letter or the spirit, the naked provision or its ultimate purpose; legal syllogism or substantial justice; in isolation or in the context of social conditions; harshly against or gently in favor of the voters' obvious choice. In applying election laws, it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms. Indeed, to inflict a thrice rejected candidate upon the electorate of Sorsogon would constitute unmitigated judicial tyranny and an unacceptable assault upon this Court's conscience. EPILOGUE In sum, we rule that the citizenship requirement in the Local Government Code is to be possessed by an elective official at the latest as of the time he is proclaimed and at the start of the term of office to which he has been elected. We further hold P.D. No. 725 to be in full force and effect up to the present, not having been suspended or repealed expressly nor impliedly at any time, and Frivaldo's repatriation by virtue thereof to have been properly granted and thus valid and effective. Moreover, by reason of the remedial or curative nature of the law granting him a new right to resume his political status and the legislative intent behind it, as well as his unique situation of having been forced

to give up his citizenship and political aspiration as his means of escaping a regime he abhorred, his repatriation is to be given retroactive effect as of the date of his application therefor, during the pendency of which he was stateless, he having given up his U.S. nationality. Thus, in contemplation of law, he possessed the vital requirement of Filipino citizenship as of the start of the term of office of governor, and should have been proclaimed instead of Lee. Furthermore, since his reacquisition of citizenship retroacted to August 17, 1994, his registration as a voter of Sorsogon is deemed to have been validated as of said date as well. The foregoing, of course, are precisely consistent with our holding that lack of the citizenship requirement is not a continuing disability or disqualification to run for and hold public office. And once again, we emphasize herein our previous rulings recognizing the Comelec's authority and jurisdiction to hear and decide petitions for annulment of proclamations. This Court has time and again liberally and equitably construed the electoral laws of our country to give fullest effect to the manifest will of our people, 66 for in case of doubt, political laws must be interpreted to give life and spirit to the
popular mandate freely expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot stand in the way of the sovereign will. Consistently, we have held:

. . . (L)aws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections (citations omitted). 67 The law and the courts must accord Frivaldo every possible protection, defense and refuge, in deference to the popular will. Indeed, this Court has repeatedly stressed the importance of giving effect to the sovereign will in order to ensure the survival of our democracy. In any action involving the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the issues in a manner that would give effect to the will of the majority, for it is merely sound public policy to cause elective offices to be filled by those who are the choice of the majority. To successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility is so patently antagonistic 68 to constitutional and legal principles that overriding such ineligibility and
thereby giving effect to the apparent will of the people, would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote. In this undertaking, Lee has miserably failed.

In Frivaldo's case. it would have been technically easy to find fault with his cause. The Court could have refused to grant retroactivity to the effects of his repatriation and hold him still ineligible due to his failure to show his citizenship at the time he registered as a voter before the 1995 elections. Or, it could have disputed the factual findings of the Comelec that he was stateless at the time of repatriation and thus hold his consequent dual citizenship as a disqualification "from running for any elective local position." But the real essence of justice does not emanate from quibblings over patchwork legal technicality. It proceeds from the spirit's gut consciousness of the dynamic role of law as a brick in the ultimate development of the social edifice. Thus, the Court struggled against and eschewed the easy, legalistic, technical and sometimes harsh anachronisms of the law in order to evoke substantial justice in the larger social context consistent with Frivaldo's unique situation approximating venerability in Philippine political life. Concededly, he sought American citizenship only to escape the clutches of the dictatorship. At this stage, we cannot seriously entertain any doubt about his loyalty and dedication to this country. At the first opportunity, he returned to this land, and sought to serve his people once more. The people of Sorsogon overwhelmingly voted for him three times. He took an oath of allegiance to this Republic every time he filed his certificate of candidacy and during his failed naturalization bid. And let it not be overlooked, his demonstrated tenacity and sheer determination to reassume his nationality of birth despite several legal set-backs speak more loudly, in spirit, in fact and in truth than any legal technicality, of his consuming intention and burning desire to re-embrace his native Philippines even now at the ripe old age of 81 years. Such loyalty to and love of country as well as nobility of purpose cannot be lost on this Court of justice and equity. Mortals of lesser mettle would have given up. After all, Frivaldo was assured of a life of ease and plenty as a citizen of the most powerful country in the world. But he opted, nay, single-mindedly insisted on returning to and serving once more his struggling but beloved land of birth. He therefore deserves every liberal interpretation of the law which can be applied in his favor. And in the final analysis, over and above Frivaldo himself, the indomitable people of Sorsogon most certainly deserve to be governed by a leader of their overwhelming choice. WHEREFORE, in consideration of the foregoing: (1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed Resolutions of the respondent Commission are AFFIRMED. (2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic. In any event, it has no merit. No costs. SO ORDERED.

G.R. No. 134015 July 19, 1999 JUAN DOMINO, petitioner, vs. COMMISSION ON ELECTIONS, NARCISO Ra. GRAFILO, JR., EDDY B. JAVA, JUAN P. BAYONITO, JR., ROSARIO SAMSON and DIONISIO P. LIM, SR., respondent, LUCILLE CHIONGBIAN-SOLON, intervenor.

DAVIDE, JR., CJ.: Challenged in this case for certiorari with a prayer for preliminary injunction are the Resolution of 6 May 1998 1 of the
Second Division of the Commission on Elections (hereafter COMELEC), declaring petitioner Juan Domino (hereafter DOMINO) disqualified as candidate for representative of the Lone Legislative District of the Province of Sarangani in the 11 May 1998 elections, and the Decision of 29 May 1998 2 of the COMELEC en banc denying DOMINO's motion for reconsideration.

The antecedents are not disputed.

1wphi 1.nt

On 25 March 1998, DOMINO filed his certificate of candidacy for the position of Representative of the Lone Legislative District of the Province of Sarangani indicating in item nine (9) of his certificate that he had resided in the constituency where he seeks to be elected for one (1) year and two (2) months immediately preceding the election. 3 On 30 March 1998, private respondents Narciso Ra. Grafilo, Jr., Eddy B. Java, Juan P. Bayonito, Jr., Rosario Samson and Dionisio P. Lim, Sr., fied with the COMELEC a Petition to Deny Due Course to or Cancel Certificate of Candidacy, which was docketed as SPA No. 98-022 and assigned to the Second Division of the COMELEC. Private respondents alleged that DOMINO, contrary to his declaration in the certificate of candidacy, is not a resident, much less a registered voter, of the province of Sarangani where he seeks election. To substantiate their allegations, private respondents presented the following evidence: 1. Annex "A" the Certificate of Candidacy of respondent for the position of Congressman of the Lone District of the Province of Sarangani filed with the Office of the Provincial Election Supervisor of Sarangani on March 25, 1998, where in item 4 thereof he wrote his date of birth as December 5, 1953; in item 9, he claims he have resided in the constituency where he seeks election for one (1) year and two (2) months; and, in item 10, that he is registered voter of Precinct No. 14A-1, Barangay Poblacion, Alabel, Sarangani; 2. Annex "B" Voter's Registration Record with SN 31326504 dated June 22, 1997 indicating respondent's registration at Precinct No. 4400-A, Old Balara, Quezon City; 3. Annex "C" Respondent's Community Tax Certificate No. 11132214C dated January 15, 1997; 4. Annex "D" Certified true copy of the letter of Herson D. Dema-ala, Deputy Provincial & Municipal Treasurer of Alabel, Sarangani, dated February 26, 1998, addressed to Mr. Conrado G. Butil, which reads: In connection with your letter of even date, we are furnishing you herewith certified xerox copy of the triplicate copy of COMMUNITY TAX CERTIFICATE NO. 11132214C in the name of Juan Domino. Furthermore, Community Tax Certificate No. 11132212C of the same stub was issued to Carlito Engcong on September 5, 1997, while Certificate No. 11132213C was also issued to Mr. Juan Domino but was cancelled and serial no. 11132215C was issued in the name of Marianita Letigio on September 8, 1997. 5. Annex "E" The triplicate copy of the Community Tax Certificate No. 11132214C in the name of Juan Domino dated September 5, 1997; 6. Annex "F" Copy of the letter of Provincial Treasurer Lourdes P. Riego dated March 2, 1998 addressed to Mr. Herson D. Dema-ala, Deputy Provincial Treasurer and Municipal Treasurer of Alabel, Sarangani, which states: For easy reference, kindly turn-over to the undersigned for safekeeping, the stub of Community Tax Certificate containing Nos. 11132201C-11132250C issued to you on June 13, 1997 and paid under Official Receipt No. 7854744. Upon request of Congressman James L. Chiongbian.

7. Annex "G" Certificate of Candidacy of respondent for the position of Congressman in the 3rd District of Quezon City for the 1995 elections filed with the Office of the Regional Election Director, National Capital Region, on March 17, 1995, where, in item 4 thereof, he wrote his birth date as December 22, 1953; in item 8 thereof his "residence in the constituency where I seek to be elected immediately preceding the election" as 3 years and 5 months; and, in item 9, that he is a registered voter of Precinct No. 182, Barangay Balara, Quezon City; 8. Annex "H" a copy of the APPLICATION FOR TRANSFER OF REGISTRATION RECORDS DUE TO CHANGE OF RESIDENCE of respondent dated August 30, 1997 addressed to and received by Election Officer Mantil Alim, Alabel, Sarangani, on September 22, 1997, stating among others, that "[T]he undersigned's previous residence is at 24 Bonifacio Street, Ayala Heights, Quezon City, III District, Quezon City; wherein he is a registered voter" and "that for business and residence purposes, the undersigned has transferred and conducts his business and reside at Barangay Poblacion, Alabel, Province of Sarangani prior to this application;" 9. Annex "I" Copy of the SWORN APPLICATION FOR OF CANCELLATION OF THE VOTER'S [TRANSFER OF] PREVIOUS REGISTRATION of respondent subscribed and sworn to on 22 October 1997 before Election Officer Mantil Allim at Alabel, Sarangani. 4 For his defense, DOMINO maintains that he had complied with the one-year residence requirement and that he has been residing in Sarangani since January 1997. In support of the said contention, DOMINO presented before the COMELEC the following exhibits, to wit: 1. Annex "1" Copy of the Contract of Lease between Nora Dacaldacal as Lessor and Administrator of the properties of deceased spouses Maximo and Remedios Dacaldacal and respondent as Lessee executed on January 15, 1997, subscribed and sworn to before Notary Public Johnny P. Landero; 2. Annex "2" Copy of the Extra-Judicial Settlement of Estate with Absolute Deed of sale executed by and between the heirs of deceased spouses Maximo and Remedios Dacaldacal, namely: Maria Lourdes, Jupiter and Beberlie and the respondent on November 4, 1997, subscribed and sworn to before Notary Public Jose A. Alegario; 3. Annex "3" True Carbon Xerox copy of the Decision dated January 19, 1998, of the Metropolitan Trial Court of Metro Manila, Branch 35, Quezon City, in Election Case NO. 725 captioned as "In the Matter of the Petition for the Exclusion from the List of voters of Precinct No. 4400-A Brgy. Old Balara, Quezon City, Spouses Juan and Zorayda Domino, Petitioners, -versus- Elmer M. Kayanan, Election Officer, Quezon City, District III, and the Board of Election Inspectors of Precinct No. 4400-A, Old Balara, Quezon City, Respondents." The dispositive portion of which reads: 1. Declaring the registration of petitioners as voters of Precinct No. 4400-A, Barangay Old Balara, in District III Quezon City as completely erroneous as petitioners were no longer residents of Quezon City but of Alabel, Sarangani where they have been residing since December 1996; 2. Declaring this erroneous registration of petitioners in Quezon City as done in good faith due to an honest mistake caused by circumstances beyond their control and without any fault of petitioners; 3. Approving the transfer of registration of voters of petitioners from Precint No. 4400-A of Barangay Old Balara, Quezon City to Precinct No. 14A1 of Barangay Poblacion of Alabel, Sarangani; and 4. Ordering the respondents to immediately transfer and forward all the election/voter's registration records of the petitioners in Quezon City to the Election Officer, the Election Registration Board and other Comelec Offices of Alabel, Sarangani where the petitioners are obviously qualified to excercise their respective rights of suffrage. 4. Annex "4" Copy of the Application for Transfer of Registration Records due to Change of Residence addressed to Mantil Alim, COMELEC Registrar, Alabel, Sarangani, dated August 30, 1997.

5. Annex "5" Certified True Copy of the Notice of Approval of Application, the roster of applications for registration approved by the Election Registration Board on October 20, 1997, showing the spouses Juan and Zorayda Bailon Domino listed as numbers 111 and 112 both under Precinct No. 14A1, the last two names in the slate indicated as transferees without VRR numbers and their application dated August 30, 1997 and September 30, 1997, respectively. 6. Annex "6" same as Annex "5" 7. Annex "6-a" Copy of the Sworn Application for Cancellation of Voter's Previous Registration (Annex "I", Petition); 8. Annex "7" Copy of claim card in the name of respondent showing his VRR No. 31326504 dated October 20, 1997 as a registered voter of Precinct No. 14A1, Barangay Poblacion, Alabel, Sarangani; 9. Annex "7-a" Certification dated April 16, 1998, issued by Atty. Elmer M. Kayanan, Election Officer IV, District III, Quezon City, which reads: This is to certify that the spouses JUAN and ZORAYDA DOMINO are no longer registered voters of District III, Quezon City. Their registration records (VRR) were transferred and are now in the possession of the Election Officer of Alabel, Sarangani. This certification is being issued upon the request of Mr. JUAN DOMINO. 10. Annex "8" Affidavit of Nora Dacaldacal and Maria Lourdes Dacaldacal stating the circumstances and incidents detailing their alleged acquaintance with respondent. 11. Annexes "8-a", "8-b", "8-c" and "8-d" Copies of the uniform affidavits of witness Myrna Dalaguit, Hilario Fuentes, Coraminda Lomibao and Elena V. Piodos subscribed and sworn to before Notary Public Bonifacio F. Doria, Jr., on April 18, 1998, embodying their alleged personal knowledge of respondent's residency in Alabel, Sarangani; 12. Annex "8-e" A certification dated April 20, 1998, subscribed and sworn to before Notary Public Bonifacio, containing a listing of the names of fifty-five (55) residents of Alabel, Sarangani, declaring and certifying under oath that they personally know the respondent as a permanent resident of Alabel, Sarangani since January 1997 up to present; 13. Annexes "9", "9-a" and "9-b" Copies of Individual Income Tax Return for the year 1997, BIR form 2316 and W-2, respectively, of respondent; and, 14. Annex "10" The affidavit of respondent reciting the chronology of events and circumstances leading to his relocation to the Municipality of Alabel, Sarangani, appending Annexes "A", "B", "C", "D", "D-1", "E", "F", "G" with sub-markings "G-1" and "G-2" and "H" his CTC No. 111`32214C dated September 5, 1997, which are the same as Annexes "1", "2", "4", "5", "6-a", "3", "7", "9" with sub-markings "9-a" and "9b" except Annex "H". 5 On 6 May 1998, the COMELEC 2nd Division promulgated a resolution declaring DOMINO disqualified as candidate for the position of representative of the lone district of Sarangani for lack of the one-year residence requirement and likewise ordered the cancellation of his certificate of candidacy, on the basis of the following findings: What militates against respondent's claim that he has met the residency requirement for the position sought is his own Voter's Registration Record No. 31326504 dated June 22, 1997 [Annex "B", Petition] and his address indicated as 24 Bonifacio St., Ayala Heights, Old Balara, Quezon City. This evidence, standing alone, negates all his protestations that he established residence at Barangay Poblacion, Alabel, Sarangani, as early as January 1997. It is highly improbable, nay incredible, for respondent who previously ran for the same position in the 3rd Legislative District of Quezon City during the elections of 1995 to unwittingly forget the residency requirement for the office sought. Counting, therefore, from the day after June 22, 1997 when respondent registered at Precinct No. 4400-A, up to and until the day of the elections on May 11, 1998, respondent clearly lacks the one (1) year residency requirement provided for candidates for Member of the House of Representatives under Section 6, Article VI of the Constitution.

All told, petitioner's evidence conspire to attest to respondent's lack of residence in the constituency where he seeks election and while it may be conceded that he is a registered voter as contemplated under Section 12 of R.A. 8189, he lacks the qualification to run for the position of Congressman for the Lone District of the Province of Sarangani. 6 On 11 May 1998, the day of the election, the COMELEC issued Supplemental Omnibus Resolution No. 3046, ordering that the votes cast for DOMINO be counted but to suspend the proclamation if winning, considering that the Resolution disqualifying him as candidate had not yet become final and executory. 7 The result of the election, per Statement of Votes certified by the Chairman of the Provincial Board of Canvassers,8 shows that DOMINO garnered the highest number of votes over his opponents for the position of
Congressman of the Province of Sarangani.

On 15 May 1998, DOMINO filed a motion for reconsideration of the Resolution dated 6 May 1998, which was denied by the COMELEC en banc in its decision dated 29 May 1998. Hence, the present Petition for Certiorari with prayer for Preliminary Mandatory Injunction alleging, in the main, that the COMELEC committed grave abuse of discretion amounting to excess or lack of jurisdiction when it ruled that he did not meet the one-year residence requirement. On 14 July 1998, acting on DOMINO's Motion for Issuance of Temporary Restraining Order, the Court directed the parties to maintain the status quo prevailing at the time of the filing of the instant petition. 9 On 15 September 1998, Lucille L. Chiongbian-Solon, (hereafter INTERVENOR), the candidate receiving the second highest number of votes, was allowed by the Court to Intervene. 10 INTERVENOR in her Motion for Leave to Intervene
and in her Comment in Intervention 11 is asking the Court to uphold the disqualification of petitioner Juan Domino and to proclaim her as the duly elected representative of Sarangani in the 11 May 1998 elections.

Before us DOMINO raised the following issues for resolution, to wit: a. Whether or not the judgment of the Metropolitan Trial Court of Quezon City declaring petitioner as resident of Sarangani and not of Quezon City is final, conclusive and binding upon the whole world, including the Commission on Elections. b. Whether or not petitioner herein has resided in the subject congressional district for at least one (1) year immediately preceding the May 11, 1998 elections; and c. Whether or not respondent COMELEC has jurisdiction over the petition a quo for the disqualification of petitioner. 12 The first issue. The contention of DOMINO that the decision of the Metropolitan Trial Court of Quezon City in the exclusion proceedings declaring him a resident of the Province of Sarangani and not of Quezon City is final and conclusive upon the COMELEC cannot be sustained. The COMELEC has jurisdiction as provided in Sec. 78, Art. IX of the Omnibus Election Code, over a petition to deny due course to or cancel certificate of candidacy. In the exercise of the said jurisdiction, it is within the competence of the COMELEC to determine whether false representation as to material facts was made in the certificate of candidacy, that will include, among others, the residence of the candidate. The determination of the Metropolitan Trial Court of Quezon City in the exclusion proceedings as to the right of DOMINO to be included or excluded from the list of voters in the precinct within its territorial jurisdicton, does not preclude the COMELEC, in the determination of DOMINO's qualification as a candidate, to pass upon the issue of compliance with the residency requirement. The proceedings for the exclusion or inclusion of voters in the list of voters are summary in character. Thus, the factual findings of the trial court and its resultant conclusions in the exclusion proceedings on matters other than the right to vote in the precinct within its territorial jurisdiction are not conclusive upon the COMELEC. Although the court in inclusion or exclusion proceedings may pass upon any question necessary to decide the issue raised including the questions of citizenship and residence of the challenged voter, the authority to order the inclusion in or exclusion from the list of voters necessarily caries with it the power to inquire into and settle all matters essential to the exercise of said authority. However, except for the right to remain in the list of voters or for being excluded therefrom for the particular election in relation to which the proceedings had been held, a decision in an exclusion or inclusion proceeding, even if final and unappealable, does not acquire the nature of res judicata. 13 In this sense, it does not
operate as a bar to any future action that a party may take concerning the subject passed upon in the proceeding. 14 Thus, a decision in an exclusion proceeding would neither be conclusive on the voter's political status, nor bar subsequent proceedings on his right to be registered as a voter in any other election. 15

Thus, in Tan Cohon v. Election Registrar 16 we ruled that:

. . . It is made clear that even as it is here held that the order of the City Court in question has become final, the same does not constitute res adjudicata as to any of the matters therein contained. It is ridiculous to suppose that such an important and intricate matter of citizenship may be passed upon and determined with finality in such a summary and peremptory proceeding as that of inclusion and exclusion of persons in the registry list of voters. Even if the City Court had granted appellant's petition for inclusion in the permanent list of voters on the allegation that she is a Filipino citizen qualified to vote, her alleged Filipino citizenship would still have been left open to question. Moreover, the Metropolitan Trial Court of Quezon City in its 18 January decision exceeded its jurisdiction when it declared DOMINO a resident of the Province of Sarangani, approved and ordered the transfer of his voter's registration from Precinct No. 4400-A of Barangay Old Balara, Quezon City to precinct 14A1 of Barangay Poblacion, Alabel, Sarangani. It is not within the competence of the trial court, in an exclusion proceedings, to declare the challenged voter a resident of another municipality. The jurisdiction of the lower court over exclusion cases is limited only to determining the right of voter to remain in the list of voters or to declare that the challenged voter is not qualified to vote in the precint in which he is registered, specifying the ground of the voter's disqualification. The trial court has no power to order the change or transfer of registration from one place of residence to another for it is the function of the election Registration Board as provided under Section 12 of R.A. No. 8189. 17 The only effect of the
decision of the lower court excluding the challenged voter from the list of voters, is for the Election Registration Board, upon receipt of the final decision, to remove the voter's registration record from the corresponding book of voters, enter the order of exclusion therein, and thereafter place the record in the inactive file. 18

Finally, the application of the rule on res judicata is unavailing. Identity of parties, subject matter and cause of action are indispensable requirements for the application of said doctrine. Neither herein Private Respondents nor INTERVENOR, is a party in the exclusion proceedings. The Petition for Exclusion was filed by DOMINDO himself and his wife, praying that he and his wife be excluded from the Voter's List on the ground of erroneous registration while the Petition to Deny Due Course to or Cancel Certificate of Candidacy was filed by private respondents against DOMINO for alleged false representation in his certificate of candidacy. For the decision to be a basis for the dismissal by reason of res judicata, it is essential that there must be between the first and the second action identity of parties, identity of subject matter and identity of causes of action. 19 In the present case, the aforesaid essential
requisites are not present. In the case of Nuval v. Guray, et al., 20 the Supreme Court in resolving a similar issue ruled that:

The question to be solved under the first assignment of error is whether or not the judgment rendered in the case of the petition for the exclusion of Norberto Guray's name from the election list of Luna, isres judicata, so as to prevent the institution and prosecution of an action in quo warranto, which is now before us. The procedure prescribed by section 437 of the Administrative Code, as amended by Act No. 3387, is of a summary character and the judgment rendered therein is not appealable except when the petition is tried before the justice of the peace of the capital or the circuit judge, in which case it may be appealed to the judge of first instance, with whom said two lower judges have concurrent jurisdiction. The petition for exclusion was presented by Gregorio Nuval in his dual capacity as qualified voter of the municipality of Luna, and as a duly registered candidate for the office of president of said municipality, against Norberto Guray as a registered voter in the election list of said municipality. The present proceeding of quo warranto was interposed by Gregorio Nuval in his capacity as a registered candidate voted for the office of municipal president of Luna, against Norberto Guray, as an elected candidate for the same office. Therefore, there is no identity of parties in the two cases, since it is not enough that there be an identity of persons, but there must be an identity of capacities in which said persons litigate. (Art. 1259 of the Civil Code; Bowler vs. Estate of Alvarez, 23 Phil., 561; 34 Corpus Juris, p. 756, par. 1165) In said case of the petition for the exclusion, the object of the litigation, or the litigious matter was the exclusion of Norberto Guray as a voter from the election list of the municipality of Luna, while in the present que warranto proceeding, the object of the litigation, or the litigious matter is his exclusion or expulsion from the office to which he has been elected. Neither does there exist, then, any identity in the object of the litigation, or the litigious matter. In said case of the petition for exclusion, the cause of action was that Norberto Guray had not the six months' legal residence in the municipality of Luna to be a qualified voter thereof, while in the present proceeding of quo warranto, the cause of action is that Norberto Guray has not the one year's legal residence required for eligibility to the office of municipal president of Luna. Neither does there exist therefore, identity of causes of action. In order that res judicata may exist the following are necessary: (a) identity of parties; (b) identity of things; and (c) identity of issues (Aquino v. Director of Lands, 39 Phil. 850). And as in the case of the petition for excluision and in the present quo warranto proceeding, as there is no identity of parties, or of things or litigious matter, or of issues or causes of action, there is no res judicata.

The Second Issue. Was DOMINO a resident of the Province of Sarangani for at least one year immediately preceding the 11 May 1998 election as stated in his certificate of candidacy? We hold in the negative. It is doctrinally settled that the term "residence," as used in the law prescribing the qualifications for suffrage and for elective office, means the same thing as "domicile," which imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. 21 "Domicile" denotes a fixed
permanent residence to which, whenever absent for business, pleasure, or some other reasons, one intends to return.22 "Domicile" is a question of intention and circumstances. In the consideration of circumstances, three rules must be borne in mind, namely: (1) that a man must have a residence or domicile somewhere; (2) when once established it remains until a new one is acquired; and (3) a man can have but one residence or domicile at a time. 23

Records show that petitioner's domicile of origin was Candon, Ilocos Sur 24 and that sometime in 1991, he acquired a new domicile of choice at 24 Bonifacio St. Ayala Heights, Old Balara,
Quezon City, as shown by his certificate of candidacy for the position of representative of the 3rd District of Quezon City in the May 1995 election. Petitioner is now claiming that he had effectively abandoned his "residence" in Quezon City and has established a new "domicile" of choice at the Province of Sarangani.

A person's "domicile" once established is considered to continue and will not be deemed lost until a new one is established. 25 To successfully effect a change of domicile one must demonstrate an actual removal or an actual change
of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one and definite acts which correspond with the purpose. 26 In other words, there must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual. 27

It is the contention of petitioner that his actual physical presence in Alabel, Sarangani since December 1996 was sufficiently established by the lease of a house and lot located therein in January 1997 and by the affidavits and certifications under oath of the residents of that place that they have seen petitioner and his family residing in their locality. While this may be so, actual and physical is not in itself sufficient to show that from said date he had transferred his residence in that place. To establish a new domicile of choice, personal presence in the place must be coupled with conduct indicative of that intention. While "residence" simply requires bodily presence in a given place, "domicile" requires not only such bodily presence in that place but also a declared and probable intent to make it one's fixed and permanent place of abode, one's home. 28 As a general rule, the principal elements of domicile, physical presence in the locality involved and intention to adopt it as a domicile, must concur in order to establish a new domicile. No change of domicile will result if either of these elements is absent. Intention to acquire a domicile without actual residence in the locality does not result in acquisition of domicile, nor does the fact of physical presence without intention. 29 The lease contract entered into sometime in January 1997, does not adequately support a change of domicile. The lease contract may be indicative of DOMINO's intention to reside in Sarangani but it does not engender the kind of permanency required to prove abandonment of one's original domicile. The mere absence of individual from his permanent residence, no matter how long, without the intention to abandon it does not result in loss or change of domicile. 30 Thus the date of the contract of lease of a house and lot located in the province of Sarangani, i.e., 15 January
1997, cannot be used, in the absence of other circumstances, as the reckoning period of the one-year residence requirement.

Further, Domino's lack of intention to abandon his residence in Quezon City is further strengthened by his act of registering as voter in one of the precincts in Quezon City. While voting is not conclusive of residence, it does give rise to a strong presumption of residence especially in this case where DOMINO registered in his former barangay. Exercising the right of election franchise is a deliberate public assertion of the fact of residence, and is said to have decided preponderance in a doubtful case upon the place the elector claims as, or believes to be, his residence. 31 The fact that a party continously voted in a particular locality is a strong factor in assisting to determine the
status of his domicile. 32

His claim that his registration in Quezon City was erroneous and was caused by events over which he had no control cannot be sustained. The general registration of voters for purposes of the May 1998 elections was scheduled for two (2) consecutive weekends, viz.: June 14, 15, 21, and 22. 33 While, Domino's intention to establish residence in Sarangani can be gleaned from the fact that be bought the house he was renting on November 4, 1997, that he sought cancellation of his previous registration in Qezon City on 22 October 1997, 34 and that he applied for transfer of registration from Quezon City to Sarangani by reason of change of
residence on 30 August 1997, 35 DOMINO still falls short of the one year residency requirement under the Constitution.

In showing compliance with the residency requirement, both intent and actual presence in the district one intends to represent must satisfy the length of time prescribed by the fundamental law. 36 Domino's failure to do so rendered him
ineligible and his election to office null and void. 37

The Third Issue. DOMINO's contention that the COMELEC has no jurisdiction in the present petition is bereft of merit. As previously mentioned, the COMELEC, under Sec. 78, Art. IX of the Omnibus Election Code, has jurisdiction over a petition to deny due course to or cancel certificate of candidacy. Such jurisdiction continues even after election, if for any reason no final judgment of disqualification is rendered before the election, and the candidate facing disqualification is voted for and receives the highest number of votes 38 and provided further that the winning candidate
has not been proclaimed or has taken his oath of office. 39

It has been repeatedly held in a number of cases, that the House of Representatives Electoral Tribunal's sole and exclusive jurisdiction over all contests relating to the election, returns and qualifications of members of Congress as provided under Section 17 of Article VI of the Constitution begins only after a candidate has become a member of the House of Representatives. 40 The fact of obtaining the highest number of votes in an election does not automatically vest the position in the winning candidate. 41 A candidate must be proclaimed and must have taken his oath of office before he can be
considered a member of the House of Representatives.

In the instant case, DOMINO was not proclaimed as Congressman-elect of the Lone Congressional District of the Province of Sarangani by reason of a Supplemental Omnibus Resolution issued by the COMELEC on the day of the election ordering the suspension of DOMINO's proclamation should he obtain the winning number of votes. This resolution was issued by the COMELEC in view of the non-finality of its 6 May 1998 resolution disqualifying DOMINO as candidate for the position. Cosidering that DOMINO has not been proclaimed as Congressman-elect in the Lone Congressional District of the Province of Sarangani he cannot be deemed a member of the House of Representatives. Hence, it is the COMELEC and not the Electoral Tribunal which has jurisdiction over the issue of his ineligibility as a candidate. 42 Issue raised by INTERVENOR. After finding that DOMINO is disqualified as candidate for the position of representative of the province of Sarangani, may INTERVENOR, as the candidate who received the next highest number of votes, be proclaimed as the winning candidate? It is now settled doctrine that the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified. 43 In every election, the people's choice is the paramount
consideration and their expressed will must, at all times, be given effect. When the majority speaks and elects into office a candidate by giving the highest number of votes cast in the election for that office, no one can be declared elected in his place. 44

It would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. 45 To simplistically assume that the second placer would have received the other votes would be to substitute
our judgment for the mind of the voters. He could not be considered the first among qualified candidates because in a field which excludes the qualified candidate, the conditions would have substantially changed. 46

Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. 47 The effect of a decision declaring a person ineligible to hold an office is only that the election fails entirely, that the wreath of victory cannot be transferred 48 from the disqualified winner to the repudiated loser because the law then as
now only authorizes a declaration of election in favor of the person who has obtained a plurality of votes 49 and does not entitle the candidate receiving the next highest number of votes to be declared elected. In such case, the electors have failed to make a choice and the election is a nullity. 50 To allow the defeated and repudiated candidate to take over the elective position despite his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine the importance and meaning of democracy and the people's right to elect officials of their choice. 51

INTERVENOR's plea that the votes cast in favor of DOMINO be considered stray votes cannot be sustained. INTERVENOR's reliance on the opinion made in the Labo, Jr. case 52 to wit: if the electorate, fully aware in fact and in
law of a candidate's disqualification so as to bring such awareness within the realm of notoriety, would nevertheless cast their votes in favor of the ineligible candidate, the electorate may be said to have waived the validity and efficacy of their

votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected, is misplaced.

Contrary to the claim of INTERVENOR, petitioner was not notoriously known by the public as an ineligible candidate. Although the resolution declaring him ineligible as candidate was rendered before the election, however, the same is not yet final and executory. In fact, it was no less than the COMELEC in its Supplemental Omnibus Resolution No. 3046 that allowed DOMINO to be voted for the office and ordered that the votes cast for him be counted as the Resolution declaring him ineligible has not yet attained finality. Thus the votes cast for DOMINO are presumed to have been cast in the sincere belief that he was a qualified candidate, without any intention to misapply their franchise. Thus, said votes can not be treated as stray, void, or meaningless. 53 WHEREFORE, the instant petition is DISMISSED. The resolution dated 6 May 1998 of the COMELEC 2nd Division and the decision dated 29 May 1998 of the COMELEC En Banc, are hereby AFFIRMED.
1wphi 1.nt

SO ORDERED.

G.R. No. 187478

December 21, 2009

Representative DANILO RAMON S. FERNANDEZ, Petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and JESUS L. VICENTE, Respondents. DECISION LEONARDO-DE CASTRO, J.: This petition for certiorari and prohibition filed under Rule 65 of the Rules of Court stems from the Decision1 in HRET CASE No. 07-034 for quo warranto entitled Jesus L. Vicente v. Danilo Ramon S. Fernandez promulgated by the House of Representatives Electoral Tribunal (HRET) on December 16, 2008 as well as Minute Resolution No. 09080 promulgated on April 30, 2009, likewise issued by the HRET, denying petitioners Motion for Reconsideration. The dispositive portion of the questioned Decision reads as follows: WHEREFORE, the Tribunal DECLARES respondent Danilo Ramon S. Fernandez ineligible for the Office of Representative of [the] First District of Laguna for lack of residence in the district and [ORDERS] him to vacate his office. As soon as this Resolution becomes final and executory, let notices be sent to the President of the Philippines, the House of Representatives through the Speaker, and the Commission on Audit through its Chairman, pursuant to Rule 96 of the 2004 Rules of the House of Representatives Electoral Tribunal. No pronouncement as to costs. SO ORDERED.2 On December 22, 2008, petitioner Danilo Ramon S. Fernandez (petitioner) filed a Motion for Reconsideration of the above-quoted Decision. The HRET, in the questioned Resolution, found petitioners Motion to be "bereft of new issues/ arguments that [had] not been appropriately resolved"3 in the Decision. Petitioner thus applied for relief to this Court, claiming that the questioned Decision and Resolution should be declared null and void for having been respectively issued with grave abuse of discretion amounting to lack of or in excess of jurisdiction, and praying for the issuance of a writ of prohibition to enjoin and prohibit the HRET from implementing the questioned Decision and Resolution.4 The antecedent facts are clear and undisputed. Petitioner filed for candidacy as Representative of the First Legislative District of the Province of Laguna in the May 14, 2007 elections. In his Certificate of Candidacy (COC), he indicated his complete/exact address as "No. 13 Maharlika St., Villa Toledo Subdivision, Barangay Balibago, Sta. Rosa City, Laguna" (alleged Sta. Rosa residence).5 Private respondent Jesus L. Vicente (private respondent) filed a "Petition to Deny Due Course to and/or Cancel Certificate of Candidacy and Petition for Disqualification" before the Office of the Provincial Election Supervisor of Laguna. This was forwarded to the Commission on Elections (COMELEC) and docketed therein as SPA No. 07-046 (PES). Private respondent sought the cancellation of petitioners COC and the latters disqualification as a candidate on the ground of an alleged material misrepresentation in his COC regarding his place of residence, because during past elections, he had declared Pagsanjan, Laguna as his address, and Pagsanjan was located in the Fourth Legislative District of the Province of Laguna. Private respondent likewise claimed that petitioner maintained another house in Cabuyao, Laguna, which was also outside the First District.6 The COMELEC (First Division) dismissed said petition for lack of merit.7 Petitioner was proclaimed as the duly elected Representative of the First District of Laguna on June 27, 2007, having garnered a total of 95,927 votes, winning by a margin of 35,000 votes over the nearest candidate.8 On July 5, 2007, private respondent filed a petition for quo warranto before the HRET, docketed as HRET CASE No. 07-034, praying that petitioner be declared ineligible to hold office as a Member of the House of Representatives representing the First Legislative District of the Province of Laguna, and that petitioners election and proclamation be annulled and declared null and void.9 Private respondents main ground for the quo warranto petition was that petitioner lacked the required one-year residency requirement provided under Article VI, Section 6 of the 1987 Constitution. In support of his petition, private respondent argued that petitioner falsely declared under oath: (1) his alleged Sta. Rosa residence; (2) the period of his residence in the legislative district before May 14, 2007, which he indicated as one year and two months; and (3) his eligibility for the office where he was seeking to be elected. Private respondent presented the testimony of a certain Atty. Noel T. Tiampong, who stated that petitioner is not from the alleged Sta. Rosa residence but a resident

of Barangay Pulo, Cabuyao, Laguna; as well as the respective testimonies of Barangay Balibago Health Workers who attested that they rarely, if ever, saw respondent in the leased premises at the alleged Sta. Rosa residence; and other witnesses who testified that contrary to the misrepresentations of petitioner, he is not a resident of the alleged Sta. Rosa residence. A witness testified that petitioner attempted to coerce some of the other witnesses to recant their declarations and change their affidavits. Finally, private respondent presented as witness the lawyer who notarized the Contract of Lease dated March 8, 2007 between petitioner as lessee and Bienvenido G. Asuncion as lessor.10 Petitioner, as respondent in HRET Case No. 07-034, presented as his witnesses residents of Villa de Toledo who testified that they had seen respondent and his family residing in their locality, as well as Bienvenido G. Asuncion who testified that petitioner is the lessee in Unit No. 13 Block 1 Lot I, Maharlika St., Villa de Toledo Subdivision, Brgy. Balibago, Sta. Rosa City, Laguna. Petitioner likewise presented Mr. Joseph Wade, President of South Point Homeowners Association of Cabuyao, Laguna, as well as Engr. Larry E. Castro (Castro), who testified that since February 2006 up to the present, petitioner had no longer been residing in his property located at Block 28, Lot 18, South Point Subdivision, Cabuyao, Laguna, and that said property was being offered for sale and temporarily being used by Castro, together with some security men of petitioner and employees of Rafters Music Lounge owned by petitioner.11 Petitioner testified that he had been a resident of Sta. Rosa even before February 2006; that he owned property in another Sta. Rosa subdivision (Bel-Air); that he and his wife had put up a business therein, the "RAFTERS" restaurant/ bar; and that he had prior residence in another place also at Sta. Rosa as early as 2001.12 Since the HRET ruled in favor of private respondent, this petition was filed before us. In petitioners assignment of errors, he alleges that the HRET grievously erred and committed grave abuse of discretion: 1. In not placing on the quo warranto petitioner Jesus L. Vicente the burden of proving that then respondent (now petitioner) Fernandez is not a qualified candidate for Representative of the First District of the Province of Laguna; 2. When it disregarded the ruling of a co-equal tribunal in SPA No. 07-046; 3. When it added a property qualification to a Member of Congress; 4. When it determined that the petitioner failed to comply with the one (1) year residency requirement based on the contract of lease; 5. When it completely disregarded the testimonies of material witnesses; 6. When it failed to consider the intent of the petitioner to transfer domicile based on the totality of the evidence adduced; and 7. When it failed to find the petitioner in HRET Case No. 07-034 guilty of forum-shopping.13 On the first assignment of error, petitioner questions the following pronouncement of the HRET in its decision: In the case before us, petitioner has clearly asserted, and respondent does not deny, that his domicile of origin is Pagsanjan in the Fourth District of Laguna. Hence, the burden is now on respondent to prove that he has abandoned his domicile of origin, or since his birth, where he formerly ran for provincial Board Member of Laguna in 1998, for Vice-Governor of Laguna in 2001 and for Governor of Laguna in 2004. In all his Certificates of Candidacy when he ran for these positions, he indicated under oath that his domicile or permanent residence was in Pagsanjan in the Fourth District of Laguna, not in the First District where he later ran in the last elections.14 Petitioner contends that "it is a basic evidentiary rule that the burden of proof is on he who alleges, and he who relies on such an allegation as his cause of action should prove the same."15 Since private respondent is the party alleging that petitioner is not eligible for his position, it is therefore incumbent on the former, who filed the quo warranto case before the HRET, to prove such allegation. He cites in support of his contention Sec. 1, Rule 131 of the Rules of Court, to wit: SECTION 1. Burden of proof . Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. Petitioner avers that private respondent failed to establish his claim and to adduce evidence sufficient to overcome petitioners eligibility to be a candidate for Representative of the First District of Laguna. On the second assignment of error, petitioner submits that the HRET should have been "guided and/or cautioned" by the COMELECs dispositions in SPA No. 07-046, wherein he was adjudged as qualified to run for the position of Congressman of the First District of Laguna by an agency tasked by law and the Constitution to ascertain the qualifications of candidates before election. Petitioner claims that the HRET should have respected the findings of the COMELEC and should have discreetly denied the petition.

On the third assignment of error, petitioner argues that under Article V, Section 1, of the 1987 Constitution, any citizen of the Philippines who is a qualified voter may likewise, if so qualified under the appertaining law and the constitution, be able to run and be voted for as a candidate for public office. Said provision reads: SECTION 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage.
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Petitioner alleges that in the questioned Decision, the HRET added a new qualification requirement for candidates seeking election to the position of Member of the House of Representatives, and that is, they must be real property owners in the legislative district where they seek election. On the fourth assignment of error, petitioner addresses private respondents arguments against the contract of lease that he presented as part of the proof of his compliance with the residency requirement. Petitioner asserts that the nomenclature used by contracting parties to describe a contract does not determine its nature, but the decisive factor is the intention of the parties to a contract as shown by their conduct, words, actions, and deeds prior to, during and after executing the agreement.16 Petitioner claims that he has presented ample proof of his residency in terms of evidence more numerous and bearing more weight and credibility than those of private respondent. He proceeds to highlight some of the evidence he offered in the quo warranto case that allegedly prove that his transfer of residence and intention to reside in Sta. Rosa were proven by his stay in Villa de Toledo, to wit: (1) even earlier than 2006, he had purchased a house and lot in Bel-Air Subdivision in Sta. Rosa which he rented out because he was not yet staying there at that time; (2) he sent his children to schools in Sta. Rosa as early as 2002; and (3) he and his wife established a restaurant business there in 2003. Petitioner contends that when he and his family moved to Sta. Rosa by initially renting a townhouse in Villa de Toledo, it cannot be said that he did this only in order to run for election in the First Legislative District.17 As regards the alleged infirmities characterizing the execution of the contract of lease and the renewal of said contract of lease, petitioner contends that these are not material since the lessor, Bienvenido Asuncion, affirmed his stay in his townhouse; the neighbors and other barangay personalities confirmed his and his familys stay in their area; and petitioner has continued actual residence in Sta. Rosa from early 2006 to the present. Petitioner claims that all these prove that he had effectively changed his residence and could therefore likewise transfer his voters registration from Pagsanjan to Sta. Rosa under Sec. 12 of R.A. No. 8189.18 Petitioner also alleges that he had become qualified to seek elective office in his new place of residence and registration as a voter. To further prove that he has made Sta. Rosa his domicile of choice from early 2006 to the present, petitioner points out that he and his wife had purchased a lot in the same area, Villa de Toledo, on April 21, 2007, built a house thereon, and moved in said house with their family. Regarding the non-notarization of the contract of lease raised by private respondent, petitioner avers that this "does not necessarily nullify nor render the parties transaction void ab initio."19 On the fifth assignment of error, petitioner alleges that the HRET relied on private respondents witnesses in negating petitioners claim that he had validly resided at the alleged Sta. Rosa residence for more than one year and two months prior to the May 14, 2007 elections, and did not touch on the testimonies of his witnesses. The questioned Decision pointed out petitioners alleged non-appearance in the day-to-day activities of the Homeowners Association and considered this as failure to prove that he is a resident of Villa de Toledo, without considering the fact that private respondent failed to discharge the burden of proof in support of his indictment against petitioner. On the sixth assignment of error, petitioner claims that the questioned Decision was arrived at based on the perceived weakness of his evidence and arguments as respondent, instead of the strength of private respondents own evidence and arguments in his quo warranto petition. On the seventh and last assignment of error, petitioner alleges that the matters raised in HRET Case No. 07-034 were no different from the ones raised by private respondent before the COMELEC in SPA No. 07-046 (PES); thus, private respondents petition should have been dismissed by the HRET for forum-shopping. In his Comment dated June 22, 2009, private respondent summarized the issues raised in petitioners assignment of errors into two: (1) those that involve the issue of conflict of jurisdiction between the HRET and the COMELEC respecting the eligibility, qualification/s or disqualification of elective public officials; and (2) those that involve factual and evidentiary matters designed as supposed errors.20 Regarding the first issue, private respondent contends that the 1987 Constitution is most equivocal in declaring that the HRET is the sole judge of all contests relating to the election, returns and qualifications of Members of the House of Representatives, under the following provision: Art. VI, SECTION 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members.

Private respondent alleges that the above constitutional provision was adopted by the HRET in its Rules, which read: THE 1998 RULES OF THE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL The House of Representatives Electoral Tribunal hereby adopts and promulgates the following Rules governing its proceedings as the sole judge of all contests relating to the election, returns and qualifications of Members of the House of Representatives, pursuant to Section 17, Article VI of the Constitution. xxx xxx RULE 17 Quo Warranto A verified petition for quo warranto contesting the election of a Member of the House of Representatives on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall be filed by any voter within ten (10) days after the proclamation of the winner. The party filing the petition shall be designated as the petitioner while the adverse party shall be known as the respondent. The rule on verification provided in Section 16 hereof shall apply to petitions for quo warranto. xxx xxx xxx Private respondent concludes from the above that petitioner had no legal basis to claim that the HRET, when reference to the qualification/s of Members of the House of Representatives is concerned, is "co-equal" to the COMELEC, such that the HRET cannot disregard any ruling of COMELEC respecting the matter of eligibility and qualification of a member of the House of Representatives. The truth is the other way around, because the COMELEC is subservient to the HRET when the dispute or contest at issue refers to the eligibility and/or qualification of a Member of the House of Representatives. A petition for quo warranto is within the exclusive jurisdiction of the HRET as sole judge, and cannot be considered forum shopping even if another body may have passed upon in administrative or quasi-judicial proceedings the issue of the Members qualification while the Member was still a candidate. There is forum-shopping only where two cases involve the same parties and the same cause of action. The two cases here are distinct and dissimilar in their nature and character. Anent the second issue, private respondent contends that petitioner raised errors of judgment, mistakes in the factual findings, and/or flaws in the evidence appreciation, which are appropriate on appeal, but not in a petition for certiorari which is a special civil action, where the only allowable ground in order to prosper is grave abuse of discretion amounting to lack or in excess of jurisdiction. For its part, public respondent HRET, through the Solicitor General, filed a Comment dated July 14, 2009, arguing that it did not commit grave abuse of discretion amounting to lack or excess of jurisdiction when it held that petitioner failed to comply with the one year residency requirement under Section 6, Article VI of the 1987 Constitution.21 The HRET avers that the questioned Decision is supported by factual and legal basis, for it found that the original and extended contracts of lease presented by petitioner were defective and fabricated, as it contained "several apparent, if not visible, deficiencies as to form, i.e.[,] it being not notarized; the absence of witnesses, the intercalations thereat especially on the term/period of the alleged lease; the absence of respondents participation therein and some others pointed out in the petition."22 The Decision states that even if the contract of lease was valid and legitimate, "a fixed period of one year negates the concept of permanency that would suffice to prove abandonment of respondents previous residence or domicile at Pagsanjan." The Decision further reads as follows: Respondents connection to the First District of Laguna is an alleged lease agreement of a townhouse unit in the area. The intention not to establish a permanent home in the First District of Laguna is evident in his leasing a townhouse unit instead of buying one. The short length of time he claims to be a resident of the First District of Laguna (and the fact that his domicile of origin is Pagsanjan, Laguna is not within the First District of Laguna)indicate that his sole purpose in transferring his physical residence is not to acquire a new residence or domicile but only to qualify as a candidate for Representative of the First District of Laguna.23 xxx xxx xxx xxx

Exhibit "3" is the very document that was produced and presented by respondent to attest that while the original contract, replete with infirmities, as only for one year expiring even before the May 14, 2007 elections, here now comes the renewed Contract of Lease, signed by respondent himself, no longer his wife, immaculately perfect on its face, now notarized and properly witnessed, and even the terms and conditions thereof undeniably clear and explicit, with the added feature of a prolonged 2-year period of lease that will go well beyond the May 14, 2007 elections.

We cannot however, simply accept the renewed Contract of Lease (Exhibit "3") on its face. In fact, as succinctly pointed out by petitioner, the renewed Contract of Lease suffers from a more grievous infirmity. x x x As respondents brother-in-law, Atty. Macalalag is prohibited from notarizing a document that involves the respondent.24 xxx xxx xxx

But the lack of notarial authentication does not even constitute the main defect of [Exhibit "3"]. The surfacing of Exhibit "3" very late in the day cannot but lead to the conclusion that the same was a mere afterthought. x x x25 xxx xxx xxx

We have to emphasize that the initial one-year lease contract expired on February 27, 2007, and as such, standing alone, the same cannot prove and will not establish the declared one-year and two months prior residence eligibility requirement of respondent, unless it is shown that the expired lease agreement was extended or renewed beyond the May 14, 2007 elections, and, more importantly, accompanied by a copy of the claimed existing renewed lease agreement. x x x26 xxx xxx xxx

By the unexplained delay in the production and presentation of Exhibit "3", respondents residence qualifications suffered a fatal blow. For it can no longer be denied that respondents claimed residence at the alleged townhouse unit in Sta. Rosa for one year and two months prior to the May 14, 2007 election is not only most doubtful, but also negates the concept of permanency that would suffice to prove abandonment of respondents previous residence or domicile at Pagsanjan.27 Furthermore, the HRET alleges that, as it found in the questioned Decision, the witnesses presented who were residents of Sta. Rosa, Laguna were consistent and credible in disputing petitioners alleged physical presence at any given time in said place. Among these witnesses were three Barangay Health Workers, one of whom, Rowena Dineros, submitted an affidavit that her job required her to frequently go around Villa de Toledo, knocking on every household door to inquire about its occupants, and not once did she see petitioner at the alleged Sta. Rosa residence. The HRET claims that this testimony was corroborated by another Barangay Health Worker (BHW), Jeanet Cabingas, who stated in her affidavit that every time she accompanied her niece, who was petitioners goddaughter, to request a favor from petitioner, the latter would ask them to return to his house in Cabuyao, Laguna, even if she was a resident of Sta. Rosa.28 The Solicitor General quotes the following portion from the questioned Decision: What appears very evident from this is that respondent has absolutely not the slightest intention to reside in Sta. Rosa permanently. This ineluctably confirms that respondent has not developed animus manendi over the latter place, Sta. Rosa[,] and that he has not actually abandoned his old domicile of origin in Pagsanjan.29 As for the third BHW witness, Flocerfina Torres, the HRET gives credence to her testimony that she conducted a household census in Villa de Toledo every three months, but not once had she seen petitioner in the alleged Sta. Rosa residence, and that she was advised by petitioner to proceed to his house in Cabuyao, Laguna when she had attempted to solicit from petitioner at his "Rafters establishment because it was near her residence in Sta. Rosa." From the foregoing testimonies, the HRET found in the questioned Decision that: The uniform testimony of our 3 BHW witnesses disputing the physical presence of the respondent at his claimed Toledo address during all the time that they were performing their routine duties at that community, and which encompassed the period of "1 year and 2 months before the May 14, 2007 election", revealed that he was not staying in Sta. Rosa.30 The HRET likewise contends that the fact that petitioner registered as a voter in Sta. Rosa does not prove that he is a resident thereat, given that a voter is required to reside in the place wherein he proposes to vote only for six months preceding the election. The HRET avers that this Court had explained the importance of property ownership in Aquino v. COMELEC, et al.31 and finds no merit in petitioners insistence that the will of the electorate attests to his residence in Sta. Rosa because, the HRET further avers, "[a] disqualified candidate cannot assume office."32 The HRET likewise contends that the purpose of the residency requirement is to ensure that the person elected is familiar with the needs and problems of his constituency. The issues for determination are: (1) whether the HRET had jurisdiction over the case; and (2) whether petitioner sufficiently complied with the one-year residency requirement to be a Member of the House of Representatives, as provided in the 1987 Constitution.

The first issue is procedural and involves the jurisdiction of the HRET vis--vis that of the COMELEC in cases involving the qualification of Members of the House of Representatives. Petitioner suggests that the matters raised in HRET Case No. 07-034 were already passed upon by the COMELEC in SPA No. 07-046 (PES), thus the HRET should have dismissed the case for forum-shopping. We do not agree. The 1987 Constitution explicitly provides under Article VI, Section 17 thereof that the HRET and the Senate Electoral Tribunal (SET) shall be the sole judges of all contests relating to the election, returns, andqualifications of their respective members. The authority conferred upon the Electoral Tribunal is full, clear and complete. The use of the word sole emphasizes the exclusivity of the jurisdiction of these Tribunals,33 which is conferred upon the HRET and the SET after elections and the proclamation of the winning candidates. A candidate who has not been proclaimed and who has not taken his oath of office cannot be said to be a member of the House of Representatives. 34 Thus, private respondent correctly pointed out that a petition for quo warranto is within the exclusive jurisdiction of the HRET, and cannot be considered forum shopping even if, as in this case, the COMELEC had already passed upon in administrative or quasi-judicial proceedings the issue of the qualification of the Member of the House of Representatives while the latter was still a candidate. Anent the second issue pertaining to petitioners compliance with the residency requirement for Members of the House of Representatives, after studying the evidence submitted by the parties, we find for petitioner, taking into account our ruling in Frivaldo v. COMELEC,35 which reads in part: This Court has time and again liberally and equitably construed the electoral laws of our country to give fullest effect to the manifest will of our people, for in case of doubt, political laws must be interpreted to give life and spirit to the popular mandate freely expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot stand in the way of the sovereign will. xxx (Emphasis supplied) For the foregoing reason, the Court must exercise utmost caution before disqualifying a winning candidate, shown to be the clear choice of the constituents that he wishes to represent in Congress. The qualifications of a member of the House of Representatives are found in Article VI, Section 6 of the Constitution, which provides: Section 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election. (Emphasis supplied) We find the interpretation of the HRET of the residency requirement under the Constitution to be overly restrictive and unwarranted under the factual circumstances of this case. The evidence presented by private respondent before the HRET hardly suffices to prove that petitioner failed to comply with the one-year residency requirement under the Constitution. Private respondents documentary evidence to disqualify petitioner mainly consisted of (a) petitioners certificates of candidacy (COCs) for various positions in 1998, 2001 and 2004, which all indicated his residence as Pagsanjan, Laguna within the Fourth District of said province; (b) his application for a drivers license in August 2005 that indicated Pagsanjan, Laguna as his residence; and (c) the statement in his COCs including his 2007 COC for Congressman for the First District of Laguna that his place of birth was Pagsanjan, Laguna. The only thing these pieces of documentary evidence prove is that petitioners domicile of origin was Pagsanjan, Laguna and it remained his domicile up to 2005, at the latest. On the other hand, what petitioner asserted in his 2007 COC is that he had been a resident of Sta. Rosa, Laguna in the First District of Laguna as of February 2006 and respondents evidence failed contradict that claim. If it is true that petitioner and his family had been living in Sta. Rosa, Laguna as of February 2006 with the intent to reside therein permanently, that would more than fulfill the requirement that petitioner be a resident of the district where he was a candidate for at least one year before election day, which in this case was May 14, 2007. In order to buttress his claim that he and his family actually resided in Sta. Rosa, Laguna beginning at least in February 2006, petitioners evidence included, among others: (a) original and extended lease contracts for a townhouse in Villa de Toledo, Barangay Balibago, Sta. Rosa, Laguna; (b) certification issued by the President of the Villa de Toledo Homeowners Association, Inc, that petitioner has been a resident of said Subdivision since February 2006; (c) affidavits of petitioners neighbors in Villa de Toledo attesting that petitioner has been a resident of said subdivision since February 2006; (d) certification of the barangay chairman of Barangay Balibago, Sta. Rosa, Laguna that petitioner is a resident of Villa de Toledo within the said barangay; (e) certificates of attendance of petitioners children in schools located in Sta. Rosa, Laguna since 2005; and (f) DTI certificates of business issued in the name of petitioner and his wife to show that they own and operate businesses in Sta. Rosa, Laguna since 2003.

The fact that a few barangay health workers attested that they had failed to see petitioner whenever they allegedly made the rounds in Villa de Toledo is of no moment, especially considering that there were witnesses (including petitioners neighbors in Villa de Toledo) that were in turn presented by petitioner to prove that he was actually a resident of Villa de Toledo, in the address he stated in his COC. The law does not require a person to be in his home twenty-four (24) hours a day, seven days a week, in order to fulfill the residency requirement. It may be that whenever these health workers do their rounds petitioner was out of the house to attend to his own employment or business. It is not amiss to note that even these barangay health workers, with the exception of one, confirm seeing petitioners wife at the address stated in petitioners 2007 COC. Indeed, these health workers testimonies do not conclusively prove that petitioner did not in fact reside in Villa de Toledo for at least the year before election day. Neither do we find anything wrong if petitioner sometimes transacted business or received visitors in his Cabuyao house, instead of the alleged Sta. Rosa residence, as there is nothing in the residency requirement for candidates that prohibits them from owning property and exercising their rights of ownership thereto in other places aside from the address they had indicated as their place of residence in their COC. As regards the weight to be given the contract of lease vis--vis petitioners previous COCs, we find Perez v. COMELEC36 to be instructive in this case, and quote the pertinent portions of the decision below: In the case at bar, the COMELEC found that private respondent changed his residence from Gattaran to Tuguegarao, the capital of Cagayan, in July 1990 on the basis of the following: (1) the affidavit of Engineer Alfredo Ablaza, the owner of the residential apartment at 13-E Magallanes St., Tuguegarao, Cagayan, where private respondent had lived in 1990; (2) the contract of lease between private respondent, as lessee, and Tomas T. Decena, as lessor, of a residential apartment at Kamias St., Tanza, Tuguegarao, Cagayan, for the period July 1, 1995 to June 30, 1996; (3) the marriage certificate, dated January 18, 1998, between private respondent and Lerma Dumaguit; (4) the certificate of live birth of private respondent's second daughter; and (5) various letters addressed to private respondent and his family, which all show that private respondent was a resident of Tuguegarao, Cagayan for at least one (1) year immediately preceding the elections on May 11, 1998. There is thus substantial evidence supporting the finding that private respondent had been a resident of the Third District of Cagayan and there is nothing in the record to detract from the merit of this factual finding. Petitioner contends that the fact that private respondent was a resident of Gattaran, at least until June 22, 1997, is shown by the following documentary evidence in the record, to wit: (1) his certificates of candidacy for governor of Cagayan in the 1988, 1992 and 1995 elections; (2) his voter's registration records, the latest of which was made on June 22, 1997; and (3) the fact that private respondent voted in Gattaran, Cagayan, in the elections of 1987, 1988, 1992 and 1995. The contention is without merit. The fact that a person is registered as a voter in one district is not proof that he is not domiciled in another district. Thus, in Faypon v. Quirino, this Court held that the registration of a voter in a place other than his residence of origin is not sufficient to consider him to have abandoned or lost his residence. Nor is it of much importance that in his certificates of candidacy for provincial governor in the elections of 1988, 1992, and 1995, private respondent stated that he was a resident of Gattaran. Under the law, what is required for the election of governor is residency in the province, not in any district or municipality, one year before the election. Moreover, as this Court said in Romualdez-Marcos v. COMELEC: It is the fact of residence, not a statement in a certificate of candidacy, which ought to be decisive in determining whether or not an individual has satisfied the constitution's residency qualification requirement. The said statement becomes material only when there is or appears to be a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. In this case, although private respondent declared in his certificates of candidacy prior to the May 11, 1998 elections that he was a resident of Gattaran, Cagayan, the fact is that he was actually a resident of the Third District not just for one (1) year prior to the May 11, 1998 elections but for more than seven (7) years since July 1990. His claim that he had been a resident of Tuguegarao since July 1990 is credible considering that he was governor from 1988 to 1998 and, therefore, it would be convenient for him to maintain his residence in Tuguegarao, which is the capital of the province of Cagayan. As always, the polestar of adjudication in cases of this nature is Gallego v. Vera, in which this Court held: "[W]hen the evidence on the alleged lack of residence qualification is weak or inconclusive and it clearly appears, as in the instant case, that the purpose of the law would not be thwarted by upholding the right to the office, the will of the electorate should be respected." In this case, considering the purpose of the residency requirement, i.e., to ensure that the person elected is familiar with the needs and problems of his constituency, there can be no doubt that private respondent is qualified, having been governor of the entire province of Cagayan for ten years immediately before his election as Representative of that province's Third District.37 Thus, in the case above, the Court found that the affidavit of the lessor and the contract of lease were sufficient proof that private respondent therein had changed his residence. In the case now before us, although private

respondent raised alleged formal defects in the contract of lease, the lessor himself testified that as far as he was concerned, he and petitioner had a valid contract and he confirmed that petitioner and his family are the occupants of the leased premises. Petitioner correctly pointed out that the lack of proper notarization does not necessarily nullify nor render the parties transaction void ab initio. In Mallari v. Alsol, we found a contract of lease to be valid despite the non-appearance of one of the parties before a notary public, and ruled in this wise: Notarization converts a private document into a public document. However, the non-appearance of the parties before the notary public who notarized the document does not necessarily nullify nor render the parties' transaction void ab initio. Thus: . . . Article 1358 of the New Civil Code on the necessity of a public document is only for convenience, not for validity or enforceability. Failure to follow the proper form does not invalidate a contract. Where a contract is not in the form prescribed by law, the parties can merely compel each other to observe that form, once the contract has been perfected. This is consistent with the basic principle that contracts are obligatory in whatever form they may have been entered into, provided all essential requisites are present. Hence, the Lease Contract is valid despite Mayor Perez's failure to appear before the notary public. 38 The HRET puts undue emphasis on the fact that petitioner is only leasing a townhouse in Sta. Rosa while he owns houses in Pagsanjan and Cabuyao. His ownership of properties in other places has been taken to mean that petitioner did not intend to make Sta. Rosa his permanent residence or that he had not abandoned his domicile of origin. Although it is true that the latest acquired abode is not necessarily the domicile of choice of a candidate, there is nothing in the Constitution or our election laws which require a congressional candidate to sell a previously acquired home in one district and buy a new one in the place where he seeks to run in order to qualify for a congressional seat in that other district. Neither do we see the fact that petitioner was only leasing a residence in Sta. Rosa at the time of his candidacy as a barrier for him to run in that district. Certainly, the Constitution does not require a congressional candidate to be a property owner in the district where he seeks to run but only that he resides in that district for at least a year prior to election day. To use ownership of property in the district as the determinative indicium of permanence of domicile or residence implies that only the landed can establish compliance with the residency requirement. This Court would be, in effect, imposing a property requirement to the right to hold public office, which property requirement would be unconstitutional. This case must be distinguished from Aquino v. COMELEC39 and Domino v. COMELEC,40 where the disqualified candidate was shown to be merely leasing a residence in the place where he sought to run for office. In Aquino and Domino, there appeared to be no other material reason for the candidate to lease residential property in the place where he filed his COC, except to fulfill the residency requirement under election laws. In the case at bar, there are real and substantial reasons for petitioner to establish Sta. Rosa as his domicile of choice and abandon his domicile of origin and/or any other previous domicile. To begin with, petitioner and his wife have owned and operated businesses in Sta. Rosa since 2003. Their children have attended schools in Sta. Rosa at least since 2005. Although ownership of property should never be considered a requirement for any candidacy, petitioner had sufficiently confirmed his intention to permanently reside in Sta. Rosa by purchasing residential properties in that city even prior to the May 2007 election, as evidenced by certificates of title issued in the name of petitioner and his wife. One of these properties is a residence in Bel-Air, Sta. Rosa which petitioner acquired even before 2006 but which petitioner had been leasing out. He claims that he rented out this property because prior to 2006 he had not decided to permanently reside in Sta. Rosa. This could explain why in early 2006 petitioner had to rent a townhouse in Villa de Toledo his Bel-Air residence was occupied by a tenant. The relatively short period of the lease was also adequately explained by petitioner they rented a townhouse while they were in the process of building their own house in Sta. Rosa. True enough, petitioner and his spouse subsequently purchased a lot also in Villa de Toledo in April 2007, about a month before election day, where they have constructed a home for their familys use as a residence. In all, petitioner had adequately shown that his transfer of residence to Sta. Rosa was bona fide and was not merely for complying with the residency requirement under election laws. It was incumbent upon private respondent to prove his assertion that petitioner is indeed disqualified from holding his congressional seat. Private respondents burden of proof was not only to establish that petitioners domicile of origin is different from Sta. Rosa but also that petitioners domicile for the one year prior to election day continued to be Pagsanjan, Laguna which was petitioners domicile of origin or that petitioner had chosen a domicile other than Sta. Rosa, Laguna for that same period. In other words, to prove petitioners disqualification, the relevant period is the one year period prior to election day. It would be absurd to rule that the petitioner in a quo warranto suit only needs to prove that the candidate had some other previous domicile, regardless of how remote in time from election day that previous domicile was established, and then the candidate would already have the burden to prove abandonment of that previous domicile. It is the burden of the petitioner in a quo warranto case to first prove the very fact of disqualification before the candidate should even be called upon to defend himself with countervailing evidence.

In our considered view, private respondent failed to discharge his burden of proof. Petitioners COCs for previous elections and his 2005 application for a drivers license only proved that his domicile of origin was Pagsanjan, Laguna and it remained to be so up to 2005. Affidavits/testimonies of respondents witnesses, at most, tended to prove that petitioner was on several instances found in his house in Cabuyao, Laguna, which was not even his domicile of origin. Cabuyao, Laguna is in the Second District of Laguna while petitioners domicile of origin, Pagsanjan, is in the Fourth District of Laguna. Based on private respondents own documentary submissions, Cabuyao was never even stated as a domicile or residence in any of the petitioners COCs. Moreover, owning an abode in Cabuyao where petitioner is occasionally found did not prove that Cabuyao is petitioners real domicile. Indeed, disregarding Cabuyao as petitioners domicile would be consistent with the established principle that physical presence in a place sans the intent to permanently reside therein is insufficient to establish domicile. Neither did private respondents submissions refute petitioners evidence that since February 2006 petitioner has chosen Sta. Rosa as his domicile. To summarize, private respondents own evidence did not categorically establish where petitioners domicile is nor did said evidence conclusively prove that for the year prior to the May 14, 2007 petitioner had a domicile other than where he actually resided, i.e. Sta. Rosa, Laguna. To be sure, Gallego v. Vera41 decreed that: We might add that the manifest intent of the law in fixing a residence qualification is to exclude a stranger or newcomer, unacquainted with the conditions and needs of a community and not identified with the latter, from an elective office to serve that community; and when the evidence on the alleged lack of residence qualification is weak or inconclusive and it clearly appears, as in the instant case, that the purpose of the law would not be thwarted by upholding the right to the office, the will of the electorate should be respected. xxx xxx xxx (Emphasis supplied) Frivaldo42 likewise prescribed that: xxx xxx xxx To successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility is so patently antagonistic to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people, would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote. xxx xxx xxx (Emphasis supplied) In Torayno,43 the Court had the occasion to say that: The Constitution and the law requires residence as a qualification for seeking and holding elective public office, in order to give candidates the opportunity to be familiar with the needs, difficulties, aspirations, potentials for growth and all matters vital to the welfare of their constituencies; likewise, it enables the electorate to evaluate the office seekers' qualifications and fitness for the job they aspire for. xxx xxx xxx Recently, in Japzon v. COMELEC,44 the Court, citing Papandayan, Jr. v. COMELEC,45 said: In Papandayan, Jr. v. Commission on Elections, the Court provided a summation of the different principles and concepts in jurisprudence relating to the residency qualification for elective local officials. Pertinent portions of the ratio in Papandayan are reproduced below: Our decisions have applied certain tests and concepts in resolving the issue of whether or not a candidate has complied with the residency requirement for elective positions. The principle of animus revertendi has been used to determine whether a candidate has an "intention to return" to the place where he seeks to be elected. Corollary to this is a determination whether there has been an "abandonment" of his former residence which signifies an intention to depart therefrom. In Caasi v. Court of Appeals, this Court set aside the appealed orders of the COMELEC and the Court of Appeals and annulled the election of the respondent as Municipal Mayor of Bolinao, Pangasinan on the ground that respondent's immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. Being a green card holder, which was proof that he was a permanent resident or immigrant of the United States, and in the absence of any waiver of his status as such before he ran for election on January 18, 1988, respondent was held to be disqualified under 68 of the Omnibus Election Code of the Philippines (Batas Pambansa Blg. 881). In Co v. Electoral Tribunal of the House of Representatives, respondent Jose Ong, Jr. was proclaimed the duly elected representative of the 2nd District of Northern Samar. The House of Representatives Electoral Tribunal (HRET) upheld his election against claims that he was not a natural born Filipino citizen and a resident of Laoang, Northern Samar. In sustaining the ruling of the HRET, this Court, citing Faypon v. Quirino, applied the concept of animus revertendi or "intent to return", stating that his absence from his residence in order to pursue studies or practice his profession as a certified public accountant in Manila or his registration as a voter other than in the place where he was elected did not constitute loss of residence. The fact that respondent made periodical journeys to his home province in Laoag revealed that he always had animus revertendi. In Abella v. Commission on Elections and Larrazabal v. Commission on Elections, it was explained that the determination of a person's legal residence or domicile largely depends upon the intention that may be inferred from his acts, activities, and utterances. In that case, petitioner Adelina Larrazabal, who had obtained the highest number of votes in the local elections of February 1, 1988 and who had thus been proclaimed as the duly elected governor,

was disqualified by the COMELEC for lack of residence and registration qualifications, not being a resident nor a registered voter of Kananga, Leyte. The COMELEC ruled that the attempt of petitioner Larrazabal to change her residence one year before the election by registering at Kananga, Leyte to qualify her to run for the position of governor of the province of Leyte was proof that she considered herself a resident of Ormoc City. This Court affirmed the ruling of the COMELEC and held that petitioner Larrazabal had established her residence in Ormoc City, not in Kananga, Leyte, from 1975 up to the time that she ran for the position of Provincial Governor of Leyte on February 1, 1988. There was no evidence to show that she and her husband maintained separate residences, i.e., she at Kananga, Leyte and her husband at Ormoc City. The fact that she occasionally visited Kananga, Leyte through the years did not signify an intention to continue her residence after leaving that place. In Romualdez v. RTC, Br. 7, Tacloban City, the Court held that "domicile" and "residence" are synonymous. The term "residence", as used in the election law, imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. "Domicile" denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. In that case, petitioner Philip G. Romualdez established his residence during the early 1980's in Barangay Malbog, Tolosa, Leyte. It was held that the sudden departure from the country of petitioner, because of the EDSA People's Power Revolution of 1986, to go into self-exile in the United States until favorable conditions had been established, was not voluntary so as to constitute an abandonment of residence. The Court explained that in order to acquire a new domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. There must be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual. Ultimately, the Court recapitulates in Papandayan, Jr. that it is the fact of residence that is the decisive factor in determining whether or not an individual has satisfied the residency qualification requirement. We do not doubt that the residency requirement is a means to prevent a stranger or newcomer from holding office on the assumption that such stranger or newcomer would be insufficiently acquainted with the needs of his prospective constituents. However, it is appropriate to point out at this juncture that aside from petitioners actual, physical presence in Sta. Rosa for more than a year prior to election day, he has demonstrated that he has substantial ties to Sta. Rosa and the First District of Laguna for an even longer period than that. Petitioner has business interests in Sta. Rosa comprised of restaurants and a residential property for lease. Petitioner has two children studying in Sta. Rosa schools even before 2006. These circumstances provided petitioner with material reasons to frequently visit the area and eventually take up residence in the said district. Significantly, petitioner previously served as Board Member and Vice-Governor for the Province of Laguna, of which the First District and Sta. Rosa are a part. It stands to reason that in his previous elected positions petitioner has acquired knowledge of the needs and aspirations of the residents of the First District who were among his constituents. Simply put, petitioner could not be considered a "stranger" to the community which he sought to represent and that evil that the residency requirement was designed to prevent is not present in this case. We take this occasion to reiterate our ruling in Sinaca v. Mula,46 to wit: [When] a candidate has received popular mandate, overwhelmingly and clearly expressed, all possible doubts should be resolved in favor of the candidate's eligibility for to rule otherwise is to defeat the will of the people. Above and beyond all, the determination of the true will of the electorate should be paramount. It is their voice, not ours or of anyone else, that must prevail. This, in essence, is the democracy we continue to hold sacred. WHEREFORE, premises considered, the petition is hereby GRANTED. The decision of the HRET in HRET CASE No. 07-034 promulgated on December 16, 2008, and its Minute Resolution No. 09-080 promulgated on April 30, 2009 in the same case, are hereby REVERSED AND SET ASIDE. SO ORDERED.

G.R. No. 201716

January 8, 2013

MAYOR ABELARDO ABUNDO, SR., Petitioner, vs. COMMISSION ON ELECTIONS and ERNESTO R. VEGA, Respondents. DECISION VELASCO, JR., J.: The Case In this Petition for Certiorari under Rule 65, petitioner Abelardo Abundo, Sr. (Abundo) assails and seeks to nullify (1) the February 8, 2012 Resolution1 of the Second Division, Commission on Elections (COMELEC), in EAC (AE) No. A-25-2010 and (2) the May 10, 2012 Resolution2 of the COMELEC en banc affirming that divisions disposition. The assailed issuances, in turn, affirmed the Decision of the Regional Trial Court (RTC) of Virac, Catanduanes, Branch 43, dated August 9, 2010, in Election Case No. 55 declaring Abundo as ineligible, under the three-term limit rule, to run in the 2010 elections for the position of, and necessarily to sit as, Mayor of Viga, Catanduanes. The antecedent facts are undisputed. For four (4) successive regular elections, namely, the 2001, 2004, 2007 and 2010 national and local elections, Abundo vied for the position of municipal mayor of Viga, Catanduanes. In both the 2001 and 2007 runs, he emerged and was proclaimed as the winning mayoralty candidate and accordingly served the corresponding terms as mayor. In the 2004 electoral derby, however, the Viga municipal board of canvassers initially proclaimed as winner one Jose Torres (Torres), who, in due time, performed the functions of the office of mayor. Abundo protested Torres election and proclamation. Abundo was eventually declared the winner of the 2004 mayoralty electoral contest, paving the way for his assumption of office starting May 9, 2006 until the end of the 2004-2007 term on June 30, 2007, or for a period of a little over one year and one month. Then came the May 10, 2010 elections where Abundo and Torres again opposed each other. When Abundo filed his certificate of candidacy3 for the mayoralty seat relative to this electoral contest, Torres lost no time in seeking the formers disqualification to run, the corresponding petition,4 docketed as SPA Case No. 10-128 (DC), predicated on the three-consecutive term limit rule. On June 16, 2010, the COMELEC First Division issued a Resolution5 finding for Abundo, who in the meantime bested Torres by 219 votes6 and was accordingly proclaimed 2010 mayor-elect of Viga, Catanduanes. Meanwhile, on May 21, 2010, or before the COMELEC could resolve the adverted disqualification case Torres initiated against Abundo, herein private respondent Ernesto R. Vega (Vega) commenced a quo warranto7 action before the RTC-Br. 43 in Virac, Catanduanes, docketed as Election Case No. 55, to unseat Abundo on essentially the same grounds Torres raised in his petition to disqualify. The Ruling of the Regional Trial Court By Decision8 of August 9, 2010 in Election Case No. 55, the RTC declared Abundo ineligible to serve as municipal mayor, disposing as follows: WHEREFORE, Decision is, hereby, rendered GRANTING the petition and declaring Abelardo Abundo, Sr. ineligible to serve as municipal mayor of Viga, Catanduanes. SO ORDERED.9 In so ruling, the trial court, citing Aldovino, Jr. v. COMELEC,10 found Abundo to have already served three consecutive mayoralty terms, to wit, 2001-2004, 2004-2007 and 2007-2010, and, hence, disqualified for another, i.e., fourth, consecutive term. Abundo, the RTC noted, had been declared winner in the aforesaid 2004 elections consequent to his protest and occupied the position of and actually served as Viga mayor for over a year of the remaining term, i.e., from May 9, 2006 to June 30, 2007, to be exact. To the RTC, the year and a month service constitutes a complete and full service of Abundos second term as mayor. Therefrom, Abundo appealed to the COMELEC, his recourse docketed as EAC (AE) No. A-25-2010. The Ruling of the COMELEC On February 8, 2012, in EAC (AE) No. A-25-2010, the COMELECs Second Division rendered the first assailed Resolution, the dispositive portion of which reads as follows: WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court Branch 73, Virac, Catanduanes is AFFIRMED and the appeal is DISMISSED for lack of merit.

SO ORDERED.11 Just like the RTC, the COMELECs Second Division ruled against Abundo on the strength of Aldovino, Jr. and held that service of the unexpired portion of a term by a protestant who is declared winner in an election protest is considered as service for one full term within the contemplation of the three-term limit rule. In time, Abundo sought but was denied reconsideration by the COMELEC en banc per its equally assailed Resolution of May 10, 2012. The fallo of the COMELEC en bancs Resolution reads as follows: WHEREFORE, premises considered, the motion for reconsideration is DENIED for lack of merit. The Resolution of the Commission (Second Division) is hereby AFFIRMED. SO ORDERED.12 In affirming the Resolution of its Second Division, the COMELEC en banc held in essence the following: first, there was no involuntary interruption of Abundos 2004-2007 term service which would be an exception to the three-term limit rule as he is considered never to have lost title to the disputed office after he won in his election protest; and second, what the Constitution prohibits is for an elective official to be in office for the same position for more than three consecutive terms and not to the service of the term. Hence, the instant petition with prayer for the issuance of a temporary restraining order (TRO) and/or preliminary injunction. Intervening Events In the meantime, following the issuance by the COMELEC of its May 10, 2012 Resolution denying Abundos motion for reconsideration, the following events transpired: 1. On June 20, 2012, the COMELEC issued an Order13 declaring its May 10, 2012 Resolution final and executory. The following day, June 21, 2012, the COMELEC issued an Entry of Judgment.14 2. On June 25, 2012, Vega filed a Motion for Execution15 with the RTC-Br. 43 in Virac, Catanduanes. 3. On June 27, 2012, the COMELEC, acting on Vegas counsels motion16 filed a day earlier, issued an Order17 directing the bailiff of ECAD (COMELEC) to personally deliver the entire records to said RTC. On June 29, 2012, the COMELEC ECAD Bailiff personally delivered the entire records of the instant case to, and were duly received by, the clerk of court of RTC-Br. 43. 4. On June 29, 2012, or on the same day of its receipt of the case records, the RTC-Br. 43 in Virac, Catanduanes granted Vegas Motion for Execution through an Order18 of even date. And a Writ of Execution19 was issued on the same day. 5. On July 2, 2012, Sheriff Q. Tador, Jr. received the Writ of Execution and served the same at the office of Mayor Abundo on the same day via substituted service. 6. On July 3, 2012, the Court issued a TRO20 enjoining the enforcement of the assailed COMELEC Resolutions. 7. On July 4, 2012, Vega received the Courts July 3, 2012 Resolution21 and a copy of the TRO. On the same day, Vice-Mayor Emeterio M. Tarin and First Councilor Cesar O. Cervantes of Viga, Catanduanes took their oaths of office22 as mayor and vice-mayor of Viga, Catanduanes, respectively. 8. On July 5, 2012, Vega received a copy of Abundos Seventh (7th) Most Extremely Urgent Manifestation and Motion23 dated June 28, 2012 praying for the issuance of a TRO and/or status quo ante Order. On the same day, Vice-Mayor Emeterio M. Tarin and First Councilor Cesar O. Cervanteswho had taken their oaths of office the day beforeassumed the posts of mayor and vice-mayor of Viga, Catanduanes.24 9. On July 6, 2012, Vega interposed a Motion (To Admit Attached Manifestation)25 and Manifestation with Leave to Admit26 dated July 5, 2012 stating that the TRO thus issued by the Court has become functus officio owing to the execution of the RTCs Decision in Election Case No. 55. 10. On July 10, 2012, Vega filed his Comment/Opposition with Leave to the Petitioners Prayer for the Issuance of a Status Quo Ante Order27 reiterating the argument that since Vice-Mayor Emeterio M. Tarin and First Councilor Cesar O. Cervantes already assumed the posts of Mayor and Vice-Mayor of Viga, Catanduanes, then a Status Quo Ante Order would serve no purpose.

11. On July 12, 2012, Abundo filed his Most Urgent Manifestation and Motion to Convert the July 3, 2012 TRO into a Status Quo Ante Order (In View of the Unreasonable and Inappropriate Progression of Events).28 It is upon the foregoing backdrop of events that Abundo was dislodged from his post as incumbent mayor of Viga, Catanduanes. To be sure, the speed which characterized Abundos ouster despite the supervening issuance by the Court of a TRO on July 3, 2012 is not lost on the Court. While it is not clear whether Vice-Mayor Tarin and First Councilor Cervantes knew of or put on notice about the TRO either before they took their oaths of office on July 4, 2012 or before assuming the posts of mayor and vice-mayor on July 5, 2012, the confluence of events following the issuance of the assailed COMELEC en banc irresistibly tends to show that the TROissued as it were to maintain the status quo, thus averting the premature ouster of Abundo pending this Courts resolution of his appealappears to have been trivialized. On September 11, 2012, Vega filed his Comment on Abundos petition, followed not long after by public respondent COMELECs Consolidated Comment.29 The Issues Abundo raises the following grounds for the allowance of the petition: 6.1 The Commission En Banc committed grave abuse of discretion amounting to lack or excess of jurisdiction when it declared the arguments in Abundos motion for reconsideration as mere rehash and reiterations of the claims he raised prior to the promulgation of the Resolution. 6.2 The Commission En Banc committed grave abuse of discretion amounting to lack or excess of jurisdiction when it declared that Abundo has consecutively served for three terms despite the fact that he only served the remaining one year and one month of the second term as a result of an election protest.30 First Issue: Arguments in Motion for Reconsideration Not Mere Reiteration The COMELEC en banc denied Abundos motion for reconsideration on the basis that his arguments in said motion are mere reiterations of what he already brought up in his appeal Brief before the COMELEC Second Division. In this petition, petitioner claims otherwise. Petitioners assertion is devoid of merit. A comparison of Abundos arguments in the latters Brief vis--vis those in his Motion for Reconsideration (MR) reveals that the arguments in the MR are elucidations and amplications of the same issues raised in the brief. First, in his Brief, Abundo raised the sole issue of lack of jurisdiction of the RTC to consider the quo warranto case since the alleged violation of the three-term limit has already been rejected by the COMELEC First Division in SPA Case No. 10-128 (DC), while in his MR, Abundo raised the similar ground of the conclusiveness of the COMELECs finding on the issue of his qualification to run for the current term. Second, in his Brief, Abundo assailed RTCs reliance on Aldovino, Jr., while in his MR, he argued that the Courts pronouncement in Aldovino, Jr., which dealt with preventive suspension, is not applicable to the instant case as it involves only a partial service of the term. Abundo argued in his Brief that his situation cannot be equated with the case of preventive suspension as held in Aldovino, Jr., while in his MR, he argued before that the almost two years which he did not sit as mayor during the 2004-2007 term is an interruption in the continuity of his service for the full term. Thus, COMELEC did not err in ruling that the issues in the MR are a rehash of those in the Brief. Core Issue: Whether or not Abundo is deemed to have served three consecutive terms The pivotal determinative issue then is whether the service of a term less than the full three years by an elected official arising from his being declared as the duly elected official upon an election protest is considered as full service of the term for purposes of the application of the three consecutive term limit for elective local officials. On this core issue, We find the petition meritorious. The consecutiveness of what otherwise would have been Abundos three successive, continuous mayorship was effectively broken during the 2004-2007 term when he was initially deprived of title to, and was veritably disallowed to serve and occupy, an office to which he, after due proceedings, was eventually declared to have been the rightful choice of the electorate. The three-term limit rule for elective local officials, a disqualification rule, is found in Section 8, Article X of the 1987 Constitution, which provides:

Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. (Emphasis supplied.) and is reiterated in Sec. 43(b) of Republic Act No. (RA) 7160, or the Local Government Code (LGC) of 1991, thusly: Sec. 43. Term of Office. xxxx (b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected. (Emphasis Ours.) To constitute a disqualification to run for an elective local office pursuant to the aforequoted constitutional and statutory provisions, the following requisites must concur: (1) that the official concerned has been elected for three consecutive terms in the same local government post; and (2) that he has fully served three consecutive terms.31 Judging from extant jurisprudence, the three-term limit rule, as applied to the different factual milieus, has its complicated side. We shall revisit and analyze the various holdings and relevant pronouncements of the Court on the matter. As is clearly provided in Sec. 8, Art. X of the Constitution as well as in Sec. 43(b) of the LGC, voluntary renunciation of the office by the incumbent elective local official for any length of time shall NOT, in determining service for three consecutive terms, be considered an interruption in the continuity of service for the full term for which the elective official concerned was elected. In Aldovino, Jr., however, the Court stated the observation that the law "does not textually state that voluntary renunciation is the only actual interruption of service that does not affect continuity of service for a full term for purposes of the three-term limit rule."32 As stressed in Socrates v. Commission on Elections,33 the principle behind the three-term limit rule covers only consecutive terms and that what the Constitution prohibits is a consecutive fourth term. Put a bit differently, an elective local official cannot, following his third consecutive term, seek immediate reelection for a fourth term,34albeit he is allowed to seek a fresh term for the same position after the election where he could have sought his fourth term but prevented to do so by reason of the prohibition. There has, in fine, to be a break or interruption in the successive terms of the official after his or her third term. An interruption usually occurs when the official does not seek a fourth term, immediately following the third. Of course, the basic law is unequivocal that a "voluntary renunciation of the office for any length of time shall NOT be considered an interruption in the continuity of service for the full term for which the elective official concerned was elected." This qualification was made as a deterrent against an elective local official intending to skirt the three-term limit rule by merely resigning before his or her third term ends. This is a voluntary interruption as distinguished from involuntary interruption which may be brought about by certain events or causes. While appearing to be seemingly simple, the three-term limit rule has engendered a host of disputes resulting from the varying interpretations applied on local officials who were elected and served for three terms or more, but whose terms or service was punctuated by what they view as involuntary interruptions, thus entitling them to a, but what their opponents perceive as a proscribed, fourth term. Involuntary interruption is claimed to result from any of these events or causes: succession or assumption of office by operation of law, preventive suspension, declaration of the defeated candidate as the winner in an election contest, declaration of the proclaimed candidate as the losing party in an election contest, proclamation of a non-candidate as the winner in a recall election, removal of the official by operation of law, and other analogous causes. This brings us to an examination of situations and jurisprudence wherein such consecutive terms were considered or not considered as having been "involuntarily interrupted or broken." (1) Assumption of Office by Operation of Law In Borja, Jr. v. Commission on Elections and Jose T. Capco, Jr.35 (1998) and Montebon v. Commission on Elections36 (2008), the Court delved on the effects of "assumption to office by operation of law" on the three-term limit rule. This contemplates a situation wherein an elective local official fills by succession a higher local government post permanently left vacant due to any of the following contingencies, i.e., when the supposed incumbent refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns or is otherwise permanently incapacitated to discharge the functions of his office.37

In Borja, Jr., Jose T. Capco, Jr. (Capco) was elected vice-mayor of Pateros on January 18, 1988 for a term ending June 30, 1992. On September 2, 1989, Capco became mayor, by operation of law, upon the death of the incumbent mayor, Cesar Borja. Capco was then elected and served as mayor for terms 1992-1995 and 1995-1998. When Capco expressed his intention to run again for the mayoralty position during the 1998 elections, Benjamin U. Borja, Jr., who was then also a candidate for mayor, sought Capcos disqualification for violation of the three-term limit rule. Finding for Capco, the Court held that for the disqualification rule to apply, "it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply."38 There was, the Court ruled, no violation of the three-term limit, for Capco "was not elected to the office of the mayor in the first term but simply found himself thrust into it by operation of law"39 when a permanent vacancy occurred in that office. The Court arrived at a parallel conclusion in the case of Montebon. There, Montebon had been elected for three consecutive terms as municipal councilor of Tuburan, Cebu in 1998-2001, 2001-2004, and 2004-2007. However, in January 2004, or during his second term, Montebon succeeded and assumed the position of vice-mayor of Tuburan when the incumbent vice-mayor retired. When Montebon filed his certificate of candidacy again as municipal councilor, a petition for disqualification was filed against him based on the three-term limit rule. The Court ruled that Montebons assumption of office as vice-mayor in January 2004 was an interruption of his continuity of service as councilor. The Court emphasized that succession in local government office is by operation of law and as such, it is an involuntary severance from office. Since the law no less allowed Montebon to vacate his post as councilor in order to assume office as vice-mayor, his occupation of the higher office cannot, without more, be deemed as a voluntary renunciation of his position as councilor. (2) Recall Election With reference to the effects of recall election on the continuity of service, Adormeo v. Commission on Elections40(2002) and the aforementioned case of Socrates (2002) provide guidance. In Adormeo, Ramon Talaga, Jr. (Talaga) was elected and served as mayor of Lucena City during terms 1992-1995 and 1995-1998. During the 1998 elections, Talaga lost to Bernard G. Tagarao. However, before Tagaraos 19982001 term ended, a recall election was conducted in May 2000 wherein Talaga won and served the unexpired term of Tagarao until June 2001. When Talaga ran for mayor in 2001, his candidacy was challenged on the ground he had already served as mayor for three consecutive terms for violation of the three term-limit rule. The Court held therein that the remainder of Tagaraos term after the recall election during which Talaga served as mayor should not be considered for purposes of applying the three-term limit rule. The Court emphasized that the continuity of Talagas mayorship was disrupted by his defeat during the 1998 elections. A similar conclusion was reached by the Court in Socrates. The petitioners in that case assailed the COMELEC Resolution which declared Edward Hagedorn qualified to run for mayor in a recall election. It appeared that Hagedorn had been elected and served as mayor of Puerto Princesa City for three consecutive terms: in 19921995, 1995-1998 and 1998-2001. Obviously aware of the three-term limit principle, Hagedorn opted not to vie for the same mayoralty position in the 2001 elections, in which Socrates ran and eventually won. However, midway into his term, Socrates faced recall proceedings and in the recall election held, Hagedorn run for the formers unexpired term as mayor. Socrates sought Hagedorns disqualification under the three-term limit rule. In upholding Hagedorns candidacy to run in the recall election, the Court ruled: x x x After Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen until the recall election of September 24, 2002 when he won by 3,018 votes over his closest opponent, Socrates. From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa was Socrates. During the same period, Hagedorn was simply a private citizen. This period is clearly an interruption in the continuity of Hagedorns service as mayor, not because of his voluntary renunciation, but because of a legal prohibition.41 The Court likewise emphasized in Socrates that "an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term and, hence, any subsequent election, like recall election, is no longer covered x x x."42 (3) Conversion of a Municipality into a City On the other hand, the conversion of a municipality into a city does not constitute an interruption of the incumbent officials continuity of service. The Court said so in Latasa v. Commission on Elections43 (2003). Latasa is cast against the ensuing backdrop: Arsenio A. Latasa was elected and served as mayor of the Municipality of Digos, Davao del Sur for terms 1992-1995, 1995-1998, and 1998-2001. During his third term, Digos was converted into a component city, with the corresponding cityhood law providing the holdover of elective officials. When Latasa filed his certificate of candidacy as mayor for the 2001 elections, the Court declared Latasa as

disqualified to run as mayor of Digos City for violation of the three-term limit rule on the basis of the following ratiocination: This Court believes that (Latasa) did involuntarily relinquish his office as municipal mayor since the said office has been deemed abolished due to the conversion. However, the very instant he vacated his office as municipal mayor, he also assumed office as city mayor. Unlike in Lonzanida, where petitioner therein, for even just a short period of time, stepped down from office, petitioner Latasa never ceased from acting as chief executive of the local government unit. He never ceased from discharging his duties and responsibilities as chief executive of Digos. (Emphasis supplied.) (4) Period of Preventive Suspension In 2009, in the case Aldovino Jr., the Court espoused the doctrine that the period during which a local elected official is under preventive suspension cannot be considered as an interruption of the continuity of his service. The Court explained why so: Strict adherence to the intent of the three-term limit rule demands that preventive suspension should not be considered an interruption that allows an elective officials stay in office beyond three terms. A preventive suspension cannot simply be a term interruption because the suspended official continues to stay in office although he is barred from exercising the functions and prerogatives of the office within the suspension period. The best indicator of the suspended officials continuity in office is the absence of a permanent replacement and the lack of the authority to appoint one since no vacancy exists.44 (Emphasis supplied.) (5) Election Protest With regard to the effects of an election protest vis--vis the three-term limit rule, jurisprudence presents a more differing picture. The Courts pronouncements in Lonzanida v. Commission on Elections45 (1999), Ong v. Alegre46(2006), Rivera III v. Commission on Elections47 (2007) and Dizon v. Commission on Elections48 (2009), all protest cases, are illuminating. In Lonzanida, Romeo Lonzanida was elected and had served as municipal mayor of San Antonio, Zambales in terms 1989-1992, 1992-1995 and 1995-1998. However, his proclamation relative to the 1995 election was protested and was eventually declared by the RTC and then by COMELEC null and void on the ground of failure of elections. On February 27, 1998, or about three months before the May 1998 elections, Lonzanida vacated the mayoralty post in light of a COMELEC order and writ of execution it issued. Lonzanidas opponent assumed office for the remainder of the term. In the May 1998 elections, Lonzanida again filed his certificate of candidacy. His opponent, Efren Muli, filed a petition for disqualification on the ground that Lonzanida had already served three consecutive terms in the same post. The Court, citing Borja Jr., reiterated the two (2) conditions which must concur for the three-term limit to apply: "1) that the official concerned has been elected for three consecutive terms in the same local government post and 2) that he has fully served three consecutive terms."49 In view of Borja, Jr., the Court ruled that the foregoing requisites were absent in the case of Lonzanida. The Court held that Lonzanida cannot be considered as having been duly elected to the post in the May 1995 elections since his assumption of office as mayor "cannot be deemed to have been by reason of a valid election but by reason of a void proclamation." And as a corollary point, the Court stated that Lonzanida did not fully serve the 1995-1998 mayoral term having been ordered to vacate his post before the expiration of the term, a situation which amounts to an involuntary relinquishment of office.This Court deviated from the ruling in Lonzanida in Ong v. Alegre50owing to a variance in the factual situations attendant. In that case, Francis Ong (Ong) was elected and served as mayor of San Vicente, Camarines Norte for terms 19951998, 1998-2001, and 2001-2004. During the 1998 mayoralty elections, or during his supposed second term, the COMELEC nullified Ongs proclamation on the postulate that Ong lost during the 1998 elections. However, the COMELECs decision became final and executory on July 4, 2001, when Ong had fully served the 1998-2001 mayoralty term and was in fact already starting to serve the 2001-2004 term as mayor-elect of the municipality of San Vicente. In 2004, Ong filed his certificate of candidacy for the same position as mayor, which his opponent opposed for violation of the three-term limit rule. Ong invoked the ruling in Lonzanida and argued that he could not be considered as having served as mayor from 1998-2001 because he was not duly elected to the post and merely assumed office as a "presumptive winner." Dismissing Ongs argument, the Court held that his assumption of office as mayor for the term 1998-2001 constitutes "service for the full term" and hence, should be counted for purposes of the three-term limit rule. The Court modified the conditions stated in Lonzanida in the sense that Ongs service was deemed and counted as service for a full term because Ongs proclamation was voided only after the expiry of the term. The Court noted that the COMELEC decision which declared Ong as not having won the 1998 elections was "without practical and legal use and value" promulgated as it was after the contested term has expired. The Court further reasoned: Petitioner Francis Ongs contention that he was only a presumptive winner in the 1998 mayoralty derby as his proclamation was under protest did not make him less than a duly elected mayor. His proclamation as the duly

elected mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from start to finish of the term, should legally be taken as service for a full term in contemplation of the three-term rule. The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view would mean that Alegre would under the three-term rule - be considered as having served a term by virtue of a veritably meaningless electoral protest ruling, when another actually served such term pursuant to a proclamation made in due course after an election.51 (Emphasis supplied.) The Court did not apply the ruling in Lonzanida and ruled that the case of Ong was different, to wit: The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the result of the mayoralty election was declared a nullity for the stated reason of "failure of election", and, as a consequence thereof, the proclamation of Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the office of mayor. For another, Lonzanida did not fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a result of legal processes. In fine, there was an effective interruption of the continuity of service.52 (Emphasis supplied.) Ongs slight departure from Lonzanida would later find reinforcement in the consolidated cases of Rivera III v. Commission on Elections53 and Dee v. Morales.54 Therein, Morales was elected mayor of Mabalacat, Pampanga for the following consecutive terms: 1995-1998, 1998-2001 and 2001-2004. In relation to the 2004 elections, Morales again ran as mayor of the same town, emerged as garnering the majority votes and was proclaimed elective mayor for term commencing July 1, 2004 to June 30, 2007. A petition for quo warranto was later filed against Morales predicated on the ground that he is ineligible to run for a "fourth" term, having served as mayor for three consecutive terms. In his answer, Morales averred that his supposed 1998-2001 term cannot be considered against him, for, although he was proclaimed by the Mabalacat board of canvassers as elected mayor vis--vis the 1998 elections and discharged the duties of mayor until June 30, 2001, his proclamation was later nullified by the RTC of Angeles City and his closest rival, Anthony Dee, proclaimed the duly elected mayor. Pursuing his point, Morales parlayed the idea that he only served as a mere caretaker. The Court found Morales posture untenable and held that the case of Morales presents a factual milieu similar with Ong, not with Lonzanida. For ease of reference, the proclamation of Francis Ong, in Ong, was nullified, but after he, like Morales, had served the three-year term from the start to the end of the term. Hence, the Court concluded that Morales exceeded the three-term limit rule, to wit: Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001. He assumed the position. He served as mayor until June 30, 2001. He was mayor for the entire period notwithstanding the Decision of the RTC in the electoral protest case filed by petitioner Dee ousting him (respondent) as mayor. To reiterate, as held in Ong v. Alegre, such circumstance does not constitute an interruption in serving the full term. xxxx Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat continuously without any break since July 1, 1995. In just over a month, by June 30, 2007, he will have been mayor of Mabalacat for twelve (12) continuous years.55 (Emphasis supplied.) The Court ruled in Rivera that the fact of being belatedly ousted, i.e., after the expiry of the term, cannot constitute an interruption in Morales service of the full term; neither can Morales, as he argued, be considered merely a "caretaker of the office" or a mere "de facto officer" for purposes of applying the three-term limit rule. In a related 2009 case of Dizon v. Commission on Elections,56 the Court would again find the same Mayor Morales as respondent in a disqualification proceeding when he ran again as a mayoralty candidate during the 2007 elections for a term ending June 30, 2010. Having been unseated from his post by virtue of this Courts ruling in Rivera, Morales would argue this time around that the three-term limit rule was no longer applicable as to his 2007 mayoralty bid. This time, the Court ruled in his favor, holding that for purposes of the 2007 elections, the three-term limit rule was no longer a disqualifying factor as against Morales. The Court wrote: Our ruling in the Rivera case served as Morales involuntary severance from office with respect to the 2004-2007 term. Involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. Our decision in the Rivera case was promulgated on 9 May 2007 and was effective immediately. The next day, Morales notified the vice mayors office of our decision. The vice mayor assumed the office of the mayor from 17 May 2007 up to 30 June 2007. The assumption by the vice mayor of the office of the mayor, no matter how short it may seem to Dizon, interrupted Morales continuity of service. Thus, Morales did not hold office for the full term of 1 July 2004 to 30 June 2007.57 (Emphasis supplied) To summarize, hereunder are the prevailing jurisprudence on issues affecting consecutiveness of terms and/or involuntary interruption, viz:

1. When a permanent vacancy occurs in an elective position and the official merely assumed the position pursuant to the rules on succession under the LGC, then his service for the unexpired portion of the term of the replaced official cannot be treated as one full term as contemplated under the subject constitutional and statutory provision that service cannot be counted in the application of any term limit (Borja, Jr.). If the official runs again for the same position he held prior to his assumption of the higher office, then his succession to said position is by operation of law and is considered an involuntary severance or interruption (Montebon). 2. An elective official, who has served for three consecutive terms and who did not seek the elective position for what could be his fourth term, but later won in a recall election, had an interruption in the continuity of the officials service. For, he had become in the interim, i.e., from the end of the 3rd term up to the recall election, a private citizen (Adormeo and Socrates). 3. The abolition of an elective local office due to the conversion of a municipality to a city does not, by itself, work to interrupt the incumbent officials continuity of service (Latasa). 4. Preventive suspension is not a term-interrupting event as the elective officers continued stay and entitlement to the office remain unaffected during the period of suspension, although he is barred from exercising the functions of his office during this period (Aldovino, Jr.). 5. When a candidate is proclaimed as winner for an elective position and assumes office, his term is interrupted when he loses in an election protest and is ousted from office, thus disenabling him from serving what would otherwise be the unexpired portion of his term of office had the protest been dismissed (Lonzanida and Dizon). The break or interruption need not be for a full term of three years or for the major part of the 3-year term; an interruption for any length of time, provided the cause is involuntary, is sufficient to break the continuity of service (Socrates, citing Lonzanida). 6. When an official is defeated in an election protest and said decision becomes final after said official had served the full term for said office, then his loss in the election contest does not constitute an interruption since he has managed to serve the term from start to finish. His full service, despite the defeat, should be counted in the application of term limits because the nullification of his proclamation came after the expiration of the term (Ong and Rivera). The Case of Abundo Abundo argues that the RTC and the COMELEC erred in uniformly ruling that he had already served three consecutive terms and is, thus, barred by the constitutional three-term limit rule to run for the current 2010-2013 term. In gist, Abundo arguments run thusly: 1. Aldovino, Jr. is not on all fours with the present case as the former dealt with preventive suspension which does not interrupt the continuity of service of a term; 2. Aldovino, Jr. recognizes that the term of an elected official can be interrupted so as to remove him from the reach of the constitutional three-term limitation; 3. The COMELEC misinterpreted the meaning of "term" in Aldovino, Jr. by its reliance on a mere portion of the Decision and not on the unified logic in the disquisition; 4. Of appropriate governance in this case is the holding in Lonzanida58 and Rivera III v. Commission on Elections.59 5. The COMELEC missed the point when it ruled that there was no interruption in the service of Abundo since what he considered as an "interruption" of his 2004-2007 term occurred before his term started; and 6. To rule that the term of the protestee (Torres) whose proclamation was adjudged invalid was interrupted while that of the protestant (Abundo) who was eventually proclaimed winner was not so interrupted is at once absurd as it is illogical. Both respondents Vega and the COMELEC counter that the ratio decidendi of Aldovino, Jr. finds application in the instant case. The COMELEC ruled that Abundo did not lose title to the office as his victory in the protest case confirmed his entitlement to said office and he was only unable to temporarily discharge the functions of the office during the pendency of the election protest. We note that this present case of Abundo deals with the effects of an election protest, for which the rulings in Lonzanida, Ong, Rivera and Dizon appear to be more attuned than the case of Aldovino Jr., the interrupting effects of the imposition of a preventive suspension being the very lis mota in the Aldovino, Jr. case. But just the same, We find that Abundos case presents a different factual backdrop. Unlike in the abovementioned election protest cases wherein the individuals subject of disqualification were candidates who lost in the election protest and each declared loser during the elections, Abundo was the winner

during the election protest and was declared the rightful holder of the mayoralty post. Unlike Mayor Lonzanida and Mayor Morales, who were both unseated toward the end of their respective terms, Abundo was the protestant who ousted his opponent and had assumed the remainder of the term. Notwithstanding, We still find this Courts pronouncements in the past as instructive, and consider several doctrines established from the 1998 case of Borja, Jr. up to the most recent case of Aldovino Jr. in 2009, as potent aids in arriving at this Courts conclusion. The intention behind the three-term limit rule was not only to abrogate the "monopolization of political power" and prevent elected officials from breeding "proprietary interest in their position"60 but also to "enhance the peoples freedom of choice."61 In the words of Justice Vicente V. Mendoza, "while people should be protected from the evils that a monopoly of power may bring about, care should be taken that their freedom of choice is not unduly curtailed."62 In the present case, the Court finds Abundos case meritorious and declares that the two-year period during which his opponent, Torres, was serving as mayor should be considered as an interruption, which effectively removed Abundos case from the ambit of the three-term limit rule. It bears to stress at this juncture that Abundo, for the 2004 election for the term starting July 1, 2004 to June 30, 2007, was the duly elected mayor. Otherwise how explain his victory in his election protest against Torres and his consequent proclamation as duly elected mayor. Accordingly, the first requisite for the application of the disqualification rule based on the three-term limit that the official has been elected is satisfied. This thus brings us to the second requisite of whether or not Abundo had served for "three consecutive terms," as the phrase is juridically understood, as mayor of Viga, Catanduanes immediately before the 2010 national and local elections. Subsumed to this issue is of course the question of whether or not there was an effective involuntary interruption during the three three-year periods, resulting in the disruption of the continuity of Abundos mayoralty. The facts of the case clearly point to an involuntary interruption during the July 2004-June 2007 term. There can be no quibbling that, during the term 2004-2007, and with the enforcement of the decision of the election protest in his favor, Abundo assumed the mayoralty post only on May 9, 2006 and served the term until June 30, 2007 or for a period of a little over one year and one month. Consequently, unlike Mayor Ong in Ong and Mayor Morales in Rivera, it cannot be said that Mayor Abundo was able to serve fully the entire 2004-2007 term to which he was otherwise entitled. A "term," as defined in Appari v. Court of Appeals,63 means, in a legal sense, "a fixed and definite period of time which the law describes that an officer may hold an office."64 It also means the "time during which the officer may claim to hold office as a matter of right, and fixes the interval after which the several incumbents shall succeed one another."65 It is the period of time during which a duly elected official has title to and can serve the functions of an elective office. From paragraph (a) of Sec. 43, RA 7160,66 the term for local elected officials is three (3) years starting from noon of June 30 of the first year of said term. In the present case, during the period of one year and ten months, or from June 30, 2004 until May 8, 2006, Abundo cannot plausibly claim, even if he wanted to, that he could hold office of the mayor as a matter of right. Neither can he assert title to the same nor serve the functions of the said elective office. The reason is simple: during that period, title to hold such office and the corresponding right to assume the functions thereof still belonged to his opponent, as proclaimed election winner. Accordingly, Abundo actually held the office and exercised the functions as mayor only upon his declaration, following the resolution of the protest, as duly elected candidate in the May 2004 elections or for only a little over one year and one month. Consequently, since the legally contemplated full term for local elected officials is three (3) years, it cannot be said that Abundo fully served the term 2004-2007. The reality on the ground is that Abundo actually served less. Needless to stress, the almost two-year period during which Abundos opponent actually served as Mayor is and ought to be considered an involuntary interruption of Abundos continuity of service. An involuntary interrupted term, cannot, in the context of the disqualification rule, be considered as one term for purposes of counting the three-term threshold.67 The notion of full service of three consecutive terms is related to the concepts of interruption of service and voluntary renunciation of service. The word interruption means temporary cessation, intermission or suspension.68To interrupt is to obstruct, thwart or prevent.69 When the Constitution and the LGC of 1991 speak of interruption, the reference is to the obstruction to the continuance of the service by the concerned elected official by effectively cutting short the service of a term or giving a hiatus in the occupation of the elective office. On the other hand, the word "renunciation" connotes the idea of waiver or abandonment of a known right. To renounce is to give up, abandon, decline or resign.70 Voluntary renunciation of the office by an elective local official would thus mean to give up or abandon the title to the office and to cut short the service of the term the concerned elected official is entitled to. In its assailed Resolution, the COMELEC en banc, applying Aldovino, Jr.,71 held:

It must be stressed that involuntary interruption of service which jurisprudence deems an exception to the three-term limit rule, implies that the service of the term has begun before it was interrupted. Here, the respondent did not lose title to the office. As the assailed Resolution states: In the case at bar, respondent cannot be said to have lost his title to the office. On the contrary, he actively sought entitlement to the office when he lodged the election protest case. And respondent-appellants victory in the said case is a final confirmation that he was validly elected for the mayoralty post of Viga, Catanduanes in 2004-2007. At most, respondent-appellant was only unable to temporarily discharge the functions of the office to which he was validly elected during the pendency of the election protest, but he never lost title to the said office.72 (Emphasis added.) The COMELECs Second Division, on the other hand, pronounced that the actual length of service by the public official in a given term is immaterial by reckoning said service for the term in the application of the three-term limit rule, thus: As emphasized in the case of Aldovino, "this formulationno more than three consecutive termsis a clear command suggesting the existence of an inflexible rule." Therefore we cannot subscribe to the argument that since respondent Abundo served only a portion of the term, his 2004-2007 "term" should not be considered for purposes of the application of the three term limit rule. When the framers of the Constitution drafted and incorporated the three term limit rule, it is clear that reference is to the term, not the actual length of the service the public official may render. Therefore, ones actual service of term no matter how long or how short is immaterial.73 In fine, the COMELEC ruled against Abundo on the theory that the length of the actual service of the term is immaterial in his case as he was only temporarily unable to discharge his functions as mayor. The COMELECs case disposition and its heavy reliance on Aldovino, Jr. do not commend themselves for concurrence. The Court cannot simply find its way clear to understand the poll bodys determination that Abundo was only temporarily unable to discharge his functions as mayor during the pendency of the election protest. As previously stated, the declaration of being the winner in an election protest grants the local elected official the right to serve the unexpired portion of the term. Verily, while he was declared winner in the protest for the mayoralty seat for the 2004-2007 term, Abundos full term has been substantially reduced by the actual service rendered by his opponent (Torres). Hence, there was actual involuntary interruption in the term of Abundo and he cannot be considered to have served the full 2004-2007 term. This is what happened in the instant case. It cannot be overemphasized that pending the favorable resolution of his election protest, Abundo was relegated to being an ordinary constituent since his opponent, as presumptive victor in the 2004 elections, was occupying the mayoralty seat. In other words, for almost two years or from July 1, 2004 the start of the termuntil May 9, 2006 or during which his opponent actually assumed the mayoralty office, Abundo was a private citizen warming his heels while awaiting the outcome of his protest. Hence, even if declared later as having the right to serve the elective position from July 1, 2004, such declaration would not erase the fact that prior to the finality of the election protest, Abundo did not serve in the mayors office and, in fact, had no legal right to said position. Aldovino Jr. cannot possibly lend support to respondents cause of action, or to COMELECs resolution against Abundo. In Aldovino Jr., the Court succinctly defines what temporary inability or disqualification to exercise the functions of an elective office means, thus: On the other hand, temporary inability or disqualification to exercise the functions of an elective post, even if involuntary, should not be considered an effective interruption of a term because it does not involve the loss of title to office or at least an effective break from holding office; the office holder, while retaining title, is simply barred from exercising the functions of his office for a reason provided by law.74 We rule that the above pronouncement on preventive suspension does not apply to the instant case. Verily, it is erroneous to say that Abundo merely was temporarily unable or disqualified to exercise the functions of an elective post. For one, during the intervening period of almost two years, reckoned from the start of the 2004-2007 term, Abundo cannot be said to have retained title to the mayoralty office as he was at that time not the duly proclaimed winner who would have the legal right to assume and serve such elective office. For another, not having been declared winner yet, Abundo cannot be said to have lost title to the office since one cannot plausibly lose a title which, in the first place, he did not have. Thus, for all intents and purposes, even if the belated declaration in the election protest accords him title to the elective office from the start of the term, Abundo was not entitled to the elective office until the election protest was finally resolved in his favor.
1w phi 1

Consequently, there was a hiatus of almost two years, consisting of a break and effective interruption of his service, until he assumed the office and served barely over a year of the remaining term. At this juncture, We observe the apparent similarities of Mayor Abundos case with the cases of Mayor Talaga in Adormeo and Mayor Hagedorn in Socrates as Mayors Talaga and Hagedorn were not proclaimed winners since they were non-candidates in the regularelections. They were proclaimed winners during the recall elections and clearly were not able to fully serve the terms of the deposed incumbent officials. Similar to their cases where the Court deemed their terms as

involuntarily interrupted, Abundo also became or was a private citizen during the period over which his opponent was serving as mayor. If in Lonzanida, the Court ruled that there was interruption in Lonzanidas service because of his subsequent defeat in the election protest, then with more reason, Abundos term for 2004-2007 should be declared interrupted since he was not proclaimed winner after the 2004 elections and was able to assume the office and serve only for a little more than a year after winning the protest. As aptly stated in Latasa, to be considered as interruption of service, the "law contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit."75 Applying the said principle in the present case, there is no question that during the pendency of the election protest, Abundo ceased from exercising power or authority over the good people of Viga, Catanduanes. Consequently, the period during which Abundo was not serving as mayor should be considered as a rest period or break in his service because, as earlier stated, prior to the judgment in the election protest, it was Abundos opponent, Torres, who was exercising such powers by virtue of the still then valid proclamation. As a final note, We reiterate that Abundos case differs from other cases involving the effects of an election protest because while Abundo was, in the final reckoning, the winning candidate, he was the one deprived of his right and opportunity to serve his constituents. To a certain extent, Abundo was a victim of an imperfect election system. While admittedly the Court does not possess the mandate to remedy such imperfections, the Constitution has clothed it with enough authority to establish a fortress against the injustices it may bring. In this regard, We find that a contrary ruling would work damage and cause grave injustice to Abundoan elected official who was belatedly declared as the winner and assumed office for only a short period of the term. If in the cases of Lonzanida and Dizon, this Court ruled in favor of a losing candidateor the person who was adjudged not legally entitled to hold the contested public office but held it anywayWe find more reason to rule in favor of a winning candidate-protestant who, by popular vote, deserves title to the public office but whose opportunity to hold the same was halted by an invalid proclamation. Also, more than the injustice that may be committed against Abundo is the injustice that may likewise be committed against the people of Viga, Catanduanes by depriving them of their right to choose their leaders. Like the framers of the Constitution, We bear in mind that We "cannot arrogate unto ourselves the right to decide what the people want"76 and hence, should, as much as possible, "allow the people to exercise their own sense of proportion and rely on their own strength to curtail the power when it overreaches itself."77 For democracy draws strength from the choice the people make which is the same choice We are likewise bound to protect. WHEREFORE, the instant petition is PARTLY GRANTED. Accordingly, the assailed February 8, 2012 Resolution of the Commission on Elections Second Division and May 10, 2012 Resolution of the Commission on Elections en banc in EAC (AE) No. A-25-2010 and the Decision of the Regional Trial Court (RTC) of Virac, Catanduanes, Branch 43, dated August 9, 2010, in Election Case No. 55, are hereby REVERSED and SET ASIDE. Petitioner Abelardo Abundo, Sr. is DECLARED ELIGIBLE for the position of Mayor of Viga, Catanduanes to which he was duly elected in the May 2010 elections and is accordingly ordered IMMEDIATELY REINSTATED to said position. Withal, Emeterio M. Tarin and Cesar O. Cervantes are ordered to immediately vacate the positions of Mayor and Vice-Mayor of Viga, Catanduanes, respectively, and shall revert to their original positions of Vice-Mayor and First Councilor, respectively, upon receipt of this Decision. The TRO issued by the Court on July 3, 2012 is hereby LIFTED. This Decision is immediately executory. SO ORDERED.

G.R. No. 133495 September 3, 1998 BENJAMIN U. BORJA, JR., petitioner, vs. COMMISSION ON ELECTIONS and JOSE T. CAPCO, JR., respondents.

MENDOZA, J.:
This case presents for determination the scope of the constitutional provision barring elective local officials, with the exception of barangay officials, from serving more than three consecutive terms. In particular, the question is whether a vice-mayor who succeeds to the office of mayor by operation of law and serves the remainder of the term is considered to have served a term in that office for the purpose of the three-term limit.

Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on January 18, 1988 for a term ending June 30, 1992. On September 2, 1989, he became mayor, by operation of law, upon the death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was elected mayor for a term of three years which ended on June 30, 1995. On May 8, 1995, he was reelected mayor for another term of three years ending June 30, 1998. 1
On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of Pateros relative to the May 11, 1998 elections. Petitioner Benjamin U. Borja Jr., who was also a candidate for mayor, sought Capco's disqualification on the theory that the latter would have already served as mayor for three consecutive terms by June 30, 1998 and would therefore be ineligible to serve for another term after that.

On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of petitioner and declared private respondent Capco disqualified from running for reelection as mayor of Pateros. 2 However, on motion of
private respondent the COMELEC en banc, voting 5-2, reversed the decision and declared Capco eligible to run for mayor in the May 11, 1998 elections. 3 The majority stated in its decision:

In both the Constitution and the Local Government Code, the three-term limitation refers to the term of office for which the local official was elected. It made no reference to succession to an office to which he was not elected. In the case before the Commission, respondent Capco was not elected to the position of Mayor in the January 18, 1988 local elections. He succeeded to such office by operation of law and served for the unexpired term of his predecessor. Consequently, such succession into office is not counted as one (1) term for purposes of the computation of the threeterm limitation under the Constitution and the Local Government Code. Accordingly, private respondent was voted for in the elections. He received 16,558 votes against petitioner's 7,773 votes and was proclaimed elected by the Municipal Board of Canvassers. This is a petition for certiorari brought to set aside the resolution, dated My 7, 1998, of the COMELEC and to seek a declaration that private respondent is disqualified to serve another term as mayor of Pateros, Metro Manila. Petitioner contends that private respondent Capco's service as mayor from September 2, 1989 to June 30, 1992 should be considered as service for one full term, and since he thereafter served from 1992 to 1998 two more terms as mayor, he should be considered to have served three consecutive terms within the contemplation of Art. X, 8 of the Constitution and 43(b) of the Local Government Code. Petitioner stresses the fact that, upon the death of Mayor Cesar Borja on September 2, 1989, private respondent became the mayor and thereafter served the remainder of the term. Petitioner argues that it is irrelevant that private respondent became mayor by succession because the purpose of the constitutional provision in limiting the number of terms elective local officials may serve is to prevent a monopolization of political power. This contention will not bear analysis. Article X, 8 of the Constitution provides: Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. This provision is restated in 43(b) of the Local Government Code (R.A. No. 7160): Sec. 43. Term of Office. . . . (b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected. . . .

First, to prevent the establishment of political dynasties is not the only policy embodied in the constitutional provision in question. The other policy is that of enhancing the freedom of choice of the people. To consider, therefore, only stay in office regardless of how the official concerned came to that office whether by election or by succession by operation of law would be to disregard one of the purposes of the constitutional provision in question. Thus, a consideration of the historical background of Article X, 8 of the Constitution reveals that the members of the Constitutional Commission were as much concerned with preserving the freedom of choice of the people as they were with preventing the monopolization of political power. Indeed, they rejected a proposal put forth by Commissioner Edmundo F. Garcia that after serving three consecutive terms or nine years there should be no further reelection for local and legislative officials. Instead, they adopted the alternative proposal of Commissioner Christian Monsod that such officials be simply barred from running for the same position in the of the succeeding election following the expiration of the third consecutive term. 4 Monsod warned against "prescreening candidates
[from] whom the people will choose" as a result of the proposed absolute disqualification, considering that the draft constitution contained provisions "recognizing people's power." 5 Commissioner Blas F. Ople, who supported the Monsod proposal, said:

The principle involved is really whether this Commission shall impose a temporary or a perpetual disqualification on those who have served their terms in accordance with the limits on consecutive service as decided by the Constitutional Commission. I would be very wary about this Commission exercising a sort of omnipotent power in order to disqualify those who will already have served their terms from perpetuating themselves in office. I think the Commission achieves its purpose in establishing safeguards against the excessive accumulation of power as a result of consecutive terms. We do put a cap on consecutive service in the case of the President, six years, in the case of the Vice-President, unlimited; and in the case of the Senators, one reelection. In the case of the Members of Congress, both from the legislative districts and from the party list and sectoral representation, this is now under discussion and later on the policy concerning local officials will be taken up by the Committee on Local Governments. The principle remains the same. I think we want to prevent future situations where, as a result of continuous service and frequent reelections, officials from the President down to the municipal mayor tend to develop a proprietary interest in their positions and to accumulate those powers and perquisites that permit them to stay on indefinitely or to transfer these posts to members of their families in a subsequent election. I think that is taken care of because we put a gap on the continuity or the unbroken service of all of these officials. But where we now decide to put these prospective servants of the people or politicians, if we want to use the coarser term, under a perpetual disqualification, I have a feeling that we are taking away too much from the people, whereas we should be giving as much to the people as we can in terms of their own freedom of choice. . . . 6
Other commissioners went on record against "perpetually disqualifying" elective officials who have served a certain number of terms as this would deny the right of the people to choose. As Commissioner Yusup R. Abubakar asked, "why should we arrogate unto ourselves the right to decide what the people want?" 7 Commissioner Felicitas S. Aquino spoke in the same vein when she called on her colleagues to "allow the people to exercise their own sense of proportion and [rely] on their own strength to curtail power when it overreaches itself." 8 Commissioner Teodoro C. Bacani stressed: "Why should we not leave [perpetual disqualification after serving a number of terms] to the premise accepted by practically everybody here that our people are politically mature? Should we use this assumption only when it is convenient for us, and not when it may also lead to a freedom of choice for the people and for politicians who may aspire to serve them longer?" 9 Two ideas thus emerge from a consideration of the proceedings of the Constitutional Commission. The first is the notion ofservice of term, derived from the concern about the accumulation of power as a result of a prolonged stay in office. The second is the idea of election, derived from the concern that the right of the people to choose those whom they wish to govern them be preserved.

It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did so on the assumption that the officials concerned were serving by reason of election. This is clear from the following exchange in the Constitutional Commission concerning term limits, now embodied in Art. VI, 4 and 7 of the Constitution, for members of Congress: MR. GASCON. I would like to ask a question with regard to the issue after the second term. We will allow the Senator to rest for a period of time before he can run again? MR. DAVIDE. That is correct. MR. GASCON. And the question that we left behind before if the Gentlemen will remember was: How long will that period of rest be? Will it be one election which is three years or one term which is six years?

MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed the view that during the election following the expiration of the first 12 years, whether such election will be on the third year or on the sixth year thereafter, this particular member of the Senate can run. So, it is not really a period of hibernation for six years. That was the Committee's stand. 10 Indeed a fundamental tenet of representative democracy is that the people should be allowed to choose those whom they please to govern them. 11 To bar the election of a local official because he has already served three terms,
although the first as a result of succession by operation of law rather than election, would therefore be to violate this principle.

Second, not only historical examination but textual analysis as well supports the ruling of the COMELEC that Art. X, 8 contemplates service by local officials for three consecutive terms as a result of election. The first sentence speaks of "the term of office of elective local officials" and bars "such official[s]" from serving for more than three consecutive terms. The second sentence, in explaining when an elective local official may be deemed to have served his full term of office, states that "voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected." The term served must therefore be one "for which [the official concerned] was elected." The purpose of this provision is to prevent a circumvention of the limitation on the number of terms an elective local official may serve. Conversely, if he is not serving a term for which he was elected because he is simply continuing the service of the official he succeeds, such official cannot be considered to have fully served the term notwithstanding his voluntary renunciation of office prior to its expiration. Reference is made to Commissioner Bernas' comment on Art. VI, 7, which similarly bars members of the House of Representatives from serving for more than three terms. Commissioner Bernas states that "if one is elected Representative to serve the unexpired term of another, that unexpired term, no matter how short, will be considered one term for the purpose of computing the number of successive terms allowed." 12
This is actually based on the opinion expressed by Commissioner Davide in answer to a query of Commissioner Suarez: "For example, a special election is called for a Senator, and the Senator newly elected would have to serve the unexpired portion of the term. Would that mean that serving the unexpired portion of the term is already considered one term? So, half a term, which is actually the correct statement, plus one term would disqualify the Senator concerned from running? Is that the meaning of this provision on disqualification, Madam President?" Commissioner Davide said: "Yes, because we speak of "term," and if there is a special election, he will serve only for the unexpired portion of that particular term plus one more term for the Senator and two more terms for the Members of the Lower House." 13 There is a difference, however, between the case of a vice-mayor and that of a member of the House of Representatives who succeeds another who dies, resigns, becomes incapacitated, or is removed from office. The vice-mayor succeeds to the mayorship by operation of law. 14 On the other hand, the Representative is elected to fill the vacancy. 15 In a real sense, therefore, such Representative serves a term for which he was elected. As the purpose of the constitutional provision is to limit the right to be elected and to serve in Congress, his service of the unexpired term is rightly counted as his first term. Rather than refute what we believe to be the intendment of Art. X, 8 with regard to elective local officials, the case of a Representative who succeeds another confirms the theory.

Petitioner also cites Art. VII, 4 of the Constitution which provides for succession of the Vice-President to the Presidency in case of vacancy in that office. After stating that "The President shall not be eligible for any reelection," this provision says that "No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time." Petitioner contends that, by analogy, the vicemayor should likewise be considered to have served a full term as mayor if he succeeds to the latter's office and serves for the remainder of the term. The framers of the Constitution included such a provision because, without it, the Vice-President, who simply steps into the Presidency by succession, would be qualified to run President even if he has occupied that office for more than four years. The absence of a similar provision in Art. X, 8 on elective local officials throws in bold relief the difference between the two cases. It underscores the constitutional intent to cover only the terms of office to which one may have been elected for purposes of the three-term limit on local elective officials, disregarding for this purpose service by automatic succession. There is another reason why the Vice-President who succeeds to the Presidency and serves in that office for more than four years is ineligible for election as President. The Vice-President is elected primarily to succeed the President in the event of the latter's death, permanent disability, removal, or resignation. While he may be appointed to the cabinet, his becoming, so is entirely dependent on the good graces of the President. In running for VicePresident, he may thus be said to also seek the Presidency. For their part, the electors likewise choose as VicePresident the candidate who they think can fill the Presidency in the event it becomes vacant. Hence, service in the Presidency for more than four years may rightly be considered as service for a full term. This is not so in the case of the vice-mayor. Under the Local Government Code, he is the presiding officer of the sanggunian and he appoints all officials and employees of such local assembly. He has distinct powers and functions, succession to mayorship in the event of vacancy therein being only one of them. 16 It cannot be said of him, as much as of the Vice-President in the event of a vacancy in the Presidency, that, in

running for vice-mayor, he also seeks the mayorship. His assumption of the mayorship in the event of vacancy is more a matter of chance than of design. Hence, his service in that office should not be counted in the application of any term limit.

To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well asthe right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply. This point can be made clearer by considering the following cases or situations: Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the death of the incumbent. Six months before the next election, he resigns and is twice elected thereafter. Can he run again for mayor in the next election? Yes, because although he has already first served as mayor by succession and subsequently resigned from office before the full term expired, he has not actually served three full terms in all for the purpose of applying the term limit. Under Art. X, 8, voluntary renunciation of the office is not considered as an interruption in the continuity of his service for the full term only if the term is one "for which he was elected." Since A is only completing the service of the term for which the deceased and not he was elected, A cannot be considered to have completed one term. His resignation constitutes an interruption of the full term. Case No. 2. Suppose B is elected mayor and, during his first term, he is twice suspended for misconduct for a total of 1 year. If he is twice reelected after that, can he run for one more term in the next election? Yes, because he has served only two full terms successively. In both cases, the mayor is entitled to run for reelection because the two conditions for the application of the disqualification provisions have not concurred, namely, that the local official concerned has been elected three consecutive times and that he has fully served three consecutive terms. In the first case, even if the local official is considered to have served three full terms notwithstanding his resignation before the end of the first term, the fact remains that he has not been elected three times. In the second case, the local official has been elected three consecutive times, but he has not fully served three consecutive terms. Case No. 3. The case of vice-mayor C who becomes mayor by succession involves a total failure of the two conditions to concur for the purpose of applying Art. X, 8. Suppose he is twice elected after that term, is he qualified to run again in the next election? Yes, because he was not elected to the office of mayor in the first term but simply found himself thrust into it by operation of law. Neither had he served the full term because he only continued the service, interrupted by the death, of the deceased mayor. To consider C in the third case to have served the first term in full and therefore ineligible to run a third time for reelection would be not only to falsify reality but also to unduly restrict the right of the people to choose whom they wish to govern them. If the vice-mayor turns out to be a bad mayor, the people can remedy the situation by simply not reelecting him for another term. But if, on the other hand, he proves to be a good mayor, there will be no way the people can return him to office (even if it is just the third time he is standing for reelection) if his service of the first term is counted as one for the purpose of applying the term limit. To consider C as eligible for reelection would be in accord with the understanding of the Constitutional Commission that while the people should be protected from the evils that a monopoly of political power may bring about, care should be taken that their freedom of choice is not unduly curtailed. WHEREFORE, the petition is DISMISSED. SO ORDERED.

G.R. No. 180444

April 8, 2008

FEDERICO T. MONTEBON and ELEANOR M. ONDOY, petitioners, vs. COMMISSION ON ELECTION and SESINANDO F. POTENCIOSO, JR., respondents. DECISION YNARES-SANTIAGO, J.: This petition1 for certiorari assails the June 2, 2007 Resolution2 of the First Division of the Commission on Elections (COMELEC) in SPA No. 07-421, denying the petition for disqualification filed by petitioners Federico T. Montebon and Eleanor M. Ondoy against respondent Sesinando F. Potencioso, Jr., as well as the September 28, 2007 Resolution3 of the COMELEC En Banc denying the motion for reconsideration. Petitioners Montebon and Ondy and respondent Potencioso, Jr. were candidates for municipal councilor of the Municipality of Tuburan, Cebu for the May 14, 2007 Synchronized National and Local Elections. On April 30, 2007, petitioners and other candidates4 for municipal councilor filed a petition for disqualification against respondent with the COMELEC alleging that respondent had been elected and served three consecutive terms as municipal councilor in 1998-2001, 2001-2004, and 2004-2007. Thus, he is proscribed from running for the same position in the 2007 elections as it would be his fourth consecutive term. In his answer, respondent admitted that he had been elected for three consecutive terms as municipal councilor. However, he claimed that the service of his second term in 2001-2004 was interrupted on January 12, 2004 when he succeeded as vice mayor of Tuburan due to the retirement of Vice Mayor Petronilo L. Mendoza. Consequently, he is not disqualified from vying for the position of municipal councilor in the 2007 elections. In the hearing of May 10, 2007, the parties were directed to file their respective memoranda. In petitioners memorandum, they maintained that respondents assumption of office as vice-mayor in January 2004 should not be considered an interruption in the service of his second term since it was a voluntary renunciation of his office as municipal councilor. They argued that, according to the law, voluntary renunciation of the office for any length of time shall not be considered an interruption in the continuity of service for the full term for which the official concerned was elected. On the other hand, respondent alleged that a local elective official is not disqualified from running for the fourth consecutive time to the same office if there was an interruption in one of the previous three terms. On June 2, 2007, the COMELEC First Division denied the petition for disqualification ruling that respondents assumption of office as vice-mayor should be considered an interruption in the continuity of his service. His second term having been involuntarily interrupted, respondent should thus not be disqualified to seek reelection as municipal councilor.5 On appeal, the COMELEC En Banc upheld the ruling of the First Division, as follows: Respondents assumption to the office of the vice-mayor of Tuburan in January 2004 during his second term as councilor is not a voluntary renunciation of the latter office. The same therefore operated as an effective disruption in the full service of his second term as councilor. Thus, in running for councilor again in the May 14, 2007 Elections, respondent is deemed to be running only for a second consecutive term as councilor of Tuburan, the first consecutive term fully served being his 2004-2007 term. Petitioner Montebons and Ondoys June 9, 2007 manifestation and omnibus motion are hereby declared moot and academic with the instant disposition of their motion for reconsideration. WHEREFORE, premises considered, petitioners motion for reconsideration is hereby DENIED for lack of merit. SO ORDERED.6 Petitioners filed the instant petition for certiorari on the ground that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in ruling that respondents assumption of office as vice -mayor in January 2004 interrupted his 2001-2004 term as municipal councilor. The petition lacks merit. The 1987 Constitution bars and disqualifies local elective officials from serving more than three consecutive terms in the same post. Section 8, Article X thereof states:

Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law shall be three years and no such officials shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Section 43 of the Local Government Code also provides: Sec. 43. Term of Office. (b) No local elective official shall serve for more than three consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected. In Lonzanida v. Commission on Elections,7 the Court held that the two conditions for the application of the disqualification must concur: 1) that the official concerned has been elected for three consecutive terms in the same local government post; and 2) that he has fully served three consecutive terms.8 In Borja, Jr. v. Commission on Elections,9 the Court emphasized that the term limit for elective officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Thus, for the disqualification to apply, it is not enough that the official has been elected three consecutive times; he must also have served three consecutive terms in the same position.10 While it is undisputed that respondent was elected municipal councilor for three consecutive terms, the issue lies on whether he is deemed to have fully served his second term in view of his assumption of office as vice-mayor of Tuburan on January 12, 2004. Succession in local government offices is by operation of law.11 Section 4412 of Republic Act No. 7160, otherwise known as the Local Government Code, provides that if a permanent vacancy occurs in the office of the vice mayor, the highest ranking sanggunian member shall become vice mayor. Thus: SEC. 44. Permanent Vacancies in the Offices of the Governor, Vice Governor, Mayor, and Vice Mayor. (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice governor or vice mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor or vice mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice governor, mayor or vice mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein. x x x In this case, a permanent vacancy occurred in the office of the vice mayor due to the retirement of Vice Mayor Mendoza. Respondent, being the highest ranking municipal councilor, succeeded him in accordance with law. It is clear therefore that his assumption of office as vice-mayor can in no way be considered a voluntary renunciation of his office as municipal councilor. In Lonzanida v. Commission on Elections, the Court explained the concept of voluntary renunciation as follows: The second sentence of the constitutional provision under scrutiny states, Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected. The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the peoples choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service.13(Emphasis added) Thus, respondents assumption of office as vice-mayor in January 2004 was an involuntary severance from his office as municipal councilor, resulting in an interruption in the service of his 2001-2004 term. It cannot be deemed to have been by reason of voluntary renunciation because it was by operation of law. We quote with approval the ruling of the COMELEC that The legal successor is not given any option under the law on whether to accept the vacated post or not. Section 44 of the Local Government Code makes no exception. Only if the highest-ranking councilor is permanently unable to succeed to the post does the law speak of alternate succession. Under no circumstances can simple refusal of the official concerned be considered as permanent inability within the contemplation of law. Essentially therefore, the successor cannot refuse to assume the office that he is mandated to occupy by virtue of succession. He can only do so if for some reason he is permanently unable to succeed and occupy the post vacated. xxxx

Thus, succession by law to a vacated government office is characteristically not voluntary since it involves the performance of a public duty by a government official, the non-performance of which exposes said official to possible administrative and criminal charges of dereliction of duty and neglect in the performance of public functions. It is therefore more compulsory and obligatory rather than voluntary.14 WHEREFORE, the petition is DISMISSED for lack of merit. The June 2, 2007 Resolution of the COMELEC First Division denying the petition for disqualification and the September 28, 2007 Resolution of the COMELEC en banc denying the motion for reconsideration, areAFFIRMED. SO ORDERED.

G.R. No. 154512

November 12, 2002

VICTORINO DENNIS M. SOCRATES, Mayor of Puerto Princesa City, petitioner, vs. THE COMMISSION ON ELECTIONS, THE PREPARATORY RECALL ASSEMBLY (PRA) of Puerto Princesa City, PRA Interim Chairman Punong Bgy. MARK DAVID HAGEDORN, PRA Interim Secretary Punong Bgy. BENJAMIN JARILLA, PRA Chairman and Presiding Officer Punong Bgy. EARL S. BUENVIAJE and PRA Secretary Punong Bgy. CARLOS ABALLA, JR. respondents. ----------------------------G.R. No. 154683 November 12, 2002

VICENTE S. SANDOVAL, JR., petitioner, vs. THE COMMISSION ON ELECTIONS, respondent. ----------------------------G.R. Nos. 155083-84 November 12, 2002

MA. FLORES P. ADOVO, MERCY E. GILO and BIENVENIDO OLLAVE, SR., petitioners, vs. THE COMMISSION ON ELECTIONS, and EDWARD S. HAGEDORN, respondents. DECISION CARPIO, J.: The Case Before us are consolidated petitions for certiorari1 seeking the reversal of the resolutions issued by the Commission on Elections ("COMELEC" for brevity) in relation to the recall election for mayor of Puerto Princesa City, Palawan. The Antecedents On July 2, 2002, 312 out of 528 members of the then incumbent barangay officials of the Puerto Princesa convened themselves into a Preparatory Recall Assembly ("PRA" for brevity) at the Gymnasium of Barangay San Jose from 9:00 a.m. to 12:00 noon. The PRA was convened to initiate the recall2 of Victorino Dennis M. Socrates ("Socrates" for brevity) who assumed office as Puerto Princesa's mayor on June 30, 2001. The members of the PRA designated Mark David M. Hagedorn, president of the Association of Barangay Captains, as interim chair of the PRA. On the same date, the PRA passed Resolution No. 01-02 ("Recall Resolution" for brevity) which declared its loss of confidence in Socrates and called for his recall. The PRA requested the COMELEC to schedule the recall election for mayor within 30 days from receipt of the Recall Resolution. On July 16, 2002, Socrates filed with the COMELEC a petition, docketed as E.M. No. 02-010 (RC), to nullify and deny due course to the Recall Resolution. On August 14, 2002, the COMELEC en banc3 promulgated a resolution dismissing for lack of merit Socrates' petition. The COMELEC gave due course to the Recall Resolution and scheduled the recall election on September 7, 2002. On August 21, 2002, the COMELEC en banc promulgated Resolution No. 5673 prescribing the calendar of activities and periods of certain prohibited acts in connection with the recall election. The COMELEC fixed the campaign period from August 27, 2002 to September 5, 2002 or a period of 10 days. On August 23, 2002, Edward M. Hagedorn ("Hagedorn" for brevity) filed his certificate of candidacy for mayor in the recall election. On August 17, 2002, Ma. Flores F. Adovo ("Adovo" for brevity) and Merly E. Gilo ("Gilo" for brevity) filed a petition before the COMELEC, docketed as SPA No. 02-492, to disqualify Hagedorn from running in the recall election and to cancel his certificate of candidacy. On August 30, 2002, a certain Bienvenido Ollave, Sr. ("Ollave" for brevity) filed a petition-in-intervention in SPA No. 02-492 also seeking to disqualify Hagedorn. On the same date, a certain Genaro V. Manaay filed another petition, docketed as SPA No. 02-539, against Hagedorn alleging substantially the same facts and involving the same issues. The petitions were all anchored on the ground that "Hagedorn is disqualified from running for a fourth consecutive term, having been elected and having served as mayor of the city

for three (3) consecutive full terms immediately prior to the instant recall election for the same post." Subsequently, SPA Nos. 02-492 and 02-539 were consolidated. In a resolution promulgated on September 20, 2002, the COMELEC's First Division4 dismissed for lack of merit SPA Nos. 02-492 and 02-539. The COMELEC declared Hagedorn qualified to run in the recall election. The COMELEC also reset the recall election from September 7, 2002 to September 24, 2002. On September 23, 2002, the COMELEC en banc promulgated a resolution denying the motion for reconsideration of Adovo and Gilo. The COMELEC affirmed the resolution declaring Hagedorn qualified to run in the recall election. Hence, the instant consolidated petitions. G.R. No. 154512 Petitioner Socrates seeks to nullify the COMELEC en banc resolution dated August 14, 2002 in E.M. No. 02-010 (RC) which gave due course to the Recall Resolution and scheduled the recall election on September 7, 2002. Socrates alleges that the COMELEC gravely abused its discretion in upholding the Recall Resolution. Socrates cites the following circumstances as legal infirmities attending the convening of the PRA and its issuance of the Recall Resolution: (1) not all members of the PRA were notified of the meeting to adopt the resolution; (2) the proof of service of notice was palpably and legally deficient; (3) the members of the PRA were themselves seeking a new electoral mandate from their respective constituents; (4) the adoption of the resolution was exercised with grave abuse of authority; and (5) the PRA proceedings were conducted in a manner that violated his and the public's constitutional right to information. G.R. No. 154683 Petitioner Vicente S. Sandoval, Jr. seeks to annul COMELEC Resolution No. 5673 dated August 21, 2002 insofar as it fixed the recall election on September 7, 2002, giving the candidates only a ten-day campaign period. He prayed that the COMELEC be enjoined from holding the recall election on September 7, 2002 and that a new date be fixed giving the candidates at least an additional 15 days to campaign. In a resolution dated September 3, 2002, the Court en banc enjoined the COMELEC from implementing Resolution No. 5673 insofar as it fixed the date of the recall election on September 7, 2002. The Court directed the COMELEC to give the candidates an additional fifteen 15 days from September 7, 2002 within which to campaign. Accordingly, on September 9, 2002, the COMELEC en banc issued Resolution No. 5708 giving the candidates an additional 15 days from September 7, 2002 within which to campaign. Thus, the COMELEC reset the recall election to September 24, 2002. G.R. Nos. 155083-84 Petitioners Adovo, Gilo and Ollave assail the COMELEC's resolutions dated September 20, 2002 and September 23, 2002 in SPA Nos. 02-492 and 02-539 declaring Hagedorn qualified to run for mayor in the recall election. They likewise prayed for the issuance of a temporary restraining order to enjoin the proclamation of the winning candidate in the recall election. Petitioners argue that the COMELEC gravely abused its discretion in upholding Hagedorn's qualification to run for mayor in the recall election despite the constitutional and statutory prohibitions against a fourth consecutive term for elective local officials. In a resolution dated September 24, 2002, the Court ordered the COMELEC to desist from proclaiming any winning candidate in the recall election until further orders from the Court. Petitioners were required to post aP20,000 bond. On September 27, 2002, Socrates filed a motion for leave to file an attached petition for intervention seeking the same reliefs as those sought by Adovo, Gilo and Ollave. In the meantime, Hagedorn garnered the highest number of votes in the recall election with 20,238 votes. Rival candidates Socrates and Sandoval obtained 17,220 votes and 13,241 votes, respectively. Hagedorn filed motions to lift the order restraining the COMELEC from proclaiming the winning candidate and to allow him to assume office to give effect to the will of the electorate. On October 1, 2002, the Court granted Socrates' motion for leave to file a petition for intervention. The Issues The issues for resolution of the Court are:

1. In G.R. No. 154512, whether the COMELEC committed grave abuse of discretion in giving due course to the Recall Resolution and scheduling the recall election for mayor of Puerto Princesa. 2. In G.R. Nos.155083-84, whether Hagedorn is qualified to run for mayor in the recall election of Puerto Princesa on September 24, 2002. In G.R. No. 154683, the issue of whether the COMELEC committed grave abuse of discretion in fixing a campaign period of only 10 days has become moot. Our Resolution of September 3, 2002 and COMELEC Resolution No. 5708 granted an additional 15 days for the campaign period as prayed for by petitioner. First Issue: Validity of the Recall Resolution. Petitioner Socrates argues that the COMELEC committed grave abuse of discretion in upholding the Recall Resolution despite the absence of notice to 130 PRA members and the defective service of notice to other PRA members. The COMELEC, however, found that "On various dates, in the month of June 2002, the proponents for the Recall of incumbent City Mayor Victorino Dennis M. Socrates sent notices of the convening of the PRA to the members thereof pursuant to Section 70 of the Local Government Code. Copies of the said notice are in Volumes I and II entitled Notices to PRA. Likewise, Proof of Service for each of the said notices were attached to the Petition and marked as Annex "G" of Volumes II and III of the Petition. Notices were likewise posted in conspicuous places particularly at the Barangay Hall. Photos establishing the same were attached to the Petition and marked as Annex "H". The proponents likewise utilized the broadcast mass media in the dissemination of the convening of the PRA. Notices of the convening of the Puerto Princesa PRA were also sent to the following: [a list of 25 names of provincial elective officials, print and broadcast media practitioners, PNP officials, COMELEC city, regional and national officials, and DILG officials]. xxx The City Election Officer of Puerto Princesa City in her Certification dated 10 July 2002 certified that upon a 'thorough and careful verification of the signatures appearing in PRA Resolution 01-02, x x x the majority of all members of the PRA concerned approved said resolution.' She likewise certified 'that not a single member/signatory of the PRA complained or objected as to the veracity and authenticity of their signatures.' The Provincial Election Supervisor of Palawan, Atty. Urbano Arlando, in his Indorsement dated 10 July 2002, stated, 'upon proper review, all documents submitted are found in order.' The Acting Director IV, Region IV, in his study dated 30 July 2002 submitted the following recommendations: 'This Office, after evaluating the documents filed, finds the instant Petition sufficient in form and substance. That the PRA was validly constituted and that the majority of all members thereof approved Resolution No. 01-02 calling for the recall of Mayor Victorino Dennis M. Socrates.' x x x ." This Court is bound by the findings of fact of the COMELEC on matters within the competence and expertise of the COMELEC, unless the findings are patently erroneous. In Malonzo v. COMELEC,5 which also dealt with alleged defective service of notice to PRA members, we ruled that "Needless to state, the issue of propriety of the notices sent to the PRA members is factual in nature, and the determination of the same is therefore a function of the COMELEC. In the absence of patent error, or serious inconsistencies in the findings, the Court should not disturb the same. The factual findings of the COMELEC, based on its own assessments and duly supported by gathered evidence, are conclusive upon the court, more so, in the absence of a substantiated attack on the validity of the same." In the instant case, we do not find any valid reason to hold that the COMELEC's findings of fact are patently erroneous. Socrates also claims that the PRA members had no authority to adopt the Recall Resolution on July 2, 2002 because a majority of PRA members were seeking a new electoral mandate in the barangay elections scheduled on July 15, 2002. This argument deserves scant consideration considering that when the PRA members adopted the Recall Resolution their terms of office had not yet expired. They were all de jure sangguniang barangay members with no legal disqualification to participate in the recall assembly under Section 70 of the Local Government Code.

Socrates bewails that the manner private respondents conducted the PRA proceedings violated his constitutional right to information on matters of public concern. Socrates, however, admits receiving notice of the PRA meeting and of even sending his representative and counsel who were present during the entire PRA proceedings. Proponents of the recall election submitted to the COMELEC the Recall Resolution, minutes of the PRA proceedings, the journal of the PRA assembly, attendance sheets, notices sent to PRA members, and authenticated master list of barangay officials in Puerto Princesa. Socrates had the right to examine and copy all these public records in the official custody of the COMELEC. Socrates, however, does not claim that the COMELEC denied him this right. There is no legal basis in Socrates' claim that respondents violated his constitutional right to information on matters of public concern. Thus, we rule that the COMELEC did not commit grave abuse of discretion in upholding the validity of the Recall Resolution and in scheduling the recall election on September 24, 2002. Second Issue: Hagedorn's qualification to run for mayor in the recall election of September 24, 2002. The three-term limit rule for elective local officials is found in Section 8, Article X of the Constitution, which states: "Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected." This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as the Local Government Code, which provides: "Section 43. Term of Office. (a) x x x (b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official was elected." These constitutional and statutory provisions have two parts. The first part provides that an elective local official cannot serve for more than three consecutive terms. The clear intent is that only consecutive terms count in determining the three-term limit rule. The second part states that voluntary renunciation of office for any length of time does not interrupt the continuity of service. The clear intent is that involuntary severance from office for any length of time interrupts continuity of service and prevents the service before and after the interruption from being joined together to form a continuous service or consecutive terms. After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall election is no longer an immediate reelection after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of service. When the framers of the Constitution debated on the term limit of elective local officials, the question asked was whether there would be no further election after three terms, or whether there would be "no immediate reelection" after three terms. This is clear from the following deliberations of the Constitutional Commission: "THE PRESIDENT: The Acting Floor Leader is recognized. MR. ROMULO:6 We are now ready to discuss the two issues, as indicated on the blackboard, and these are Alternative No. I where there is no further election after a total of three terms and Alternative No. 2 where there is no immediate reelection after three successive terms."7 The Journal of the Constitutional Commission reports the following manifestation on the term of elective local officials: "MANIFESTATION OF MR. ROMULO Upon resumption of session, Mr. Romulo manifested that the Body would proceed to the consideration of two issues on the term of Representatives and local officials, namely: 1) Alternative No. 1 (no further reelection after a total of three terms), and 2) Alternative No. 2 (no immediate reelection after three successive terms)."8 The framers of the Constitution used the same "no immediate reelection" question in voting for the term limits of Senators9 and Representatives of the House.10

Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth term as long as the reelection is not immediately after the end of the third consecutive term. A recall election mid-way in the term following the third consecutive term is a subsequent election but not an immediate reelection after the third term. Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other subsequent election involving the same term of office. What the Constitution prohibits is a consecutive fourth term. The debates in the Constitutional Commission evidently show that the prohibited election referred to by the framers of the Constitution is the immediate reelection after the third term, not any other subsequent election. If the prohibition on elective local officials is applied to any election within the three-year full term following the threeterm limit, then Senators should also be prohibited from running in any election within the six-year full term following their two-term limit. The constitutional provision on the term limit of Senators is worded exactly like the term limit of elective local officials, thus: "No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected."11 In the debates on the term limit of Senators, the following exchange in the Constitutional Convention is instructive: "GASCON:12 I would like to ask a question with regard to the issue after the second term. We will allow the Senator to rest for a period of time before he can run again? DAVIDE:13 That is correct. GASCON: And the question that we left behind before - if the Gentleman will remember - was: How long will that period of rest be? Will it be one election which is three years or one term which is six years? DAVIDE: If the Gentleman will remember, Commissioner Rodrigo expressed the view that during the election following the expiration of the first 12 years, whether such election will be on the third or on the sixth year thereafter, this particular member of the Senate can run. So, it is not really a period of hibernation for six years. That was the Committee's stand. GASCON: So, effectively, the period of rest would be three years at the least."14 (Emphasis supplied) The framers of the Constitution thus clarified that a Senator can run after only three years15 following his completion of two terms. The framers expressly acknowledged that the prohibited election refers only to the immediate reelection, and not to any subsequent election, during the six-year period following the two term limit. The framers of the Constitution did not intend "the period of rest" of an elective official who has reached his term limit to be the full extent of the succeeding term. In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is not an immediate reelection after his third consecutive term which ended on June 30, 2001. The immediate reelection that the Constitution barred Hagedorn from seeking referred to the regular elections in 2001. Hagedorn did not seek reelection in the 2001 elections. Hagedorn was elected for three consecutive terms in the 1992, 1995 and 1998 elections and served in full his three consecutive terms as mayor of Puerto Princesa. Under the Constitution and the Local Government Code, Hagedorn could no longer run for mayor in the 2001 elections. The Constitution and the Local Government Code disqualified Hagedorn, who had reached the maximum three-term limit, from running for a fourth consecutive term as mayor. Thus, Hagedorn did not run for mayor in the 2001 elections.16 Socrates ran and won as mayor of Puerto Princesa in the 2001 elections. After Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen until the recall election of September 24, 2002 when he won by 3,018 votes over his closest opponent, Socrates. From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa was Socrates. During the same period, Hagedorn was simply a private citizen. This period is clearly an interruption in the continuity of Hagedorn's service as mayor, not because of his voluntary renunciation, but because of a legal prohibition. Hagedorn's three consecutive terms ended on June 30, 2001. Hagedorn's new recall term from September 24, 2002 to June 30, 2004 is not a seamless continuation of his previous three consecutive terms as mayor. One cannot stitch together Hagedorn's previous three-terms with his new recall term to make the recall term a fourth consecutive term because factually it is not. An involuntary interruption occurred from June 30, 2001 to September 24, 2002 which broke the continuity or consecutive character of Hagedorn's service as mayor. In Lonzanida v. Comelec,17 the Court had occasion to explain interruption of continuity of service in this manner: "x x x The second sentence of the constitutional provision under scrutiny states, "Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected." The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit

by a voluntary renunciation of office and at the same time respect the people's choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three-term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. x x x." (Emphasis supplied) In Hagedorn's case, the nearly 15-month period he was out of office, although short of a full term of three years, constituted an interruption in the continuity of his service as mayor. The Constitution does not require the interruption or hiatus to be a full term of three years. The clear intent is that interruption "for any length of time," as long as the cause is involuntary, is sufficient to break an elective local official's continuity of service. In the recent case of Adormeo v. Comelec and Talaga,18 a unanimous Court reiterated the rule that an interruption consisting of a portion of a term of office breaks the continuity of service of an elective local official. In Adormeo, Ramon Y. Talaga, Jr. had served two consecutive full terms as mayor of Lucena City. In his third bid for election as mayor in 1998, Talaga lost to Bernard G. Tagarao. However, in the recall election of May 12, 2000, Talaga won and served the unexpired term of Tagarao from May 12, 2000 to June 30, 2001. When Talaga ran again for mayor in the 2001 elections, Raymundo Adormeo, the other candidate for mayor, petitioned for Talaga's disqualification on the ground that Talaga had already served three consecutive terms as mayor. Thus, the issue in Adormeo was whether Talaga's recall term was a continuation of his previous two terms so that he was deemed to have already served three consecutive terms as mayor. The Court ruled that Talaga was qualified to run in the 2001 elections, stating that the period from June 30, 1998 to May 12, 2000 when Talaga was out of office interrupted the continuity of his service as mayor. Talaga's recall term as mayor was not consecutive to his previous two terms because of this interruption, there having been a break of almost two years during which time Tagarao was the mayor. We held in Adormeo that the period an elective local official is out of office interrupts the continuity of his service and prevents his recall term from being stitched together as a seamless continuation of his previous two consecutive terms. In the instant case, we likewise hold that the nearly 15 months Hagedorn was out of office interrupted his continuity of service and prevents his recall term from being stitched together as a seamless continuation of his previous three consecutive terms. The only difference between Adormeo and the instant case is the time of the interruption. In Adormeo, the interruption occurred after the first two consecutive terms. In the instant case, the interruption happened after the first three consecutive terms. In both cases, the respondents were seeking election for a fourth term. In Adormeo, the recall term of Talaga began only from the date he assumed office after winning the recall election. Talaga's recall term did not retroact to include the tenure in office of his predecessor. If Talaga's recall term was made to so retroact, then he would have been disqualified to run in the 2001 elections because he would already have served three consecutive terms prior to the 2001 elections. One who wins and serves a recall term does not serve the full term of his predecessor but only the unexpired term. The period of time prior to the recall term, when another elective official holds office, constitutes an interruption in continuity of service. Clearly, Adormeo established the rule that the winner in the recall election cannot be charged or credited with the full term of three years for purposes of counting the consecutiveness of an elective official's terms in office. In the same manner, Hagedorn's recall term does not retroact to include the tenure in office of Socrates. Hagedorn can only be disqualified to run in the September 24, 2002 recall election if the recall term is made to retroact to June 30, 2001, for only then can the recall term constitute a fourth consecutive term. But to consider Hagedorn's recall term as a full term of three years, retroacting to June 30, 2001, despite the fact that he won his recall term only last September 24, 2002, is to ignore reality. This Court cannot declare as consecutive or successive terms of office which historically and factually are not. Worse, to make Hagedorn's recall term retroact to June 30, 2001 creates a legal fiction that unduly curtails the freedom of the people to choose their leaders through popular elections. The concept of term limits is in derogation of the sovereign will of the people to elect the leaders of their own choosing. Term limits must be construed strictly to give the fullest possible effect to the sovereign will of the people. As this Court aptly stated in Borja, Jr. v. Comelec: "Thus, a consideration of the historical background of Art. X, 8 of the Constitution reveals that the members of the Constitutional Commission were as much concerned with preserving the freedom of choice of the people as they were with preventing the monopolization of political power. Indeed, they rejected a proposal put forth by Commissioner Edmundo F. Garcia that after serving three consecutive terms or nine years there should be no further reelection for local and legislative officials. Instead, they adopted the alternative proposal of Commissioner Christian Monsod that such officials be simply barred from running for the same position in the succeeding election following the expiration of the third consecutive term. Monsod warned against 'prescreening candidates [from] whom the people will choose' as a result of the proposed absolute disqualification, considering that the draft constitution contained provisions 'recognizing people's power.'"19 (Emphasis supplied) A necessary consequence of the interruption of continuity of service is the start of a new term following the interruption. An official elected in recall election serves the unexpired term of the recalled official. This unexpired term is in itself one term for purposes of counting the three-term limit. This is clear from the following discussion in the Constitutional Commission:

"SUAREZ:20 For example, a special election is called for a Senator, and the Senator newly elected would have to serve the unexpired portion of the term. Would that mean that serving the unexpired portion of the term is already considered one term? So, half a term, which is actually the correct statement, plus one term would disqualify the Senator concerned from running? Is that the meaning of this provision on disqualification, Madam President? DAVIDE: Yes, because we speak of 'term,' and if there is a special election, he will serve only for the unexpired portion of that particular term plus one more term for the Senator and two more terms for the Members of the Lower House."21 Although the discussion referred to special elections for Senators and Representatives of the House, the same principle applies to a recall election of local officials. Otherwise, an elective local official who serves a recall term can serve for more than nine consecutive years comprising of the recall term plus the regular three full terms. A local official who serves a recall term should know that the recall term is in itself one term although less than three years. This is the inherent limitation he takes by running and winning in the recall election. In summary, we hold that Hagedorn is qualified to run in the September 24, 2002 recall election for mayor of Puerto Princesa because: 1. Hagedorn is not running for immediate reelection following his three consecutive terms as mayor which ended on June 30, 2001; 2. Hagedorn's continuity of service as mayor was involuntarily interrupted from June 30, 2001 to September 24, 2002 during which time he was a private citizen; 3. Hagedorn's recall term from September 24, 2002 to June 30, 2004 cannot be made to retroact to June 30, 2001 to make a fourth consecutive term because factually the recall term is not a fourth consecutive term; and 4. Term limits should be construed strictly to give the fullest possible effect to the right of the electorate to choose their leaders. WHEREFORE, the petitions in G.R. Nos. 154512, 154683 and 155083-84 are DISMISSED. The temporary restraining order issued by this Court on September 24, 2002 enjoining the proclamation of the winning candidate for mayor of Puerto Princesa in the recall election of September 24, 2002 is lifted. No costs. SO ORDERED.

G.R. No. 154829

December 10, 2003

ARSENIO A. LATASA, petitioner, vs. COMMISSION ON ELECTIONS, and ROMEO SUNGA, respondents DECISION AZCUNA, J.: This is a petition for certiorari under Rule 65 of the Rules of Court which seeks to challenge the resolution issued by the First Division of the Commission on Elections (COMELEC) dated April 27, 2001 in SPA Case No. 01-059 entitled, Romeo M. Sunga, petitioner, versus Arsenio A. Latasa, respondent, and the Resolution of the COMELECen banc denying herein petitioners Motion for Reconsideration. The assailed Resolution denied due course to the certificate of candidacy of petitioner Arsenio A. Latasa, declaring him disqualified to run for mayor of Digos City, Davao del Sur Province in the May 14, 2001 elections, ordering that all votes cast in his favor shall not be counted, and if he has been proclaimed winner, declaring said proclamation null and void. The facts are fairly simple. Petitioner Arsenio A. Latasa, was elected mayor of the Municipality of Digos, Davao del Sur in the elections of 1992, 1995, and 1998. During petitioners third term, the Municipality of Digos was declared a component city, to be known as the City of Digos. A plebiscite conducted on September 8, 2000 ratified Republic Act No. 8798 entitled, "An Act Converting the Municipality of Digos, Davao del Sur Province into a Component City to be known as the City of Digos" or the Charter of the City of Digos. This event also marked the end of petitioners tenure as mayor of the Municipality of Digos. However, under Section 53, Article IX of the Charter, petitioner was mandated to serve in a hold-over capacity as mayor of the new City of Digos. Hence, he took his oath as the city mayor. On February 28, 2001, petitioner filed his certificate of candidacy for city mayor for the May 14, 2001 elections. He stated therein that he is eligible therefor, and likewise disclosed that he had already served for three consecutive terms as mayor of the Municipality of Digos and is now running for the first time for the position of city mayor. On March 1, 2001, private respondent Romeo M. Sunga, also a candidate for city mayor in the said elections, filed before the COMELEC a Petition to Deny Due Course, Cancel Certificate of Candidacy and/ or For Disqualification1 against petitioner Latasa. Respondent Sunga alleged therein that petitioner falsely represented in his certificate of candidacy that he is eligible to run as mayor of Digos City since petitioner had already been elected and served for three consecutive terms as mayor from 1992 to 2001. On March 5, 2001, petitioner Latasa filed his Answer,2 arguing that he did not make any false representation in his certificate of candidacy since he fully disclosed therein that he had served as mayor of the Municipality of Digos for three consecutive terms. Moreover, he argued that this fact does not bar him from filing a certificate of candidacy for the May 14, 2001 elections since this will be the first time that he will be running for the post of city mayor. Both parties submitted their position papers on March 19, 2001.3 On April 27, 2001, respondent COMELECs First Division issued a Resolution, the dispositive portion of which reads, as follows: Wherefore, premises considered, the respondents certificate of candidacy should be cancelled for being a violation of the three (3)-term rule proscribed by the 1987 Constitution and the Local Government Code of 1991.4 Petitioner filed his Motion for Reconsideration dated May 4, 2001,5 which remained unacted upon until the day of the elections, May 14, 2001. On May 16, 2001, private respondent Sunga filed an Ex Parte Motion for Issuance of Temporary Restraining Order Enjoining the City Board of Canvassers From Canvassing or Tabulating Respondents Votes, and From Proclaiming Him as the Duly Elected Mayor if He Wins the Elections.6 Despite this, however, petitioner Latasa was still proclaimed winner on May 17, 2001, having garnered the most number of votes. Consequently, private respondent Sunga filed, on May 27, 2001, a Supplemental Motion7 which essentially sought the annulment of petitioners proclamation and the suspension of its effects. On July 1, 2001, petitioner was sworn into and assumed his office as the newly elected mayor of Digos City. It was only on August 27, 2002 that the COMELEC en banc issued a Resolution denying petitioners Motion for Reconsideration. Hence, this petition. It cannot be denied that the Court has previously held in Mamba-Perez v. COMELEC8 that after an elective official has been proclaimed as winner of the elections, the COMELEC has no jurisdiction to pass upon his qualifications. An opposing partys remedies after proclamation would be to file a petition for quo warranto within ten days after the proclamation.

On the other hand, certain peculiarities in the present case reveal the fact that its very heart is something which this Court considers of paramount interest. This Court notes from the very beginning that petitioner himself was already entertaining some doubt as to whether or not he is indeed eligible to run for city mayor in the May 14, 2001 elections. In his certificate of candidacy, after the phrase "I am eligible", petitioner inserted a footnote and indicated:
*

Having served three (3) term[s] as municipal mayor and now running for the first time as city mayor.9

Time and again, this Court has held that rules of procedure are only tools designed to facilitate the attainment of justice, such that when rigid application of the rules tend to frustrate rather than promote substantial justice, this Court is empowered to suspend their operation. We will not hesitate to set aside technicalities in favor of what is fair and just.10 The spirit embodied in a Constitutional provision must not be attenuated by a rigid application of procedural rules. The present case raises a novel issue with respect to an explicit Constitutional mandate: whether or not petitioner Latasa is eligible to run as candidate for the position of mayor of the newly-created City of Digos immediately after he served for three consecutive terms as mayor of the Municipality of Digos. As a rule, in a representative democracy, the people should be allowed freely to choose those who will govern them. Article X, Section 8 of the Constitution is an exception to this rule, in that it limits the range of choice of the people. Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. An examination of the historical background of the subject Constitutional provision reveals that the members of the Constitutional Commission were as much concerned with preserving the freedom of choice of the people as they were with preventing the monopolization of political power. In fact, they rejected a proposal set forth by Commissioner Edmundo Garcia that after serving three consecutive terms or nine years, there should be no further re-election for local and legislative officials.11 The members, instead, adopted the alternative proposal of Commissioner Christian Monsod that such officials be simply barred from running for the same position in the succeeding election following the expiration of the third consecutive term: MR. MONSOD: Madam President, I was reflecting on this issue earlier and I asked to speak because in this draft Constitution, we are recognizing peoples power. We have said that now there is a new awareness, a new kind of voter, a new kind of Filipino. And yet at the same time, we are prescreening candidates among whom they will choose. We are saying that this 48-member Constitutional Commission has decreed that those who have served for a period of nine years are barred from running for the same position. The argument is that there may be other positions. But there are some people who are very skilled and good at legislation, and yet are not of a national stature to be Senators. They may be perfectly honest, perfectly competent and with integrity. They get voted into office at the age of 25, which is the age we provide for Congressmen. And at 34 years old we put them into pasture. Second, we say that we want to broaden the choices of the people. We are talking here only of congressional or senatorial seats. We want to broaden the peoples choice but we are making prejudgment today because we exclude a certain number of people. We are, in effect, putting an additional qualification for office that the officials must have not have served a total of more than a number of years in their lifetime. Third, we are saying that by putting people to pasture, we are creating a reserve of statesmen, but the future participation of these statesmen is limited. Their skills may be only in some areas, but we are saying that they are going to be barred from running for the same position. Madam President, the ability and capacity of a statesman depend as well on the day-to-day honing of his skills and competence, in intellectual combat, in concern and contact with the people, and here we are saying that he is going to be barred from the same kind of public service. I do not think it is in our place today to make such a very important and momentous decision with respect to many of our countrymen in the future who may have a lot more years ahead of them in the service of their country. If we agree that we will make sure that these people do not set up structures that will perpetuate them, then let us give them this rest period of three years or whatever it is. Maybe during that time, we would even agree that their fathers or mothers or relatives of the second degree should not run. But let us not bar them for life after serving the public for number of years.12 The framers of the Constitution, by including this exception, wanted to establish some safeguards against the excessive accumulation of power as a result of consecutive terms. As Commissioner Blas Ople stated during the deliberations:

x x x I think we want to prevent future situations where, as a result of continuous service and frequent re-elections, officials from the President down to the municipal mayor tend to develop a proprietary interest in their positions and to accumulate these powers and perquisites that permit them to stay on indefinitely or to transfer these posts to members of their families in a subsequent election. x x x 13 An elective local official, therefore, is not barred from running again in for same local government post, unless two conditions concur: 1.) that the official concerned has been elected for three consecutive terms to the same local government post, and 2.) that he has fully served three consecutive terms.14 In the present case, petitioner states that a city and a municipality have separate and distinct personalities. Thus they cannot be treated as a single entity and must be accorded different treatment consistent with specific provisions of the Local Government Code. He does not deny the fact that he has already served for three consecutive terms as municipal mayor. However, he asserts that when Digos was converted from a municipality to a city, it attained a different juridical personality. Therefore, when he filed his certificate of candidacy for city mayor, he cannot be construed as vying for the same local government post. For a municipality to be converted into a city, the Local Government Code provides: SECTION 450. Requisites for Creation. - (a) A municipality or a cluster of barangays may be converted into a component city it has an average annual income, as certified by the Department of Finance, of at least Twenty million pesos (20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices, and if it has either of the following requisites: (i) a contiguous territory of at least one hundred (100) square kilometers, as certified by the Land Management Bureau; or, (ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the National Statistics Office. Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. (b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The requirement on land are shall not apply where the city proposed to be created is composed of one (1) or more island. The territory need not be contiguous if it comprises two (2) or more islands. (c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and non-recurring income.15 Substantial differences do exist between a municipality and a city. For one, there is a material change in the political and economic rights of the local government unit when it is converted from a municipality to a city and undoubtedly, these changes affect the people as well.16 It is precisely for this reason why Section 10, Article X of the Constitution mandates that no province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, without the approval by a majority of the votes cast in a plebiscite in the political units directly affected. As may be gleaned from the Local Government Code, the creation or conversion of a local government unit is done mainly to help assure its economic viability. Such creation or conversion is based on verified indicators: Section 7. Creation and Conversion. --- As a general rule, the creation of a local government unit or its conversion from one level to another shall be based on verifiable indicators or viability and projected capacity to provide services, to wit: (a) Income. --- It must be sufficient, based on acceptable standards, to provide for all essential government facilities and services and special functions commensurate with the size of its population, as expected of the local government unit concerned; (b) Population. --- It shall be determined as the total number of inhabitants within the territorial jurisdiction of the local government unit concerned; and (c) Land Area. --- It must be contiguous, unless it comprises two (2) or more islands or is separated by a local government unit independent of the others; properly identified by metes and bounds with technical descriptions; and sufficient to provide for such basic services and facilities to meet the requirements of its populace. Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF), the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of Environment and Natural Resources (DENR).17

On the other hand, Section 2 of the Charter of the City of Digos provides: Section 2. The City of Digos --- The Municipality of Digos shall be converted into a component city to be known as the City of Digos, hereinafter referred to as the City, which shall comprise the present territory of the Municipality of Digos, Davao del Sur Province. The territorial jurisdiction of the City shall be within the present metes and bounds of the Municipality of Digos. x x x Moreover, Section 53 of the said Charter further states: Section 53. Officials of the City of Digos. --- The present elective officials of the Municipality of Digos shall continue to exercise their powers and functions until such a time that a new election is held and the duly-elected officials shall have already qualified and assumed their offices. x x x. As seen in the aforementioned provisions, this Court notes that the delineation of the metes and bounds of the City of Digos did not change even by an inch the land area previously covered by the Municipality of Digos. This Court also notes that the elective officials of the Municipality of Digos continued to exercise their powers and functions until elections were held for the new city officials. True, the new city acquired a new corporate existence separate and distinct from that of the municipality. This does not mean, however, that for the purpose of applying the subject Constitutional provision, the office of the municipal mayor would now be construed as a different local government post as that of the office of the city mayor. As stated earlier, the territorial jurisdiction of the City of Digos is the same as that of the municipality. Consequently, the inhabitants of the municipality are the same as those in the city. These inhabitants are the same group of voters who elected petitioner Latasa to be their municipal mayor for three consecutive terms. These are also the same inhabitants over whom he held power and authority as their chief executive for nine years. This Court must distinguish the present case from previous cases ruled upon this Court involving the same Constitutional provision. In Borja, Jr. v. COMELEC,18 the issue therein was whether a vice-mayor who became the mayor by operation of law and who served the remainder of the mayors term should be considered to have served a term in that office for the purpose of the three-term limit under the Constitution. Private respondent in that case was first elected as vicemayor, but upon the death of the incumbent mayor, he occupied the latters post for the unexpired term. He was, thereafter, elected for two more terms. This Court therein held that when private respondent occupied the post of the mayor upon the incumbents death and served for the remainder of the term, he cannot be construed as having served a full term as contemplated under the subject constitutional provision. The term served must be one "for which [the official concerned] was elected." It must also be noted that in Borja, the private respondent therein, before he assumed the position of mayor, first served as the vice-mayor of his local government unit. The nature of the responsibilities and duties of the vicemayor is wholly different from that of the mayor. The vice-mayor does not hold office as chief executive over his local government unit. In the present case, petitioner, upon ratification of the law converting the municipality to a city, continued to hold office as chief executive of the same territorial jurisdiction. There were changes in the political and economic rights of Digos as local government unit, but no substantial change occurred as to petitioners authority as chief executive over the inhabitants of Digos. In Lonzanida v. COMELEC,19 petitioner was elected and served two consecutive terms as mayor from 1988 to 1995. He then ran again for the same position in the May 1995 elections, won and discharged his duties as mayor. However, his opponent contested his proclamation and filed an election protest before the Regional Trial Court, which ruled that there was a failure of elections and declared the position of mayor vacant. The COMELEC affirmed this ruling and petitioner acceded to the order to vacate the post. During the May 1998 elections, petitioner therein again filed his certificate of candidacy for mayor. A petition to disqualify him was filed on the ground that he had already served three consecutive terms. This Court ruled, however, that petitioner therein cannot be considered as having been duly elected to the post in the May 1995 elections, and that said petitioner did not fully serve the 19951998 mayoral term by reason of involuntary relinquishment of office. In the present case, petitioner Latasa was, without a doubt, duly elected as mayor in the May 1998 elections. Can he then be construed as having involuntarily relinquished his office by reason of the conversion of Digos from municipality to city? This Court believes that he did involuntarily relinquish his office as municipal mayor since the said office has been deemed abolished due to the conversion. However, the very instant he vacated his office as municipal mayor, he also assumed office as city mayor. Unlike in Lonzanida, where petitioner therein, for even just a short period of time, stepped down from office, petitioner Latasa never ceased from acting as chief executive of the local government unit. He never ceased from discharging his duties and responsibilities as chief executive of Digos. In Adormeo v. COMELEC,20 this Court was confronted with the issue of whether or not an assumption to office through a recall election should be considered as one term in applying the three-term limit rule. Private respondent, in that case, was elected and served for two consecutive terms as mayor. He then ran for his third term in the May 1998 elections, but lost to his opponent. In June 1998, his opponent faced recall proceedings and in the recall elections of May 2000, private respondent won and served for the unexpired term. For the May 2001 elections,

private respondent filed his certificate of candidacy for the office of mayor. This was questioned on the ground that he had already served as mayor for three consecutive terms. This Court held therein that private respondent cannot be construed as having been elected and served for three consecutive terms. His loss in the May 1998 elections was considered by this Court as an interruption in the continuity of his service as mayor. For nearly two years, private respondent therein lived as a private citizen. The same, however, cannot be said of petitioner Latasa in the present case. Finally, in Socrates v. COMELEC,21 the principal issue was whether or not private respondent Edward M. Hagedorn was qualified to run during the recall elections. Therein respondent Hagedorn had already served for three consecutive terms as mayor from 1992 until 2001 and did not run in the immediately following regular elections. On July 2, 2002, the barangay officials of Puerto Princesa convened themselves into a Preparatory Recall Assembly to initiate the recall of the incumbent mayor, Victorino Dennis M. Socrates. On August 23, 2002, respondent Hagedorn filed his certificate of candidacy for mayor in the recall election. A petition for his disqualification was filed on the ground that he cannot run for the said post during the recall elections for he was disqualified from running for a fourth consecutive term. This Court, however, ruled in favor of respondent Hagedorn, holding that the principle behind the three-term limit rule is to prevent consecutiveness of the service of terms, and that there was in his case a break in such consecutiveness after the end of his third term and before the recall election. It is evident that in the abovementioned cases, there exists a rest period or a break in the service of the local elective official. In Lonzanida, petitioner therein was a private citizen a few months before the next mayoral elections. Similarly, in Adormeo and Socrates, the private respondents therein lived as private citizens for two years and fifteen months respectively. Indeed, the law contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit.
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This Court reiterates that the framers of the Constitution specifically included an exception to the peoples freedom to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city mayor after having served for three consecutive terms as a municipal mayor would obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another three consecutive terms as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the Constitution, if not abhorred by it. Finally, respondent Sunga claims that applying the principle in Labo v. COMELEC,22 he should be deemed the mayoralty candidate with the highest number of votes. On the contrary, this Court held in Labo that the disqualification of a winning candidate does not necessarily entitle the candidate with the highest number of votes to proclamation as the winner of the elections. As an obiter, the Court merely mentioned that the rule would have been different if the electorate, fully aware in fact and in law of a candidates disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In such case, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected. The same, however, cannot be said of the present case. This Court has consistently ruled that the fact that a plurality or a majority of the votes are cast for an ineligible candidate at a popular election, or that a candidate is later declared to be disqualified to hold office, does not entitle the candidate who garnered the second highest number of votes to be declared elected. The same merely results in making the winning candidates election a nullity.23 In the present case, moreover, 13,650 votes were cast for private respondent Sunga as against the 25,335 votes cast for petitioner Latasa.24 The second placer is obviously not the choice of the people in that particular election. In any event, a permanent vacancy in the contested office is thereby created which should be filled by succession.25 WHEREFORE, the petition is DISMISSED. No pronouncement as to costs. SO ORDERED.

G.R. No. 184836

December 23, 2009

SIMON B. ALDOVINO, JR., DANILO B. FALLER AND FERDINAND N. TALABONG, Petitioners, vs. COMMISSION ON ELECTIONS AND WILFREDO F. ASILO, Respondents. DECISION BRION, J.: Is the preventive suspension of an elected public official an interruption of his term of office for purposes of the three-term limit rule under Section 8, Article X of the Constitution and Section 43(b) of Republic Act No. 7160 (RA 7160, or the Local Government Code)? The respondent Commission on Elections (COMELEC) ruled that preventive suspension is an effective interruption because it renders the suspended public official unable to provide complete service for the full term; thus, such term should not be counted for the purpose of the three-term limit rule. The present petition1 seeks to annul and set aside this COMELEC ruling for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. THE ANTECEDENTS The respondent Wilfredo F. Asilo (Asilo) was elected councilor of Lucena City for three consecutive terms: for the 1998-2001, 2001-2004, and 2004-2007 terms, respectively. In September 2005 or during his 2004-2007 term of office, the Sandiganbayan preventively suspended him for 90 days in relation with a criminal case he then faced.This Court, however, subsequently lifted the Sandiganbayans suspension order; hence, he resumed performing the functions of his office and finished his term. In the 2007 election, Asilo filed his certificate of candidacy for the same position. The petitioners Simon B. Aldovino, Jr., Danilo B. Faller, and Ferdinand N. Talabong (the petitioners) sought to deny due course to Asilos certificate of candidacy or to cancel it on the ground that he had been elected and had served for three terms; his candidacy for a fourth term therefore violated the three-term limit rule under Section 8, Article X of the Constitution and Section 43(b) of RA 7160. The COMELECs Second Division ruled against the petitioners and in Asilos favour in its Resolution of November 28, 2007. It reasoned out that the three-term limit rule did not apply, as Asilo failed to render complete service for the 2004-2007 term because of the suspension the Sandiganbayan had ordered. The COMELEC en banc refused to reconsider the Second Divisions ruling in its October 7, 2008 Resolution; hence, the PRESENT PETITION raising the following ISSUES: 1. Whether preventive suspension of an elected local official is an interruption of the three-term limit rule; and 2. Whether preventive suspension is considered involuntary renunciation as contemplated in Section 43(b) of RA 7160 Thus presented, the case raises the direct issue of whether Asilos preventive suspension constituted an interruption that allowed him to run for a 4th term. THE COURTS RULING We find the petition meritorious. General Considerations The present case is not the first before this Court on the three-term limit provision of the Constitution, but is the first on the effect of preventive suspension on the continuity of an elective officials term. To be sure, preventive suspension, as an interruption in the term of an elective public official, has been mentioned as an example in Borja v. Commission on Elections.2 Doctrinally, however, Borja is not a controlling ruling; it did not deal with preventive suspension, but with the application of the three-term rule on the term that an elective official acquired by succession. a. The Three-term Limit Rule: The Constitutional Provision Analyzed

Section 8, Article X of the Constitution states: Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Section 43 (b) of RA 7160 practically repeats the constitutional provision, and any difference in wording does not assume any significance in this case. As worded, the constitutional provision fixes the term of a local elective office and limits an elective officials stay in office to no more than three consecutive terms. This is the first branch of the rule embodied in Section 8, Article X. Significantly, this provision refers to a "term" as a period of time three years during which an official has title to office and can serve. Appari v. Court of Appeals,3 a Resolution promulgated on November 28, 2007, succinctly discusses what a "term" connotes, as follows: The word "term" in a legal sense means a fixed and definite period of time which the law describes that an officer may hold an office. According to Mechem, the term of office is the period during which an office may be held. Upon expiration of the officers term, unless he is authorized by law to holdover, his rights, duties and authority as a public officer must ipso facto cease. In the law of public officers, the most and natural frequent method by which a public officer ceases to be such is by the expiration of the terms for which he was elected or appointed. [Emphasis supplied].
1avv phi 1

A later case, Gaminde v. Commission on Audit,4 reiterated that "[T]he term means the time during which the officer may claim to hold office as of right, and fixes the interval after which the several incumbents shall succeed one another." The "limitation" under this first branch of the provision is expressed in the negative "no such official shall serve for more than three consecutive terms." This formulation no more than three consecutive terms is a clear command suggesting the existence of an inflexible rule. While it gives no exact indication of what to "serve. . . three consecutive terms" exactly connotes, the meaning is clear reference is to the term, not to the service that a public official may render. In other words, the limitation refers to the term.
1awphi1

The second branch relates to the provisions express initiative to prevent any circumvention of the limitation through voluntary severance of ties with the public office; it expressly states that voluntary renunciation of office "shall not be considered as an interruption in the continuity of his service for the full term for which he was elected." This declaration complements the term limitation mandated by the first branch. A notable feature of the second branch is that it does not textually state that voluntary renunciation is the only actual interruption of service that does not affect "continuity of service for a full term" for purposes of the three-term limit rule. It is a pure declaratory statement of what does not serve as an interruption of service for a full term, but the phrase "voluntary renunciation," by itself, is not without significance in determining constitutional intent. The word "renunciation" carries the dictionary meaning of abandonment. To renounce is to give up, abandon, decline, or resign.5 It is an act that emanates from its author, as contrasted to an act that operates from the outside. Read with the definition of a "term" in mind, renunciation, as mentioned under the second branch of the constitutional provision, cannot but mean an act that results in cutting short the term, i.e., the loss of title to office. The descriptive word "voluntary" linked together with "renunciation" signifies an act of surrender based on the surenderees own freely exercised will; in other words, a loss of title to office by conscious choice. In the context of the three-term limit rule, such loss of title is not considered an interruption because it is presumed to be purposely sought to avoid the application of the term limitation. The following exchanges in the deliberations of the Constitutional Commission on the term "voluntary renunciation" shed further light on the extent of the term "voluntary renunciation": MR. MAAMBONG. Could I address the clarificatory question to the Committee? This term "voluntary renunciation" does not appear in Section 3 [of Article VI]; it also appears in Section 6 [of Article VI]. MR DAVIDE. Yes. MR. MAAMBONG. It is also a recurring phrase all over the Constitution. Could the Committee please enlighten us exactly what "voluntary renunciation" mean? Is this akin to abandonment? MR. DAVIDE. Abandonment is voluntary. In other words, he cannot circumvent the restriction by merely resigning at any given time on the second term. MR. MAAMBONG. Is the Committee saying that the term "voluntary renunciation" is more general than abandonment and resignation?

MR. DAVIDE. It is more general, more embracing.6 From this exchange and Commissioner Davides expansive interpretation of the term "voluntary renunciation," the framers intent apparently was to close all gaps that an elective official may seize to defeat the three-term limit rule, in the way that voluntary renunciation has been rendered unavailable as a mode of defeating the three-term limit rule. Harking back to the text of the constitutional provision, we note further that Commissioner Davides view is consistent with the negative formulation of the first branch of the provision and the inflexible interpretation that it suggests. This examination of the wording of the constitutional provision and of the circumstances surrounding its formulation impresses upon us the clear intent to make term limitation a high priority constitutional objective whose terms must be strictly construed and which cannot be defeated by, nor sacrificed for, values of less than equal constitutional worth. We view preventive suspension vis--vis term limitation with this firm mindset. b. Relevant Jurisprudence on the Three-term Limit Rule Other than the above-cited materials, jurisprudence best gives us a lead into the concepts within the provisions contemplation, particularly on the "interruption in the continuity of service for the full term" that it speaks of. Lonzanida v. Commission on Elections7 presented the question of whether the disqualification on the basis of the three-term limit applies if the election of the public official (to be strictly accurate, the proclamation as winner of the public official) for his supposedly third term had been declared invalid in a final and executory judgment. We ruled that the two requisites for the application of the disqualification (viz., 1. that the official concerned has been elected for three consecutive terms in the same local government post; and 2. that he has fully served three consecutive terms) were not present. In so ruling, we said: The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the peoples choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral term. [Emphasis supplied] Our intended meaning under this ruling is clear: it is severance from office, or to be exact, loss of title, that renders the three-term limit rule inapplicable. Ong v. Alegre8 and Rivera v. COMELEC,9 like Lonzanida, also involved the issue of whether there had been a completed term for purposes of the three-term limit disqualification. These cases, however, presented an interesting twist, as their final judgments in the electoral contest came after the term of the contested office had expired so that the elective officials in these cases were never effectively unseated. Despite the ruling that Ong was never entitled to the office (and thus was never validly elected), the Court concluded that there was nevertheless an election and service for a full term in contemplation of the three-term rule based on the following premises: (1) the final decision that the third-termer lost the election was without practical and legal use and value, having been promulgated after the term of the contested office had expired; and (2) the official assumed and continuously exercised the functions of the office from the start to the end of the term. The Court noted in Ong the absurdity and the deleterious effect of a contrary view that the official (referring to the winner in the election protest) would, under the three-term rule, be considered to have served a term by virtue of a veritably meaningless electoral protest ruling, when another actually served the term pursuant to a proclamation made in due course after an election. This factual variation led the Court to rule differently fromLonzanida. In the same vein, the Court in Rivera rejected the theory that the official who finally lost the election contest was merely a "caretaker of the office" or a mere "de facto officer." The Court obeserved that Section 8, Article X of the Constitution is violated and its purpose defeated when an official fully served in the same position for three consecutive terms. Whether as "caretaker" or "de facto" officer, he exercised the powers and enjoyed the perquisites of the office that enabled him "to stay on indefinitely." Ong and Rivera are important rulings for purposes of the three-term limitation because of what they directly imply. Although the election requisite was not actually present, the Court still gave full effect to the three-term limitation because of the constitutional intent to strictly limit elective officials to service for three terms. By so ruling, the Court signalled how zealously it guards the three-term limit rule. Effectively, these cases teach us to strictly interpret the term limitation rule in favor of limitation rather than its exception. Adormeo v. Commission on Elections10 dealt with the effect of recall on the three-term limit disqualification. The case presented the question of whether the disqualification applies if the official lost in the regular election for the

supposed third term, but was elected in a recall election covering that term. The Court upheld the COMELECs ruling that the official was not elected for three (3) consecutive terms. The Court reasoned out that for nearly two years, the official was a private citizen; hence, the continuity of his mayorship was disrupted by his defeat in the election for the third term. Socrates v. Commission on Elections11 also tackled recall vis--vis the three-term limit disqualification. Edward Hagedorn served three full terms as mayor. As he was disqualified to run for a fourth term, he did not participate in the election that immediately followed his third term. In this election, the petitioner Victorino Dennis M. Socrates was elected mayor. Less than 1 years after Mayor Socrates assumed the functions of the office, recall proceedings were initiated against him, leading to the call for a recall election. Hagedorn filed his certificate of candidacy for mayor in the recall election, but Socrates sought his disqualification on the ground that he (Hagedorn) had fully served three terms prior to the recall election and was therefore disqualified to run because of the three-term limit rule. We decided in Hagedorns favor, ruling that: After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall election is no longer an immediate reelection after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of service. When the framers of the Constitution debated on the term limit of elective local officials, the question asked was whether there would be no further election after three terms, or whether there would be "no immediate reelection" after three terms. xxxx Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth term as long as the reelection is not immediately after the end of the third consecutive term. A recall election mid-way in the term following the third consecutive term is a subsequent election but not an immediate reelection after the third term. Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other subsequent election involving the same term of office. What the Constitution prohibits is a consecutive fourth term.12 Latasa v. Commission on Elections13 presented the novel question of whether a municipal mayor who had fully served for three consecutive terms could run as city mayor in light of the intervening conversion of the municipality into a city. During the third term, the municipality was converted into a city; the cityhood charter provided that the elective officials of the municipality shall, in a holdover capacity, continue to exercise their powers and functions until elections were held for the new city officials. The Court ruled that the conversion of the municipality into a city did not convert the office of the municipal mayor into a local government post different from the office of the city mayor the territorial jurisdiction of the city was the same as that of the municipality; the inhabitants were the same group of voters who elected the municipal mayor for 3 consecutive terms; and they were the same inhabitants over whom the municipal mayor held power and authority as their chief executive for nine years. The Court said: This Court reiterates that the framers of the Constitution specifically included an exception to the peoples freedom to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city mayor after having served for three consecutive terms as a municipal mayor would obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another three consecutive terms as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the Constitution, if not abhorred by it.14 Latasa instructively highlights, after a review of Lonzanida, Adormeo and Socrates, that no three-term limit violation results if a rest period or break in the service between terms or tenure in a given elective post intervened. In Lonzanida, the petitioner was a private citizen with no title to any elective office for a few months before the next mayoral elections. Similarly, in Adormeo and Socrates, the private respondents lived as private citizens for two years and fifteen months, respectively. Thus, these cases establish that the law contemplates a complete break from office during which the local elective official steps down and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit. Seemingly differing from these results is the case of Montebon v. Commission on Elections,15 where the highestranking municipal councilor succeeded to the position of vice-mayor by operation of law. The question posed when he subsequently ran for councilor was whether his assumption as vice-mayor was an interruption of his term as councilor that would place him outside the operation of the three-term limit rule. We ruled that an interruption had intervened so that he could again run as councilor. This result seemingly deviates from the results in the cases heretofore discussed since the elective official continued to hold public office and did not become a private citizen during the interim. The common thread that identifies Montebon with the rest, however, is that the elective official

vacated the office of councilor and assumed the higher post of vice-mayor by operation of law. Thus, for a time he ceased to be councilor an interruption that effectively placed him outside the ambit of the three-term limit rule. c. Conclusion Based on Law and Jurisprudence From all the above, we conclude that the "interruption" of a term exempting an elective official from the three-term limit rule is one that involves no less than the involuntary loss of title to office. The elective official must have involuntarily left his office for a length of time, however short, for an effective interruption to occur. This has to be the case if the thrust of Section 8, Article X and its strict intent are to be faithfully served, i.e., to limit an elective officials continuous stay in office to no more than three consecutive terms, using "voluntary renunciation" as an example and standard of what does not constitute an interruption. Thus, based on this standard, loss of office by operation of law, being involuntary, is an effective interruption of service within a term, as we held in Montebon. On the other hand, temporary inability or disqualification to exercise the functions of an elective post, even if involuntary, should not be considered an effective interruption of a term because it does not involve the loss of title to office or at least an effective break from holding office; the office holder, while retaining title, is simply barred from exercising the functions of his office for a reason provided by law. An interruption occurs when the term is broken because the office holder lost the right to hold on to his office, and cannot be equated with the failure to render service. The latter occurs during an office holders term when he retains title to the office but cannot exercise his functions for reasons established by law. Of course, the term "failure to serve" cannot be used once the right to office is lost; without the right to hold office or to serve, then no service can be rendered so that none is really lost. To put it differently although at the risk of repetition, Section 8, Article X both by structure and substance fixes an elective officials term of office and limits his stay in office to three consecutive terms as an inflexible rule that is stressed, no less, by citing voluntary renunciation as an example of a circumvention. The provision should be read in the context of interruption of term, not in the context of interrupting the full continuity of the exercise of the powers of the elective position. The "voluntary renunciation" it speaks of refers only to the elective officials voluntary relinquishment of office and loss of title to this office. It does not speak of the temporary "cessation of the exercise of power or authority" that may occur for various reasons, with preventive suspension being only one of them. To quote Latasa v. Comelec:16 Indeed, [T]he law contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit. [Emphasis supplied]. Preventive Suspension and the Three-Term Limit Rule a. Nature of Preventive Suspension Preventive suspension whether under the Local Government Code,17 the Anti-Graft and Corrupt Practices Act,18 or the Ombudsman Act19 is an interim remedial measure to address the situation of an official who have been charged administratively or criminally, where the evidence preliminarily indicates the likelihood of or potential for eventual guilt or liability. Preventive suspension is imposed under the Local Government Code "when the evidence of guilt is strong and given the gravity of the offense, there is a possibility that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence." Under the Anti-Graft and Corrupt Practices Act, it is imposed after a valid information (that requires a finding of probable cause) has been filed in court, while under the Ombudsman Act, it is imposed when, in the judgment of the Ombudsman, the evidence of guilt is strong; and (a) the charge involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; or (b) the charges would warrant removal from the service; or (c) the respondents continued stay in office may prejudice the case filed against him. Notably in all cases of preventive suspension, the suspended official is barred from performing the functions of his office and does not receive salary in the meanwhile, but does not vacate and lose title to his office; loss of office is a consequence that only results upon an eventual finding of guilt or liability. Preventive suspension is a remedial measure that operates under closely-controlled conditions and gives a premium to the protection of the service rather than to the interests of the individual office holder. Even then, protection of the service goes only as far as a temporary prohibition on the exercise of the functions of the officials office; the official is reinstated to the exercise of his position as soon as the preventive suspension is lifted. Thus, while a temporary incapacity in the exercise of power results, no position is vacated when a public official is preventively suspended. This was what exactly happened to Asilo. That the imposition of preventive suspension can be abused is a reality that is true in the exercise of all powers and prerogative under the Constitution and the laws. The imposition of preventive suspension, however, is not an unlimited power; there are limitations built into the laws20 themselves that the courts can enforce when these

limitations are transgressed, particularly when grave abuse of discretion is present. In light of this well-defined parameters in the imposition of preventive suspension, we should not view preventive suspension from the extreme situation that it can totally deprive an elective office holder of the prerogative to serve and is thus an effective interruption of an election officials term. Term limitation and preventive suspension are two vastly different aspects of an elective officials service in office and they do not overlap. As already mentioned above, preventive suspension involves protection of the service and of the people being served, and prevents the office holder from temporarily exercising the power of his office. Term limitation, on the other hand, is triggered after an elective official has served his three terms in office without any break. Its companion concept interruption of a term on the other hand, requires loss of title to office. If preventive suspension and term limitation or interruption have any commonality at all, this common point may be with respect to the discontinuity of service that may occur in both. But even on this point, they merely run parallel to each other and never intersect; preventive suspension, by its nature, is a temporary incapacity to render serviceduring an unbroken term; in the context of term limitation, interruption of service occurs after there has been abreak in the term. b. Preventive Suspension and the Intent of the Three-Term Limit Rule Strict adherence to the intent of the three-term limit rule demands that preventive suspension should not be considered an interruption that allows an elective officials stay in office beyond three terms. A preventive suspension cannot simply be a term interruption because the suspended official continues to stay in office although he is barred from exercising the functions and prerogatives of the office within the suspension period.The best indicator of the suspended officials continuity in office is the absence of a permanent replacement and the lack of the authority to appoint one since no vacancy exists. To allow a preventively suspended elective official to run for a fourth and prohibited term is to close our eyes to this reality and to allow a constitutional violation through sophistry by equating the temporary inability to discharge the functions of office with the interruption of term that the constitutional provision contemplates. To be sure, many reasons exist, voluntary or involuntary some of them personal and some of them by operation of law that may temporarily prevent an elective office holder from exercising the functions of his office in the way that preventive suspension does. A serious extended illness, inability through force majeure, or the enforcement of a suspension as a penalty, to cite some involuntary examples, may prevent an office holder from exercising the functions of his office for a time without forfeiting title to office. Preventive suspension is no different because it disrupts actual delivery of service for a time within a term. Adopting such interruption of actual service as the standard to determine effective interruption of term under the three-term rule raises at least the possibility of confusion in implementing this rule, given the many modes and occasions when actual service may be interrupted in the course of serving a term of office. The standard may reduce the enforcement of the three-term limit rule to a case-to-case and possibly seesawing determination of what an effective interruption is. c. Preventive Suspension and Voluntary Renunciation Preventive suspension, because it is imposed by operation of law, does not involve a voluntary act on the part of the suspended official, except in the indirect sense that he may have voluntarily committed the act that became the basis of the charge against him. From this perspective, preventive suspension does not have the element of voluntariness that voluntary renunciation embodies. Neither does it contain the element of renunciation or loss of title to office as it merely involves the temporary incapacity to perform the service that an elective office demands. Thus viewed, preventive suspension is by its very nature the exact opposite of voluntary renunciation; it is involuntary and temporary, and involves only the actual delivery of service, not the title to the office. The easy conclusion therefore is that they are, by nature, different and non-comparable. But beyond the obvious comparison of their respective natures is the more important consideration of how they affect the three-term limit rule. Voluntary renunciation, while involving loss of office and the total incapacity to render service, is disallowed by the Constitution as an effective interruption of a term. It is therefore not allowed as a mode of circumventing the threeterm limit rule. Preventive suspension, by its nature, does not involve an effective interruption of a term and should therefore not be a reason to avoid the three-term limitation. It can pose as a threat, however, if we shall disregard its nature and consider it an effective interruption of a term. Let it be noted that a preventive suspension is easier to undertake than voluntary renunciation, as it does not require relinquishment or loss of office even for the briefest time. It merely requires an easily fabricated administrative charge that can be dismissed soon after a preventive suspension has been imposed. In this sense, recognizing preventive suspension as an effective interruption of a term can serve as a circumvention more potent than the voluntary renunciation that the Constitution expressly disallows as an interruption. Conclusion

To recapitulate, Asilos 2004-2007 term was not interrupted by the Sandiganbayan-imposed preventive suspension in 2005, as preventive suspension does not interrupt an elective officials term. Thus, the COMELEC refused to apply the legal command of Section 8, Article X of the Constitution when it granted due course to Asilos certificate of candidacy for a prohibited fourth term. By so refusing, the COMELEC effectively committed grave abuse of discretion amounting to lack or excess of jurisdiction; its action was a refusal to perform a positive duty required by no less than the Constitution and was one undertaken outside the contemplation of law.21 WHEREFORE, premises considered, we GRANT the petition and accordingly NULLIFY the assailed COMELEC rulings. The private respondent Wilfredo F. Asilo is declared DISQUALIFIED to run, and perforce to serve, as Councilor of Lucena City for a prohibited fourth term. Costs against private respondent Asilo. SO ORDERED.

G.R. No. 135150 July 28, 1999 ROMEO LONZANIDA, petitioner, vs. THE HONORABLE COMMISSION ON ELECTION and EUFEMIO MULI, respondents.

GONZAGA-REYES, J.: This petition for certiorari under Rule 65 of the Rules of Court seeks to set aside the resolutions issued by the COMELEC First Division dated May 21, 1998 and by the COMELEC En Banc dated August 11, 1998 in SPA 98-190 entitled, In the matter of the Petition to Disqualify Mayoralty Candidate Romeo Lonzanida of San Antonio, Zambales, Eufemio Muli, petitioner, vs. Romeo Lonzanida, respondent. The assailed resolutions declared herein petitioner Romeo Lonzanida disqualified to run for Mayor in the municipality of San Antonio, Zambales in the May 1998 elections and that all votes cast in his favor shall not be counted and if he has been proclaimed winner the said proclamation is declared null and void.
1wphi1.nt

Petitioner Romeo Lonzanida was duly elected and served two consecutive terms as municipal mayor of San Antonio, Zambales prior to the May 8, 1995 elections. In the May 1995 elections Lonzanida ran for mayor of San Antonio, Zambales and was again proclaimed winner. He assumed office and discharged the duties thereof. His proclamation in 1995 was however contested by his then opponent Juan Alvez who filed an election protest before the Regional Trial Court of Zambales, which in a decision dated January 9, 1997 declared a failure of elections. The court ruled: PREMISES CONSIDERED, this court hereby renders judgment declaring the results of the election for the office of the mayor in San Antonio, Zambales last May 8, 1995 as null and void on the ground that there was a failure of election. Accordingly, the office of the mayor of the Municipality of San Antonio, Zambales is hereby declared vacant. Both parties appealed to the COMELEC. On November 13, 1997 the COMELEC resolved the election protest filed by Alvez and after a revision and re-appreciation of the contested ballots declared Alvez the duly elected mayor of San Antonio, Zambales by plurality of votes cast in his favor totaling P1,720 votes as against 1,488 votes for Lonzanida. On February 27, 1998 the COMELEC issued a writ of execution ordering Lonzanida to vacate the post, which he obeyed, and Alvez assumed office for the remainder of the term. In the May 11, 1998 elections Lonzanida again filed his certificate of candidacy for mayor of San Antonio. On April 21, 1998 his opponent Eufemio Muli timely filed a petition to disqualify Lonzanida from running for mayor of San Antonio in the 1998 elections on the ground that he had served three consecutive terms in the same post. On May 13, 1998, petitioner Lonzanida was proclaimed winner. On May 21, 1998 the First Division of the COMELEC issued the questioned resolution granting the petition for disqualification upon a finding that Lonzanida had served three consecutive terms as mayor of San Antonio, Zambales and he is therefore disqualified to run for the same post for the fourth time. The COMELEC found that Lonzanida's assumption of office by virtue of his proclamation in May 1995, although he was later unseated before the expiration of the term, should be counted as service for one full term in computing the three term limit under the Constitution and the Local Government Code. The finding of the COMELEC First Division was affirmed by the COMELEC En Banc in a resolution dated August 11, 1998. Petitioner Lonzanida challenges the validity of the COMELEC resolutions finding him disqualified to run for mayor of San Antonio Zambales in the 1998 elections. He maintains that he was duly elected mayor for only two consecutive terms and that his assumption of office in 1995 cannot be counted as service of a term for the purpose of applying the three term limit for local government officials, because he was not the duly elected mayor of San Antonio in the May 1995 elections as evidenced by the COMELEC decision dated November 13, 1997 in EAC No. 6-97 entitled Juan Alvez, Protestant-Appellee vs. Romeo Lonzanida, Protestee-Appellant; wherein the COMELEC declared Juan Alvez as the duly elected mayor of San Antonio, Zambales. Petitioner also argues that the COMELEC ceased to have jurisdiction over the petition for disqualification after he was proclaimed winner in the 1998 mayoral elections; as the proper remedy is a petition for quo warranto with the appropriate regional trial court under Rule 36 of the COMELEC Rules of Procedure. Private respondent Eufemio Muli filed comment to the petition asking this court to sustain the questioned resolutions of the COMELEC and to uphold its jurisdiction over the petition for disqualification. The private respondent states that the petition for disqualification was filed on April 21, 1998 or before the May 1998 mayoral elections. Under section 6, RA 6646 and Rule 25 of the COMELEC Rules of Procedure petitions for disqualification filed with the COMELEC before the elections and/or proclamation of the party sought to be disqualified may still be heard and decided by the COMELEC after the election and proclamation of the said party without distinction as to the alleged ground for disqualification, whether for acts constituting an election offense or for ineligibility. Accordingly, it is argued that the resolutions of the COMELEC on the merits of the petition for disqualification were issued within the commission's jurisdiction. As regards the merits of the case, the private respondent maintains that the petitioner's

assumption of office in 1995 should be considered as service of one full term because he discharged the duties of mayor for almost three years until March 1, 1998 or barely a few months before the next mayoral elections. The Solicitor-General filed comment to the petition for the respondent COMELEC praying for the dismissal of the petition. The Solicitor-General stressed that section 8, Art. X of the Constitution and section 43 (b), Chapter 1 of the Local Government Code which bar a local government official from serving more than three consecutive terms in the same position speaks of "service of a term" and so the rule should be examined in this light. The public respondent contends that petitioner Lonzanida discharged the rights and duties of mayor from 1995 to 1998 which should be counted as service of one full term, albeit he was later unseated, because he served as mayor for the greater part of the term. The issue of whether or not Lonzanida served as a de jure or de facto mayor for the 1995-1998 term is inconsequential in the application of the three term limit because the prohibition speaks or "service of a term" which was intended by the framers of the Constitution to foil any attempt to monopolize political power. It is likewise argued by the respondent that a petition for quo warranto with the regional trial court is proper when the petition for disqualification is filed after the elections and so the instant petition for disqualification which was filed before the elections may be resolved by the COMELEC thereafter regardless of the imputed basis of disqualification. The petitioner filed Reply to the comment. It is maintained that the petitioner could not have served a valid term from 1995 to 1998 although he assumed office as mayor for that period because he was not lawfully elected to the said office. Moreover, the petitioner was unseated before the expiration of the term and so his service for the period cannot be considered as one full term. As regards the issue of jurisdiction, the petitioner reiterated in his Reply that the COMELEC ceased to have jurisdiction to hear the election protest after the petitioner's proclamation. The petition has merit. Sec. 8, Art. X of the Constitution provides: Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law shall be three years and no such officials shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Sec. 43 of the Local Government Code (R.A. No. 7160) restates the same rule: Sec. 43. Term of Office. (b) No local elective official shall serve for more than three consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected. The issue before us is whether petitioner Lonzanida's assumption of office as mayor of San Antonio Zambales from May 1995 to March 1998 may be considered as service of one full term for the purpose of applying the three-term limit for elective local government officials. The records of the 1986 Constitutional Commission show that the three-term limit which is now embodied in section 8, Art. X of the Constitution was initially proposed to be an absolute bar to any elective local government official from running for the same position after serving three consecutive terms. The said disqualification was primarily intended to forestall the accumulation of massive political power by an elective local government official in a given locality in order to perpetuate his tenure in office. The delegates also considered the need to broaden the choices of the electorate of the candidates who will run for office, and to infuse new blood in the political arena by disqualifying officials from running for the same office after a term of nine years. The mayor was compared by some delegates to the President of the Republic as he is a powerful chief executive of his political territory and is most likely to form a political dynasty. 1 The drafters however, recognized and took note of the fact that some local government officials run for
office before they reach forty years of age; thus to perpetually bar them from running for the same office after serving nine consecutive years may deprive the people of qualified candidates to choose from. As finally voted upon, it was agreed that an elective local government official should be barred from running for the same post after three consecutive terms. After a hiatus of at least one term, he may again run for the same office. 2

The scope of the constitutional provision barring elective local officials with the exception of barangay officials from serving more than three consecutive terms was discussed at length in the case of Benjamin Borja, Jr.; vs.COMELEC and Jose Capco, Jr. 3 where the issue raised was whether a vice-mayor who succeeds to the
office of the mayor by operation of law upon the death of the incumbent mayor and served the remainder of the term should be considered to have served a term in that office for the purpose of computing the three term limit. This court pointed out that from the discussions of the Constitutional Convention it is evident that the delegates proceeded from the premise that the official's assumption of office is by reason of election. This Court stated: 4

Two ideas emerge from a consideration of the proceedings of the Constitutional Commission. The first is the notion of service of term, derived from the concern about the accumulation of power as a result of a prolonged stay in office. The second is the idea of election, derived from the concern that the right of the people to choose those whom they wish to govern them be preserved.

It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did so on the assumption that the officials concerned were serving by reason of election. This is clear from the following exchange in the Constitutional Commission concerning term limits, now embodied in Art. VI sections 4 and 7 of the Constitution, for members of Congress: MR. GASCON. I would like to ask a question with regard to the issue after the second term. We will allow the Senator to rest for a period of time before he can run again? MR. DAVIDE. That is correct. MR. GASCON. And the question that we left behind before if the Gentlemen will remember-was: How long will that period of rest be? Will it be one election which is three years or one term which is six years? MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed the view that during the election following the expiration of the first 12 years, whether such election will be on the third year or on the sixth year thereafter, this particular member of the Senate can run. So it is not really a period of hibernation for six years. That was the Committees' stand. xxx xxx xxx Second, not only historical examination but textual analysis as well supports the ruling of the COMELEC that Art X, section 8 contemplates service by local officials for three consecutive terms as a result of election. The first sentence speaks of "the-term of office of elective local officials" and bars "such officials" from serving for more than three consecutive terms. The second sentence, in explaining when an elective official may be deemed to have served his full term of office, states that "voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected." The term served must therefore be one "for which the official concerned was elected." The purpose of the provision is to prevent a circumvention of the limitation on the number of terms an elective official may serve." This Court held that the two conditions for the application of the disqualification must concur: 1) that the official concerned has been elected for three consecutive terms in the same local government post and 2) that he has fully served three consecutive terms. It stated: To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have beenelected to the same position for the same number of times before the disqualification can apply. It is not disputed that the petitioner was previously elected and served two consecutive terms as mayor of San Antonio Zambales prior to the May 1995 mayoral elections. In the May 1995 elections he again ran for mayor of San Antonio, Zambales and was proclaimed winner. He assumed office and discharged the rights and duties of mayor until March 1998 when he was ordered to vacate the post by reason of the COMELEC decision dated November 13, 1997 on the election protest against the petitioner which declared his opponent Juan Alvez, the duly elected mayor of San Antonio. Alvez served the remaining portion of the 1995-1998 mayoral term. The two requisites for the application of the three term rule are absent. First, the petitioner cannot be considered as having been duly elected to the post in the May 1995 elections, and second, the petitioner did not fully serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office. After a re-appreciation and revision of the contested ballots the COMELEC itself declared by final judgment that petitioner Lonzanida lost in the May 1995 mayoral elections and his previous proclamation as winner was declared null and void. His assumption of office as mayor cannot be deemed to have been by reason of a valid election but by reason of a void proclamation. It has been repeatedly held by this court that a proclamation subsequently declared void is no proclamation at all 5 and
while a proclaimed candidate may assume office on the strength of the proclamation of the Board of Canvassers he is only a presumptive winner who assumes office subject to the final outcome of the election protest. 6Petitioner Lonzanida did not serve a term as mayor of San Antonio, Zambales from May 1995 to March 1998 because he was not duly elected to the post; he merely assumed office as presumptive winner, which presumption was later overturned by the COMELEC when it decided with finality that Lonzanida lost in the May 1995 mayoral elections.

Second, the petitioner cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate his post before the expiration of the term. The respondents' contention that the petitioner should be deemed to have served one full term from May 1995-1998 because he served the greater portion of that term has no legal basis to support it; it disregards the second requisite for the application of the disqualification, i.e., that he has fully served three consecutive terms. The second sentence of the constitutional provision under scrutiny states, "Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected. "The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the

people's choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral term. In sum, the petitioner was not the duly elected mayor and that he did not hold office for the full term; hence, his assumption of office from 1995 to March 1998 cannot be counted as a term for purposes of computing the three term limit. The Resolution of the COMELEC finding him disqualified on this ground to run in the May 1998 mayoral elections should therefore be set aside. The respondents harp on the delay in resolving the election protest between petitioner and his then opponent Alvez which took roughly about three years and resultantly extended the petitioners incumbency in an office to which he was not lawfully elected. We note that such delay cannot be imputed to the petitioner. There is no specific allegation nor proof that the delay was due to any political maneuvering on his part to prolong his stay in office. Moreover, protestant Alvez, was not without legal recourse to move for the early resolution of the election protest while it was pending before the regional trial court or to file a motion for the execution of the regional trial court's decision declaring the position of mayor vacant and ordering the vice-mayor to assume office while the appeal was pending with the COMELEC. Such delay which is not here shown to have intentionally sought by the petitioner to prolong his stay in office cannot serve as basis to bar his right to be elected and to serve his chosen local government post in the succeeding mayoral election. The petitioner's contention that the COMELEC ceased to have jurisdiction over the petition for disqualification after he was proclaimed winner is without merit. The instant petition for disqualification was filed on April 21, 1998 or before the May 1998 elections and was resolved on May 21, 1998 or after the petitioner's proclamation. It was held in the case of Sunga vs. COMELEC and Trinidad 7 that the proclamation nor the assumption of office of a candidate
against whom a petition for disqualification is pending before the COMELEC does not divest the COMELEC of jurisdiction to continue hearing the case and to resolve it on the merits.

Sec. 6 of RA 6646 specifically mandates that: Sec. 6. Effects of disqualification Case. any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the court or commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. This court held that the clear legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion i.e., until judgment is rendered. The outright dismissal of the petition for disqualification filed before the election but which remained unresolved after the proclamation of the candidate sought to be disqualified will unduly reward the said candidate and may encourage him to employ delaying tactics to impede the resolution of the petition until after he has been proclaimed. The court stated: Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion i.e., until judgment is rendered thereon. The word "shall" signified that this requirement of the law is mandatory, operating to impose a positive duty which must be enforced. The implication is that the COMELEC is left with no discretion but to proceed with the disqualification case even after the election. Thus, in providing for the outright dismissal of the disqualification case which remains unresolved after the election, Silvestre vs. Duavit in effect disallows what R.A. No. 6646 imperatively requires. This amounts to a quasi-judicial legislation by the COMELEC which cannot be countenanced and is invalid for having been issued beyond the scope of its authority. Interpretative rulings of quasi-judicial bodies or administrative agencies must always be in perfect harmony with statutes and should be for the sole purpose of carrying their general provisions into effect. By such interpretative or administrative rulings, of course, the scope of the law itself cannot be limited. Indeed, a quasi-judicial body or an administrative agency for that matter cannot amend an act of Congress. Hence, in case of a discrepancy between the basic law and an interpretative or administrative ruling, the basic law prevails. Besides, the deleterious effect of the Silvestre ruling is not difficult to foresee. A candidate guilty of election offenses would be undeservedly rewarded, instead of punished, by the dismissal of the disqualification case against him simply because the investigating body was unable, for any reason caused upon it, to determine before the election if the offenses were indeed committed by the candidate sought to be disqualified. All that the erring aspirant would need to do is to employ delaying tactics so that the disqualification case based on the commission of election offenses would

not be decided before the election. This scenario is productive of more fraud which certainly is not the main intent and purpose of the law. The fact that Trinidad was already proclaimed and had assumed the position of mayor did not divest the COMELEC of authority and jurisdiction to continue the hearing and eventually decide the disqualification case. In Aguam v. COMELEC this Court held Time and again this Court has given its imprimatur on the principle that COMELEC is with authority to annul any canvass and proclamation which was illegally made. The fact that a candidate proclaimed has assumed office, we have said, is no bar to the exercise of such power. It of course may not be availed of where there has been a valid proclamation. Since private respondent's petition before the COMELEC is precisely directed at the annulment of the canvass and proclamation, we perceive that inquiry into this issue is within the area allocated by the Constitution and law to COMELEC . . . Really, were a victim of a proclamation to be precluded from challenging the validity thereof after that proclamation and the assumption of office thereunder, baneful effects may easily supervene. It must be emphasized that the purpose of a disqualification proceeding is to prevent the candidate from running or, if elected. From serving, or to prosecute him for violation of the election laws. Obviously, the fact that a candidate has been proclaimed elected does not signify that his disqualification is deemed condoned and may no longer be the subject of a separate investigation . Accordingly, the petition is granted. The assailed resolutions of the COMELEC declaring petitioner Lonzanida disqualified to run for mayor in the 1998 mayoral elections are hereby set aside.
1w phi1.nt

SO ORDERED.

G.R. No. 167591

May 9, 2007

ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN, Petitioners, vs. COMELEC and MARINO "BOKING" MORALES, Respondents. x---------------------------------------------x G.R. No. 170577 May 9, 2007

ANTHONY D. DEE, Petitioner, vs. COMELEC and MARINO "BOKING" MORALES, Respondents. DECISION SANDOVAL-GUTIERREZ, J.: For our resolution are two consolidated petitions for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, assailing the Resolutions dated March 14, 2005 and November 8, 2005 of the COMELEC En Banc. G.R. No. 167591 ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN v. COMELEC and MARINO "BOKING" MORALES In the May 2004 Synchronized National and Local Elections, respondent Marino "Boking" Morales ran as candidate for mayor of Mabalacat, Pampanga for the term commencing July 1, 2004 to June 30, 2007. Prior thereto or on January 5, 2004, he filed his Certificate of Candidacy. On January 10, 2004, Attys. Venancio Q. Rivera and Normandick De Guzman, petitioners, filed with the Second Division of the Commission on Elections (COMELEC) a petition to cancel respondent Morales Certificate of Candidacy on the ground that he was elected and had served three previous consecutive terms as mayor of Mabalacat. They alleged that his candidacy violated Section 8, Article X of the Constitution and Section 43 (b) of Republic Act (R.A.) No. 7160, also known as the Local Government Code. In his answer to the petition, respondent Morales admitted that he was elected mayor of Mabalacat for the term commencing July 1, 1995 to June 30, 1998 (first term) and July 1, 2001 to June 30, 2004 (third term), but he served the second term from July 1, 1998 to June 30, 2001 only as a "caretaker of the office" or as a "de facto officer" because of the following reasons: a. He was not validly elected for the second term 1998 to 2001 since his proclamation as mayor was declared void by the Regional Trial Court (RTC), Branch 57, Angeles City in its Decision dated April 2, 2001 in Election Protest Case (EPC) No. 98-131. The Decision became final and executory on August 6, 2001; and b. He was preventively suspended by the Ombudsman in an anti-graft case from January 16, 1999 to July 15, 1999. On May 6, 2004, the COMELEC Second Division rendered its Resolution finding respondent Morales disqualified to run for the position of municipal mayor on the ground that he had already served three (3) consecutive terms. Accordingly, his Certificate of Candidacy was cancelled. On May 7, 2004, he filed with the COMELEC En Banc a motion for reconsideration. On March 14, 2005, the COMELEC En Banc issued a Resolution granting respondent Morales motion for reconsideration and setting aside that of the Second Division. The COMELEC En Banc held that since the Decision in EPC No. 98-131 of the RTC, Branch 57, Angeles City declared respondent Morales proclamation void, his discharge of the duties in the Office of the Mayor in Mabalacat is that of a de facto officer or a de facto mayor. Therefore, his continuous service for three consecutive terms has been severed. Hence, this petition for certiorari. G.R. No. 170577 ANTHONY DEE v. COMMISSION ON ELECTIONS and MARIO "BOKING" MORALES On May 24, 2004, after respondent Morales was proclaimed the duly elected mayor of Mabalacat for the term commencing July 1, 2004 to June 30, 2007, petitioner Anthony Dee, also a candidate for mayor, filed with the RTC,

Branch 61, Angeles City a petition for quo warranto against the said respondent. Petitioner alleged that respondent Morales, having served as mayor for three consecutive terms, is ineligible to run for another term or fourth term. The case was docketed as Civil Case No. 11503. In his answer, respondent Morales raised the following defenses: a. He was not validly elected for the term 1998 to 2001 since the RTC, Branch 57, Angeles City declared in its Decision that his proclamation as mayor of Mabalacat was void. Petitioner Dee was then proclaimed the duly elected mayor; and b. He was preventively suspended for six months by the Ombudsman, during the same term in an anti-graft case, an interruption in the continuity of his service as municipal mayor of Mabalacat.1 In its Decision dated November 22, 2004, the RTC dismissed petitioner Dees petition for quo warranto on the ground that respondent Morales did not serve the three-term limit since he was not the duly elected mayor of Mabalacat, but petitioner Dee in the May 1998 elections for the term 1998 to 2001, thus: Respondent, Marino Morales, was not the duly elected mayor of Mabalacat, Pampanga in the May 1998 elections for the term 1998 to 2001 because although he was proclaimed as the elected mayor of Mabalacat, Pampanga by the Municipal Board of Canvassers, had assumed office and discharged the duties of mayor, his close rival, the herein petitioner, Anthony D. Dee, was declared the duly elected Mayor of Mabalacat, Pampanga in the Decision promulgated on April 2, 2001 in Election Protest EPC No. 98-131 filed by Anthony Dee against herein respondent, Marino Morales, and decided by RTC, Br. 57, Angeles City. x x x. Petitioner Dee interposed an appeal to the COMELEC First Division, alleging that respondent Morales violated the three-term limit rule when he ran for re-election (fourth time) as mayor in the 2004 elections. Consequently, his proclamation as such should be set aside. In a Resolution dated July 29, 2005 the COMELEC First Division issued a Resolution dismissing the appeal. It held that respondent Morales cannot be deemed to have served as mayor of Mabalacat during the term 1998 to 2001 because his proclamation was declared void by the RTC, Branch 57 of Angeles City. He only served as a caretaker, thus, his service during that term should not be counted. On August 12, 2005, petitioner Dee filed with the COMELEC En Banc a motion for reconsideration. In a Resolution dated November 8, 2005, the COMELEC En Banc affirmed the questioned Resolution of the Second Division. Hence, petitioner Dees instant petition for certiorari. Both cases may be decided based on the same facts and issues. It is undisputed that respondent Morales was elected to the position of mayor of Mabalacat for the following consecutive terms: a) July 1, 1995 to June 30, 1998 b) July 1, 1998 to June 30, 2001 c) July 1, 2001 to June 30, 2004 d) July 1, 2004 to June 30, 2007 THE PRINCIPAL ISSUE. Respondent Morales argued and the Comelec held that the July 1, 2003 to June 30, 2007 term is not his fourth because his second term, July 1, 1998 to June 30, 2001 to which he was elected and which he served, may not be counted since his proclamation was declared void by the RTC, Branch 57 of Angeles City. Respondent Morales is wrong. This Court, through Mr. Justice Cancio C. Garcia, resolved the same issue in Ong v. Alegre2 with identical facts, thus: To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each other for the office of mayor of San Vicente, Camarines Norte, with the latter being subsequently proclaimed by the COMELEC winner in the contest. Alegre subsequently filed an election protest, docketed as Election Case No. 6850 before the Regional Trial Court (RTC) at Daet, Camarines Norte. In it, the RTC declared Alegre as the duly elected mayor in that 1998 mayoralty contest, albeit the decision came out only on July 4, 2001, when Francis had fully served the 1998-2001 mayoralty term and was in fact already starting to serve the 2001-2004 term as mayor-elected for the municipality of San Vicente. xxx

A resolution of the issues thus formulated hinges on the question of whether or not petitioner Francis assumption of office as mayor of San Vicente, Camarines Norte for the mayoralty term 1998 to 2001 should be considered as full service for the purpose of the three-term limit rule. Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on the other hand, disagrees. He argues that, while he indeed assumed office and discharged the duties as Mayor of San Vicente for three consecutive terms, his proclamation as mayor-elected in the May 1998 election was contested and eventually nullified per the Decision of the RTC of Daet, Camarines Norte dated July 4, 2001. Pressing the point, petitioner argues, citing Lonzanida v. Comelec, that a proclamation subsequently declared void is no proclamation at all and one assuming office on the strength of a protested proclamation does so as a presumptive winner and subject to the final outcome of the election protest. xxx For the three-term limit for elective local government officials to apply, two conditions or requisites must concur, to wit: (1) that the official concerned has been elected for three (3) consecutive terms in the same local government post, and (2) that he has fully served three (3) consecutive terms. With the view we take of the case, the disqualifying requisites are present herein, thus effectively barring petitioner Francis from running for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. There can be no dispute about petitioner Francis Ong having been duly elected mayor of that municipality in the May 1995 and again in the May 2001 elections and serving the July 1, 1995-June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full. The herein controversy revolves around the 1998-2001 mayoral term, albeit there can also be no quibbling that Francis ran for mayor of the same municipality in the May 1998 elections and actually served the 1998-2001 mayoral term by virtue of a proclamation initially declaring him mayor-elect of the municipality of San Vicente. The question that begs to be addressed, therefore, is whether or not Francis assumption of office as Mayor of San Vicente, Camarines Norte from July 1, 1998 to June 30, 2001, may be considered as one full term service in the context of the consecutive three-term limit rule. We hold that such assumption of office constitutes, for Francis, "service for the full term," and should be counted as a full term served in contemplation of the three-term limit prescribed by the constitutional and statutory provisions, supra, barring local elective officials from being elected and serving for more than three consecutive terms for the same position. It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850, that it was Francis opponent (Alegre) who "won" in the 1998 mayoralty race and, therefore, was the legally elected mayor of San Vicente. However, that disposition, it must be stressed, was without practical and legal use and value, having been promulgated after the term of the contested office has expired. Petitioner Francis contention that he was only a presumptive winner in the 1998 mayoralty derby as his proclamation was under protest did not make him less than a duly elected mayor. His proclamation by the Municipal Board of Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from start to finish of the term, should legally be taken as service for a full term in contemplation of the three-term rule. The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view would mean that Alegre would-under the three-term rule-be considered as having served a term by virtue of a veritably meaningless electoral protest ruling, when another actually served such term pursuant to a proclamation made in due course after an election. Petitioner cites, but, to our mind, cannot seek refuge from the Courts ruling in Lonzanida v. Comelec, citing Borja v. Comelec. In Lonzanida, petitioner Lonzanida was elected and served for two consecutive terms as mayor of San Antonio, Zambales prior to the May 8, 1995 elections. He then ran again for the same position in the May 1995 elections, won and discharged his duties as Mayor. However, his opponent contested his proclamation and filed an election protest before the RTC of Zambales, which, in a decision dated January 8, 1997, ruled that there was afailure of elections and declared the position vacant. The COMELEC affirmed this ruling and petitioner Lonzanida acceded to the order to vacate the post. Lonzanida assumed the office and performed his duties up to March 1998 only. Now, during the May 1998 elections, Lonzanida again ran for mayor of the same town. A petition to disqualify, under the three-term rule, was filed and was eventually granted. There, the Court held that Lonzanida cannot be considered as having been duly elected to the post in the May 1995 election, and that he did not fully serve the 1995-1998 mayoralty term by reason of involuntary relinquishment of office. As the Court pointedly observed, Lonzanida "cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate [and in fact vacated] his post before the expiration of the term." The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the result of the mayoralty elections was declared a nullity for the stated reason of "failure of election," and, as a consequence thereof, the proclamation of Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the office of the mayor. For another, Lonzanida did not fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a result of legal processes. In fine, there was an effective interruption of the continuity of service.

On the other hand, the failure-of-election factor does not obtain in the present case. But more importantly, here, there was actually no interruption or break in the continuity of Francis service respecting the 1998-2001 term. Unlike Lonzanida, Francis was never unseated during the term in question; he never ceased discharging his duties and responsibilities as mayor of San Vicente, Camarines Norte for the entire period covering the 1998-2001 term. It bears stressing that in Ong v. Alegre cited above, Francis Ong was elected and assumed the duties of the mayor of San Vicente, Camarines Norte for three consecutive terms. But his proclamation as mayor in the May 1998 election was declared void by the RTC of Daet, Camarines Norte in its Decision dated July 4, 2001. As ruled by this Court, his service for the term 1998 to 2001 is for the full term. Clearly, the three-term limit rule applies to him. Indeed, there is no reason why this ruling should not also apply to respondent Morales who is similarly situated. Here, respondent Morales invoked not only Lonzanida v. COMELEC,3 but also Borja, Jr. v. Commission on Elections4 which is likewise inapplicable. The facts in Borja are: Private respondent Jose T. Capco was elected vice-mayor of Pateros on January 18, 1998 for a term ending June 30, 1992. On September 2, 1989, he became mayor, by operation of law, upon the death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was elected mayor for a term of three years which ended on June 30, 1995. On May 8, 1995, he was reelected mayor for another term of three years ending June 30, 1998. On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of Pateros relative to the May 11, 1998 elections, Petitioner Benjamin U. Borja, Jr., who was also a candidate for mayor, sought Capcos disqualification on the theory that the latter would have already served as mayor for three consecutive terms by June 30, 1998 and would therefore be ineligible to serve for another term after that. On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of petitioner and declared private respondent Capco disqualified from running for reelection as mayor of Pateros. However, on motion of private respondent, the COMELEC en banc, voting 5-2, reversed the decision and declared Capco eligible to run for mayor in the May 11, 1998 elections. x x x This Court held that Capcos assumption of the office of mayor upon the death of the incumbent may not be regarded as a "term" under Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160 (the Local Government Code). He held the position from September 2, 1989 to June 30, 1992, a period of less than three years. Moreover, he was not elected to that position. Similarly, in Adormeo v. COMELEC,5 this Court ruled that assumption of the office of mayor in a recall election for the remaining term is not the "term" contemplated under Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160 (the Local Government Code). As the Court observed, there was a "break" in the service of private respondent Ramon T. Talanga as mayor. He was a "private citizen" for a time before running for mayor in the recall elections. Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001. He assumed the position. He served as mayor until June 30, 2001. He was mayor for the entire period notwithstanding the Decision of the RTC in the electoral protest case filed by petitioner Dee ousting him (respondent) as mayor. To reiterate, as held in Ong v. Alegre,6 such circumstance does not constitute an interruption in serving the full term. Section 8, Article X of the Constitution can not be more clear and explicit The term of the office of elected local officials x x x, shall be three years and no such official shall serve for more than three consecutive terms. x x x Upon the other hand, Section 43 (b) of R.A. No. 7160 (the Local Government Code) clearly provides: No local official shall serve for more than three consecutive terms in the same position. x x x Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat continuously without any break since July 1, 1995. In just over a month, by June 30, 2007, he will have been mayor of Mabalacat for twelve (12) continuous years. In Latasa v. Comelec,7 the Court explained the reason for the maximum term limit, thus: The framers of the Constitution, by including this exception, wanted to establish some safeguards against the excessive accumulation of power as a result of consecutive terms. As Commissioner Blas Ople stated during the deliberations: x x x I think we want to prevent future situations where, as a result of continuous service and frequent re-elections, officials from the President down to the municipal mayor tend to develop a proprietary interest in their positions and to accumulate these powers and prerequisites that permit them to stay on indefinitely or to transfer these posts to members of their families in a subsequent election. x x x

xxx It is evident that in the abovementioned cases, there exists a rest period or a break in the service of local elective official. In Lonzanida, petitioner therein was a private citizen a few months before the next mayoral elections. Similarly, in Adormeo and Socrates, the private respondents therein lived as private citizens for two years and fifteen months respectively. Indeed, the law contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit. This Court reiterates that the framers of the Constitution specifically included an exception to the peoples freedom to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city mayor after having served for three consecutive terms as municipal mayor would obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another three consecutive term as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the Constitution, if not abhorred by it. This is the very situation in the instant case. Respondent Morales maintains that he served his second term (1998 to 2001) only as a "caretaker of the office" or as a "de facto officer." Section 8, Article X of the Constitution is violated and its purpose defeated when an official serves in the same position for three consecutive terms. Whether as "caretaker" or "de facto" officer, he exercises the powers and enjoys the prerequisites of the office which enables him "to stay on indefinitely". Respondent Morales should be promptly ousted from the position of mayor of Mabalacat. G.R. No. 167591 Having found respondent Morales ineligible, his Certificate of Candidacy dated December 30, 2003 should be cancelled. The effect of the cancellation of a Certificate of Candidacy is provided under Sections 6 and 7 of R.A. No. 6646, thus: SECTION 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong. SECTION 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy. The procedure hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881. in relation to Section 211 of the Omnibus Election Code, which provides: SEC. 211. Rules for the appreciation of ballots. In the reading and appreciation of ballots, every ballot shall be presumed to be valid unless there is clear and good reason to justify its rejection. The board of election inspectors shall observe the following rules, bearing in mind that the object of the election is to obtain the expression of the voters will: xxx 19. Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an office for which he did not present himself shall be considered as a stray vote but it shall not invalidate the whole ballot. xxx In the light of the foregoing, respondent Morales can not be considered a candidate in the May 2004 elections. Not being a candidate, the votes cast for him SHOULD NOT BE COUNTED and must be considered stray votes. G.R. No. 170577 Since respondent Morales is DISQUALIFIED from continuing to serve as mayor of Mabalacat, the instant petition for quo warranto has become moot. Going back to G.R. No. 167591, the question now is whether it is the vice-mayor or petitioner Dee who shall serve for the remaining portion of the 2004 to 2007 term.

In Labo v. Comelec,8 this Court has ruled that a second place candidate cannot be proclaimed as a substitute winner, thus: The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office. xxx It is therefore incorrect to argue that since a candidate has been disqualified, the votes intended for the disqualified candidate should, in effect, be considered null and void. This would amount to disenfranchising the electorate in whom sovereignty resides. At the risk of being repetitious, the people of Baguio City opted to elect petitioner Labo bona fide, without any intention to misapply their franchise, and in the honest belief that Labo was then qualified to be the person to whom they would entrust the exercise of the powers of the government. Unfortunately, petitioner Labo turned out to be disqualified and cannot assume the office. Whether or not the candidate whom the majority voted for can or cannot be installed, under no circumstances can minority or defeated candidate be deemed elected to the office. Surely, the 12,602 votes cast for petitioner Ortega is not a larger number than the 27,471 votes cast for petitioner Labo (as certified by the Election Registrar of Baguio City; rollo, p. 109; GR No. 105111). xxx As a consequence of petitioners ineligibility, a permanent vacancy in the contested office has occurred. This should now be filled by the vice-mayor in accordance with Section 44 of the Local Government Code, to wit: Sec. 44. Permanent vacancies in the Offices of the Governor, Vice-Governor, Mayor and Vice-Mayor. (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or the vice-mayor concerned shall become the governor or mayor. x x x WHEREFORE, the petition in G.R. No. 167591 is GRANTED. Respondent Morales Certificate of Candidacy dated December 30, 2003 is cancelled. In view of the vacancy in the Office of the Mayor in Mabalacat, Pampanga, the vice-mayor elect of the said municipality in the May 10, 2004 Synchronized National and Local Elections is hereby declared mayor and shall serve as such for the remaining duration of the term July 1, 2004 to June 30, 2007. The petition in G.R. No. 170577 is DISMISSED for being moot. This Decision is immediately executory. SO ORDERED.

G.R. No. 163756

January 26, 2005

GEORGIDI B. AGGABAO, petitioner, vs. THE COMMISSION ON ELECTIONS, the PROVINCIAL BOARD of CANVASSERS of ISABELA, and ANTHONY MIRANDA, respondents. DECISION YNARES-SANTIAGO, J.: This Petition for Certiorari1 seeks to annul and set aside as having been issued with grave abuse of discretion Resolution No. 7233 of the COMELEC En Banc and the proclamation of private respondent Anthony Miranda as Congressman for the 4th District of Isabela.2 Petitioner Georgidi B. Aggabao and private respondent Anthony Miranda were rival congressional candidates for the 4th District of Isabela during the May 10, 2004 elections. During the canvassing of the certificates of canvass of votes (COCV) for the municipalities of Cordon and San Agustin, Miranda moved for the exclusion of the 1st copy of the COCV on grounds that it was tampered with; prepared under duress; differed from other authentic copies and contained manifest errors.3 Aggabao objected arguing that the grounds raised by Miranda are proper only for a pre-proclamation controversy which is not allowed in elections for Members of the House of Representatives.4 On May 22, 2004, the reconstituted Provincial Board of Canvassers (PBC) excluded from canvass the contested COCVs and used instead the 4th and 7th copies of the COCVs.5 Based on the results, Miranda garnered the highest number of votes for the position of Congressman. On appeal with the COMELEC,6 petitioner asserted that the PBC acted without jurisdiction7 when it heard Mirandas Petition for Exclusion. Even assuming that the PBC had jurisdiction over the petition, it still erred in excluding the contested COCVs as they appeared regular and properly authenticated.8 On June 6, 2004, private respondent filed a Very Urgent Motion for Proclamation9 which was opposed10 by petitioner who contended that the pendency of his appeal with the COMELEC Second Division is a bar to Mirandas proclamation. In a Memorandum dated June 8, 2004, Commissioner Mehol K. Sadain, commissioner in-charge for Regions II and III, approved the proclamation of the remaining winning candidates for the province of Isabela.11 On June 9, 2004, the COMELEC En Banc issued Resolution No. 7233 likewise directing the proclamation of the remaining winning candidates in Isabela.12 On the same day, petitioner filed with the COMELEC an Urgent Motion to Set Aside the Notice of Proclamation with Prayer for the Issuance of a Temporary Restraining Order.13 On June 14, 2004, Miranda was proclaimed as the duly elected Congressman for the 4th District of Isabela.14 Two days after the proclamation, Aggabao filed this petition assailing Resolution No. 7233. He claimed that the COMELEC En Banc acted without jurisdiction when it ordered Mirandas proclamation considering that the Second Division has not yet resolved the appeal. In his Comment,15 Miranda moved for the dismissal of the petition considering that the issue raised by Aggabao is best addressed to the House of Representatives Electoral Tribunal (HRET).16 On August 27, 2004, the petitioner filed a Consolidated Motion for Early Resolution; Manifestation that the COMELEC Second Division Issued a Resolution Sustaining the Appeal of the Petitioner; and Reply to the Comment.17 He manifested that on August 16, 2004, the COMELEC Second Division gave due course to his pending appeal.18 At the same time, he bewailed the failure of the COMELEC Second Division to annul the proclamation.19 The basic issue for resolution is whether we can take cognizance of this petition. Certiorari as a special civil action can be availed of only if there is concurrence of the essential requisites, to wit: (a) the tribunal, board or officer exercising judicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction, and (b) there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law for the purpose of annulling or modifying the proceeding. There must be capricious, arbitrary and whimsical exercise of power for it to prosper.20 Article VI, Section 17 of the 1987 Constitution provides:

Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organization registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. In Pangilinan v. Commission on Elections21 we ruled that: The Senate and the House of Representatives now have their respective Electoral Tribunals which are the "sole judge of all contests relating to the election, returns, and qualifications of their respective Members, thereby divesting the Commission on Elections of its jurisdiction under the 1973 Constitution over election cases pertaining to the election of the Members of the Batasang Pambansa (Congress). It follows that the COMELEC is now bereft of jurisdiction to hear and decide pre-proclamation controversies against members of the House of Representatives as well as of the Senate. The HRET has sole and exclusive jurisdiction over all contests relative to the election, returns, and qualifications of members of the House of Representatives. Thus, once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, COMELECs jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRETs own jurisdiction begins.22 It is undisputed that Miranda has already been proclaimed, taken his oath and assumed office on June 14, 2004. As such, petitioners recourse would have been to file an electoral protest before the HRET. His remedy is not this petition for certiorari. Thus: Finally, the private respondent Feliciano Belmonte, Jr. has already been proclaimed as the winner in the congressional elections in the fourth district of Quezon City. He has taken his oath of office and assumed his duties as representative; hence, the remedy open to the petitioner was to have filed an electoral protest with the Electoral Tribunal of the House of Representatives.23 The allegation that Mirandas proclamation is null and void ab initio does not divest the HRET of its jurisdiction. Thus: (I)n an electoral contest where the validity of the proclamation of a winning candidate who has taken his oath of office and assumed his post as Congressman is raised, that issue is best addressed to the HRET. The reason for this ruling is self-evident, for it avoids duplicity of proceedings and a clash of jurisdiction between constitutional bodies, with due regard to the peoples mandate.24 In Lazatin v. Commission on Elections25 we ruled that, upon proclamation of the winning candidate and despite its alleged invalidity, the COMELEC is divested of its jurisdiction to hear the protest. Thus: The petition is impressed with merit because the petitioner has been proclaimed winner of the Congressional elections in the first district of Pampanga, has taken his oath of office as such, and assumed his duties as Congressman. For this Court to take cognizance of the electoral protest against him would be to usurp the functions of the House Electoral Tribunal. The alleged invalidity of the proclamation (which has been previously ordered by the COMELEC itself) despite alleged irregularities in connection therewith, and despite the pendency of the protests of the rival candidates, is a matter that is also addressed, considering the premises, to the sound judgment of the Electoral Tribunal.
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In this case, certiorari will not lie considering that there is an available and adequate remedy in the ordinary course of law for the purpose of annulling or modifying the proceedings before the COMELEC. After the proclamation, petitioners remedy was an electoral protest before the HRET. The resolution of the issues presented in this petition is best addressed to the sound judgment and discretion of the electoral tribunal. WHEREFORE, in view of the foregoing, the instant Petition for Certiorari is DISMISSED for lack of merit. No pronouncement as to costs. SO ORDERED.

G.R. No. 207264

June 25, 2013

REGINA ONGSIAKO REYES, Petitioner, vs. COMMISSION ON ELECTIONS and JOSEPH SOCORRO B. TAN, Respondents. DISSENTING OPINION BRION, J.: The petition before us is a petition for certiorari1 with a prayer for a temporary restraining order, preliminary injunction and/or status quo ante order, that seeks to annul: (1) the respondent Commission on Elections (COMELEC) March 27, 20132 and May 14, 20133 COMELEC Resolutions cancelling petitioner Regina Ongsiako Reyes' (petitioner or Reyes) Certificate of Candidacy ( COC) for the position of Representative in the lone district of Marinduque, and (2) the June 5, 2013 Certificate of Finality4 declaring the May 14, 2013 Resolution final and executory in SPA Case No. 13-053(DC). I. THE CASE AND THE DISSENT IN CONTEXT I submit this Dissenting Opinion to express my strong reservations to the majority's outright dismissal of this most unusual case a term I do not use lightly as shown by the reasons stated below. I clarify at the outset that the present case is at its inception stage; it is a newly filed petition that the Court is acting upon for the first time and which the majority opted to DISMISS OUTRIGHT after an initial review, based solely on the petition and its annexes and its "finding that there was no grave abuse of discretion on the part of the Commission on Elections." Subsequent to the COMELEC's rulings, however, intervening events occurred that might have materially affected the jurisdictional situation and the procedural requirements in handling and resolving the case. The petitioner was proclaimed as the winner by the Marinduque Provincial Board of Canvassers (PBOC), and she subsequently took her oath of office. This Dissent is filed, not on the basis of the intrinsic merits of the case, but because of the outright and reckless denial of the minoritys plea that the respondents be required to at least COMMENT on the petition in light of the gravity of the issues raised, the potential effect on jurisprudence, and the affected personal relationships within and outside the Court, before any further action can be made. The presented issues refer to - the Courts lack of jurisdiction over the subject matter of the petition, which jurisdiction should now lie with the House of Representatives Electoral Tribunal (HRET), and - the grave abuse of discretion by the COMELEC in handling the case that led to the assailed COMELEC decision. Viewed in these lights, it should be appreciated that the Court in effect did not rule on the merits of the case after considering the parties legal and factual positions. The majoritys Resolution is in fact only a ruling that the Court no longer wishes to review the COMELECs rulings despite the issues raised and the attendant intervening circumstances. Despite its seemingly simple approach, the Courts outright dismissal of the petition is replete with profound effects on the petitioner on the indirect beneficiary of the ruling, and on jurisprudence, as it effectively upholds the disqualification of petitioner and leaves the remaining candidate in Marinduque as an unopposed candidate.5What is not easily seen by the lay observer is that by immediately ruling and avoiding the jurisdiction of the HRET on the matter of qualification, the majority avoids a quo warranto petition that, if successful, would render petitioner Reyes disqualified, leaving the congressional position in Marinduques lone district vacant. Significantly, the Dissent is not a lonely one made solely by the undersigned; he is joined by three (3) other Justices.6 Seven (7) Justices7 formed the majority with three (3) Justices inhibiting for personal reasons,8 with one (1) Justice absent.9 II. SUMMARY OF THE DISSENTS SUPPORTING POSITIONS That this unusual case at least deserves further proceedings from this Court other than the OUTRIGHT DISMISSAL the majority ordered, is supported by the following considerations: First, the questions raised in the petition are NOT too unsubstantial to warrant further proceedings. a. Under Section 6, Rule 64 of the Rules of Court, the Court may dismiss the petition if it was filed manifestly for delay, or the questions raised are too unsubstantial to warrant further proceedings. In the present case,

the majority dismissed the petition outright despite the threshold issue of jurisdiction that Reyes squarely raised. b. The due process issues Reyes raised with respect to the COMELEC proceedings cannot be taken lightly, in particular, the COMELECs failure to accord her the opportunity to question the nature and authenticity of the evidence submitted by the respondent Joseph Tan (Tan) as well as controverting evidence the petition cited. In fact, no less than COMELEC Chairman Sixto Brillantes Jr., echoed this concern in his Dissenting Opinion from the May 14, 2013 Resolution of the COMELEC en banc. c. A third issue raised relates to the COMELECs imposition of a qualification for the position of congressman, other than those mentioned in the Constitution. The Courts Resolution glossed over this issue and did not touch it at all. For this reason, this Dissent will similarly refrain from discussing the issue, except to state that the issue raised touches on the Constitution and should have at least merited a passing mention by the Court in its immediate and outright dismissal of the petition. Second, unless the case is clearly and patently shown to be without basis and out of our sense of delicadeza (which we should have), the Court should at least hear and consider both sides before making a ruling that would favor the son of a Member of the Court. To reiterate, the COMELEC en banc ruling cancelling Reyes CoC means that: (1) Reyes CoC is void ab initio; (2) that she was never a valid candidate at all; and (3) all the votes in her favor are stray votes. Consequently, the remaining candidate would be declared the winner, as held in Aratea v. Commission on Elections10 Jalosjos, Jr. v. Commission on Elections11 and Maquiling v. Commission on Elections.12 Third, the majoritys holding that the jurisdiction of the HRET only begins after the candidate has assumed the office on June 30 is contrary to prevailing jurisprudence; in fact, it is a major retrogressive jurisprudential development that can emasculate the HRET. In making this kind of ruling, the Court should have at least undertaken a full-blown proceeding rather than simply declare the immediate and outright dismissal of the petition. Note in this regard that the majoritys jurisprudential ruling a. is contrary to the HRET rules. b. effectively allows the filing of any election protest or a petition for quo warranto only after the assumption to office by the candidate on June 30 at the earliest. In the context of the present case, any election protest protest or petition for quo warranto filed on or after June 30 would be declared patently out of time since the filing would be more than fifteen (15) days from Reyes proclamation on May 18, 2013. c. would affect all future proclamations since they cannot be earlier than 15 days counted from the June 30 constitutional cut-off for the assumption to office of the newly elected officials. III. THE ASSAILED COMELEC PETITION A. The Petition Before the COMELEC The present petition before this Court and its attachments show that on October 1, 2012, Reyes filed her CoC for the position of Representative for the lone district of Marinduque. On October 10, 2012, Tan filed with the COMELEC a petition to deny due course or to cancel Reyes CoC. Tan alleged that Reyes committed material misrepresentations in her CoC, specifically: (1) that she is a resident of Brgy. Lupac, Boac Marinduque when in truth she is a resident of 135 J.P. Rizal, Brgy. Milagrosa Quezon City or Bauan Batangas following the residence of her husband; (2) that she is a natural-born Filipino citizen; (3) that she is not a permanent resident of, or an immigrant to, a foreign country; (4) that her date of birth is July 3, 1964, when in truth it is July 3, 1958; (5) that her civil status is single; and (6) that she is eligible for the office she seeks to be elected to. B. The COMELEC Proceedings In her Answer, Reyes averred that while she is publicly known to be the wife of Rep. Hermilando Mandanas of Bauan, Batangas, the truth of the matter is that they are not legally married; thus, Mandanas residence cannot be attributed to her. She also countered that the evidence presented by Tan does not support the allegation that she is a permanent resident or a citizen of the United States. With respect to her birth date, her birth certificate issued by the NSO showed that it was on July 3, 1964. At any rate, Reyes contended that the representations as to her civil status and date of birth are not material so as to warrant the cancellation of her CoC. On February 8, 2013, Tan filed a Manifestation with Motion to Admit Newly Discovered Evidence and Amended List of Exhibits consisting of, among others, a copy of an article published online on January 8, 2013 entitled "Seeking and Finding the Truth about Regina O. Reyes." This article provided a database record from the Bureau of Immigration and Deportation (BID) indicating that Reyes is an American citizen and a holder of a US passport that she has been using since 2005. Tan also submitted a photocopy of a Certification of Travel Records from the BID, which showed that Reyes holds a US passport No. 306278853. Based on these pieces of evidence and the fact that

Reyes failed to take an Oath of Allegiance and execute an Affidavit of Renunciation of her American citizenship pursuant to Republic Act No. 9225 (RA 9225), Tan argued that Reyes was ineligible to run for the position of Representative and thus, her CoC should be cancelled. C. The COMELEC First Division Ruling On March 27, 2013, the COMELEC First Division issued a Resolution granting the petition and cancelling Reyes CoC. On the alleged misrepresentations in Reyes CoC with respect to her civil status and birth date, the COMELEC First Division held that these are not material representations that could affect her qualifications or eligibility, thus cancellation of CoC on these grounds is not warranted. The COMELEC First Division, however, found that Reyes committed false material representation with respect to her citizenship and residency. Based on the newly discovered evidence submitted by Tan, the COMELEC First Division found that Reyes was a holder of a US passport, which she continued to use until June 30, 2012; she also failed to establish that she had applied for repatriation under RA 9225 by taking the required Oath of Allegiance and executing an Affidavit of Renunciation of her American Citizenship. Based on these findings, the COMELEC First Division ruled the Reyes remains to be an American citizen, and thus, is ineligible to run and hold any elective office. On the issue of her residency in Brgy. Lupac, Boac, Marinduque, the COMELEC First Division found that Reyes did not regain her domicile of origin in Boac, Marinduque after she lost it when she became a naturalized US citizen; that Reyes had not shown that she had re-acquired her Filipino citizenship under RA 9225, there being no proof that she had renounced her US citizenship; thus, she has not abandoned her domicile of choice in America. Citing Japzon v. Commission on Elections,13 the COMELEC First Division held that a Filipino citizen who becomes naturalized elsewhere effectively abandons his domicile of origin. Upon re-acquisition of Filipino citizenship, he must still show that he chose to establish his domicile in the Philippines by positive acts and the period of his residency shall be counted from the time he made it his domicile of choice. Finally, the COMELEC First Division disregarded Reyes proof that she met the one-year residency requirement when she served as Provincial Administrator of the province of Marinduque from January 18, 2011 to July 13, 2011 as it is not sufficient to satisfy the one-year residency requirement. On April 8, 2013, Reyes filed her motion for reconsideration. Attached to the motion were an Affidavit of Renunciation of Foreign Citizenship dated September 21, 2012 and a Voter Certification in Boac, Marinduque dated April 17, 2012. In her Motion, Reyes admitted that she was married to an American citizen named Saturnino S. Ador Dionisio in 1997 and thus, she acquired dual citizenship through marriage to an American citizen. D. The COMELEC en banc Ruling On May 14, 2013, the COMELEC en banc promulgated its Resolution denying Reyes motion for reconsideration and affirming the ruling of the COMELEC First Division on the ground that the formers motion was a mere rehash of the arguments she raised against the First Division ruling. D-a. Commissioner Lims Concurring Opinion Commissioner Lim concurred in the result and held that Reyes failed to comply with twin requirements of RA 9225; she belatedly filed her Affidavit of Renunciation of Foreign Citizenship but failed to submit an Oath of Allegiance. She also failed to prove that she complied with the one-year residency requirement for lack of evidence of any overt or positive act that she had established and maintained her residency in Boac, Marinduque. D-b. Chairman Brillantes Dissenting Opinion Chairman Brillantes dissented from the majority and held that Tan failed to offer substantial evidence to prove that Reyes lost her Filipino citizenship. He noted that the internet article by a certain Eli Obligacion showing that Reyes used a US passport on June 30, 2012 is hearsay while the purported copy of the BID certification is merely a photocopy and not even a certified true copy of the original, thus similarly inadmissible as evidence. Chairman Brillantes also emphasized that a petition to deny due course under Section 78 of the Omnibus Election Code (OEC) cannot be a pre-election substitute for a quo warranto proceeding. Under prevailing laws, there remains to be no pre-election legal remedy to question the eligibility or lack of qualification of a candidate. Chairman Brillantes was of the view that a petition to deny due course tackles exclusively the issue of deliberate misrepresentation over a qualification, and not the lack of qualification per se which is the proper subject of a quo warranto proceeding. Finally, he opined that the issues pertaining to Reyes residence and citizenship requires exhaustive presentation and examination of evidence that are best addressed in a full blown quo warranto proceeding rather than the summary proceedings in the present case. IV. EVENTS SUBSEQUENT TO THE COMELEC DECISION A. On May 18, 2013, the Marinduque PBOC proclaimed Reyes as the duly elected member of the House of Representatives for Marinduque, having garnered the highest number of votes in the total of 52, 209 votes.

B. On June 5, 2013, the COMELEC en banc issued a Certificate of Finality declaring its May 14, 2013 Resolution final and executory citing paragraph b, Section 13, Rule 18 of the COMELEC Rules of Procedure in relation to paragraph 2, Section 8, of Resolution No. 9523 which provides that a decision or resolution of the Commission en banc in Special Actions and Special Cases shall become final and executory five (5) days after its promulgation unless a restraining order is issued by the Supreme Court. C. On June 7, 2013, Reyes took her oath of office before House Speaker Rep. Feliciano R. Belmonte, Jr. V. THE PETITION BEFORE THIS COURT A. Positions and Arguments In support of her petition before this Court, Reyes submits the following positions and arguments: (1) COMELEC has been ousted of jurisdiction when she was duly proclaimed the winner for the position of Representative of the lone district of Marinduque; (2) COMELEC violated her right to due process when it took cognizance of the documents submitted by Tan that were not testified to, offered and admitted in evidence without giving her the opportunity to question the authenticity of these documents as well as present controverting evidence; (3) COMELEC gravely erred when it declared that petitioner is not a Filipino citizen and did not meet the one year residency requirement despite the finding that he assumed and held office as provincial administrator; (4) COMELEC gravely abused its discretion in enforcing the provision of RA 9225 insofar as it adds to the qualifications of Members of the House of Representatives other than those enumerated in the Constitution. B. The Issues Raised As presented to this Court, the petition raised the following issues: (1) Whether or not the COMELEC is ousted of jurisdiction over the petition who is a duly proclaimed winner and who has already taken her oath of office for the position of Member, House of Representatives? (2) Whether or not the COMELEC gravely abused its discretion when it took cognizance of Tans newly discovered evidence without having been testified to, as well as offered and admitted in evidence, in violation of Reyes right to due process? (3) Whether or not the COMELEC gravely abused its discretion when it declared that Reyes is not a Filipino citizen and did not meet the one-year residency requirement for the position of Member of the House of Representatives? (4) Whether or not COMELEC gravely abused its discretion when, by enforcing RA 9225, it imposed additional qualifications to the qualifications of a Member of the House of Representatives under Section 6, Art. VI of the Constitution? How the public respondent COMELEC views the issues presented, particularly the question of jurisdiction and grave abuse of discretion are presently unknown elements in these proceedings as the COMELEC has not been heard on the case. To be sure, it should have a say, as a named respondent, especially on the matter of jurisdiction. VI. THE MAJORITY RULING On the issue of the COMELECs jurisdiction Without the benefit of full blown arguments by the parties, the majority ruling ruled on the merits of the jurisdictional issue and held that the COMELEC has jurisdiction for the following reasons: First, the HRET does not acquire jurisdiction over the issue of Reyes qualifications and the assailed C OMELEC Resolutions unless a petition is filed with the tribunal. Second, the jurisdiction of the HRET begins only after the candidate is considered a Member of the House of Representatives. A candidate is considered a Member of the House of Representatives with the concurrence of three requisites: (a) a valid proclamation; (b) a proper oath; and (c) assumption of office. It went on to state that Reyes cannot be considered a Member of the House of Representatives because she had not yet assumed office; she can only do so on June 30, 2013. It pointed out, too, that before Reyes proclamation on May 18, 2013, the COMELEC en banc had already finally disposed of the issue of Reyes US citizenship and lack of

residency; thus, there was no longer any pending case at that time. In these lights, it held that COMELEC continued to have jurisdiction. On the issue of admissibility of the evidence presented and due process The majority emphasized that the COMELEC is not strictly bound to adhere to the technical rules of evidence. Since the proceedings to deny due course or to cancel a CoC are summary in nature, then the newly discovered evidence was properly admitted by the COMELEC. Also, there was no denial of due process since Reyes was given every opportunity to argue her case before the COMELEC. On the issue of citizenship Again ruling on the merits, the majority upheld the COMELECs finding that based on the Tans newly discovered evidence, Reyes is an American citizen and thus is ineligible to run and hold any elective office. The majority likewise held that the burden of proof had been shifted to Reyes to prove that: (1) she is a natural-born Filipino citizen, and that (2) she re-acquired such status by properly complying with the requirements of RA 9225, and that Reyes had failed to substantiate that she is a natural born Filipino citizen and complied with the requirements of RA 9925. It emphasized that Reyes inexplicably failed to submit an Oath of Allegiance despite belatedly filing an Oath of Renunciation and that her oath that she took in connection with her appointment as Provincial Administrator does not suffice to satisfy the requirements of RA 9225. On the issue of residency The majority similarly affirmed the COMELECs ruling that Reyes had not abandoned her domicile of choice in the United States and thus did not satisfy the one-year Philippine residency requirement. It held that Reyes effectively abandoned her domicile of origin in Boac, Marinduque when she became a naturalized US citizen. In the absence of proof that she had renounced her American citizenship, she cannot be considered to have abandoned her domicile of choice in the US. The majority also noted that Reyes service as Provincial Administrator from January 18, 2011 to July 13, 2011 is not sufficient to prove her one-year residency in Boac, Marinduque. VII. COMMENTS ON THE MAJORITYS RULING The majoritys unusual approach and strained rulings that already touched on the merits of substantial issues raised should, at the very least, not be allowed to stand without comments. I call these "comments" as a "refutation" implies a consideration on the merits of properly submitted and debated issues, which did not happen in this case. A. No basis exists to DISMISS the petition outright. Section 6 of Rule 64 of the Rules of Court14 merely requires that the petition be sufficient in form and substance to justify an order from the Court to act on the petition and to require the respondents to file their comments. The same rule also provides that the Court may dismiss the petition outright (as the majority did in the present case) if it was filed manifestly for delay or if the questions raised are too unsubstantial to warrant further proceedings. In the present case, the petition is indisputably sufficient in form and substance; no issue on this point was even raised. Thus, the question before the Court if Rule 64, Section 6 were to be followed is whether the issues raised by Reyes were too unsubstantial to warrant further proceedings. I submit that the issues raised cannot be unsubstantial as they involve crucial issues of jurisdiction and due process. The due process issue, of course, pertained to the assailed COMELEC ruling that admittedly can be evaluated based on the records. The matter of evaluation, however, is not simply a matter of doing it; it is the very problem that I raise because it must be a meaningful one that fully appreciates the parties positions, particularly in a situation where the petition raised arguments that are not without their merits. In this situation, the Court cannot simply go through the motions of evaluation and then simply strike out the petitioners positions. The Courts role as adjudicator and the demands of basic fairness require that we should fully hear the parties and rule based on our appreciation of the merits of their positions in light of what the law and established jurisprudence require. a. The Due Process Component The determination of the merits of the petitioners claim point us, at the very least, to the need to consider whether evidence attributed to a person who is not before the Court and whose statement cannot be confirmed for the genuineness, accuracy and truth of the basic fact sought to be established in the case, should be taken as "truth." Even casting technical rules of evidence aside, common sense and the minimum sense of fairness dictate that an article in the internet cannot simply be taken to be evidence of the truth of what it says, nor can photocopies of documents not shown to be genuine be taken as proof of the "truth." To accept these materials as statements of "truth" is to be partisan and to deny the petitioner her right to both procedural and substantive due process. Again, at the very least, further inquiry should have been made before there was the judgment.

Some, to be sure, may label the denial of further inquiry to lack of prudence; others, not so charitably minded, may however refer to this as partisanship. b. The Jurisdictional Component. The jurisdictional component of the petition is interesting because it involved matters that were not covered by the assailed COMELEC rulings for the simple reason that they were intervening events that transpired outside (although related with) the assailed rulings. In fact, they involved questions of fact and law separate from those of the assailed COMELEC rulings. Yet, the majority, in its rush to judgment, lumped them together with the assailed rulings under the dismissive phrase "did not commit any grave abuse of discretion" in the dispositive portion of its ruling. Such was the haste the majority exhibited in the desire to pronounce swift and dismissive judgment. I can only surmise that the majority might have considered the jurisdictional issues raised "too insubstantial to warrant further proceedings." Is this still lack of prudence? Reyes proclamation divested the COMELEC of jurisdiction over her qualifications in favor of the HRET The profound effect of the majoritys ruling on HRET jurisdiction and on jurisprudence render comments on this point obligatory, if only to show that the matter is not insubstantial and should further be explored by the Court. The majority held that the COMELEC still has jurisdiction because the HRET does not acquire jurisdiction over the issue of the petitioners qualifications, as well as over the assailed resolutions unless a petition is duly filed. The ponencia emphasizes that Reyes has not averred that she has filed such action. This line of thought is, to say the least, confusing, particularly on the point of why Reyes who has garnered the majority of the votes cast in Marinduque, who has been proclaimed pursuant to this electoral mandate, and who has since taken her oath of office, would file a petition, either of protest or quo warranto, before the HRET. Why she would file a petition for certiorari before this Court may be easier to understand the COMELEC, despite her proclamation and oath, has issued an order mandating her disqualification executory; she may merely want to halt the enforcement of this COMELEC order with the claim that the arena for her election and qualification has shifted now to the HRET and is no longer with the COMELEC. In any case, to stick to election law basics, the matter of jurisdiction between the COMELEC and the HRET has always constituted a dichotomy; the relationship between the COMELEC and the HRET in terms of jurisdiction is not an appellate one but is mutually exclusive. This mutually exclusive jurisdictional relationship is, as a rule, sequential. This means that the COMELECs jurisdiction ends when the HRETs jurisdiction begins. Thus, there is no point in time, when a vacuum in jurisdiction would exist involving congressional candidates. This jurisdiction, of course, refers to jurisdiction over the subject matter, which no less than the Philippine Constitution governs. Under Section 17, Article VI, the subject matter of HRETs jurisdiction is the "election, returns, and qualifications of Members of the House of Representatives." Where one jurisdiction ends and the other begins, is a matter that jurisprudence appears to have settled, but is nevertheless an issue that the Court should perhaps continue to examine and re-examine because of the permutation of possible obtaining situations which, to my mind, translates to the existence of a critical issue that should be ventilated before this Court if it is to make any definitive ruling on any given situation. I submit on this point that the proclamation of the winning candidate is the operative fact that triggers the jurisdiction of the HRET over election contests relating to the winning candidates election, return and qualifications. In other words, the proclamation of a winning candidate divests the COMELEC of its jurisdiction over matters pending before it at the time of the proclamation and the party questioning the qualifications of the winning candidate should now present his or her case in a proper proceeding (i.e. quo warranto) before the HRET who, by constitutional mandate, has the sole jurisdiction to hear and decide cases involving the election, returns and qualification of members of the House of Representatives. The Court has interestingly rendered various rulings on the points which all point to the statement above. In Limkaichong v. Comelec,15 the Court pointedly held that the proclamation of a winning candidate divests the COMELEC of its jurisdiction over matters pending before it at the time of the proclamation.16 The Court speaking through no less than Associate Justice Roberto A. Abad in the recent case of Jalosjos, Jr. v Commission on Elections17 held that the settled rule is that "the proclamation of a congressional candidate following the election divests COMELEC of jurisdiction over disputes relating to the election, returns, and qualifications of the proclaimed Representative in favor of the HRET"18 Based on these considerations, it appears clear that any ruling from this Court as the majority ruled that the COMELEC retains jurisdiction over disputes relating to the election, returns and qualifications of the proclaimed representative who has been proclaimed but not yet assumed office is a major retrogressive jurisprudential development, in fact, a complete turnaround from the Courts prevailing jurisprudence on the matter; such rule if it becomes established can very well emasculate the HRET.

Thus, the Court should now fully hear this matter, instead of dismissively ruling on a new petition where the respondent side has not been fully heard. The ponencias holding on the COMELECs jurisdiction vis--vis the HRET is inconsistent with the HRET Rules The view that the proclamation of the winning candidate is the operative fact that triggers the jurisdiction of the HRET is also supported by the HRET Rules. They state: RULE 14. Jurisdiction. The Tribunal is the sole judge of all contests relating to the election, returns, and qualifications of the Members of the House of Representatives. RULE 15. How Initiated. An election contest is initiated by the filing of a verified petition of protest or a verified petition for quo warranto against a Member of the House of Representatives. An election protest shall not include a petition for quo warranto. Neither shall a petition for quo warranto include an election protest. RULE 16. Election Protest. A verified petition contesting the election or returns of any Member of the House of Representatives shall be filed by any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within fifteen (15) days after the proclamation of the winner. The party filing the protest shall be designated as the protestant while the adverse party shall be known as the protestee. x x x RULE 17. Quo Warranto. A verified petition for quo warranto contesting the election of a Member of the House of Representatives on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall be filed by any registered voter of the district concerned within fifteen (15) days from the date of the proclamation of the winner. The party filing the petition shall be designated as the petitioner while the adverse party shall be known as the respondent. Based on the above Rules, it appears clear that as far as the HRET is concerned, the proclamation of the winner in the congressional elections serves as the reckoning point as well as the trigger that brings any contests relating to his or her election, return and qualifications within its sole and exclusive jurisdiction. In the context of the present case, by holding that the COMELEC retained jurisdiction (because Reyes, although a proclaimed winner, has not yet assumed office), the majority effectively emasculates the HRET of its jurisdiction as it allows the filing of an election protest or a petition for quo warranto only after the assumption to office by the candidate (i.e, on June 30 in the usual case). To illustrate using the dates of the present case, any election protest or a petition for quo warranto filed after June 30 or more than fifteen (15) days from Reyes proclamation on May 18, 2013, shall certainly be dismissed outright by the HRET for having been filed out of time under the HRET rules. Did the COMELEC gravely abuse its discretion when it declared its May 14, 2013 Resolution final and executory? By the petitioners theory, the COMELEC en bancs May 14, 2013 Resolution (cancelling Reyes CoC) did not attain finality because Reyes proclamation on May 18, 2013 divested the COMELEC of its jurisdiction over matters pending before it relating to Reyes eligibility. Two material records are critical on this point. First, the fact of proclamation on May 18, 2013 which came one (1) day ahead of the May 19, 2013 deadline for the finality of the May 14, 2013 Resolution pursuant to the COMELEC Rules of Procedure. The second is the COMELEC order of June 5, 2013 which declared its resolution of May 14, 2013 final and executory. How these instruments will co-exist and be given weight in relation with one another is a matter that, at this point and in the absence of research, deliberation, debate and discussion may not be easily be made. The Court, to be sure, would want to hear the HRET, the COMELEC and the Office of the Solicitor General, on this point. Of course, this hearing and debate will not take place under the hasty dismissive action the majority made. Did the COMELEC gravely abuse its discretion in the appreciation and evaluation of the evidence leading it to erroneously conclude that Reyes is not a natural born Filipino citizen and that she had abandoned and lost her domicile of origin when she became a naturalized American citizen As a general rule, the Court does not ordinarily review the COMELECs appreciation and evaluation of evidence. However, exceptions to this rule have been established and consistently recognized, among others, when the COMELEC's appreciation and evaluation of evidence are so grossly unreasonable as to turn into an error of jurisdiction. In these instances, the Court is compelled by its bounden constitutional duty to intervene and correct the COMELEC's error.19 It is also basic in the law of evidence that one who alleges a fact has the burden of proving it. In administrative cases, the quantum of proof required is substantial evidence.20 In the present case, the majority obviously believed, together with the COMELEC, that Tan did overcome this burden and that his documentary evidence he submitted established that Reyes is not a Filipino citizen. A major clash between the parties exists, of course, on this point as Reyes, as expressed in her petition, is of the completely opposite view. Even a quick look at Tans evidence, however, indicates that Reyes view is not without its merits and should not simply be dismissively set aside.

First, Tan submitted an article published online (blog article) written by one Eli J. Obligacion (Obligacion) entitled "Seeking and Finding the Truth About Regina O. Reyes." This printed blog article stated that the author had obtained records from the BID stating that Reyes is an American citizen; that she is the holder of a US passport and that she has been using the same since 2005. How the law on evidence would characterize Obligacion's blog article or, for that matter, any similar newspaper article, is not hard for a law student answering the Bar exam to tackle: the article is double hearsay or hearsay evidence that is twice removed from being admissible as it was offered to prove its contents (that Reyes is an American citizen) without any other competent and credible evidence to corroborate them. Separately of course from this consideration of admissibility is the question of probative value. On top of these underlying considerations is the direct and frontal question: did the COMELEC gravely abuse its discretion when it relied on this piece of evidence to conclude that Reyes is not a Filipino citizen? Second, Tan also submitted a photocopy of a "certification" issued by one Simeon L. Sanchez of the BID showing the travel records of Reyes from February 15, 2000 to June 30, 2012 and that she is a holder of US Passport No. 306278853. This photocopy also indicates in some entries that Reyes is an American while other entries denote that she is Filipino. The same questions of admissibility and probative value of evidence arise, together with the direct query on the characterization of the COMELEC action since the COMELEC concluded on the basis of these pieces of evidence that Reyes is not a Filipino citizen because it is not only incompetent but also lacks probative value as evidence. Contributory to the possible answer is the ruling of this Court that a "certification" is not a certified copy and is not a document that proves that a party is not a Filipino citizen.21 Interestingly, in its March 27, 2013 Resolution that the petitioner now also assails, the COMELEC First Division ruled: Due to petitioners submission of newly-discovered evidence thru a Manifestation dated February 7, 2013, however, establishing the fact that respondent is a holder of an American passport which she continues to use until June 30, 2012, petitioner was able to substantiate his allegations. The burden now shifts to respondent to present substantial evidence to prove otherwise. This, the respondent utterly failed to do, leading to the conclusion inevitable that respondent falsely misrepresented in her CoC that she is a natural-born Filipino citizen. Unless and until she can establish that she had availed of the privileges of RA 9225 by becoming a dual Filipino-American citizen, and thereafter, made a valid sworn renunciation of her American citizenship, she remains to be an American citizen and is, therefore, ineligible to run for and hold any elective public office in the Philippines.22 This ruling, undeniably, opens for Reyes the argument that in the absence of sufficient proof (i.e, other than a photocopy of a "certification") that she is not a natural born Filipino citizen, no burden of evidence shifts to her to prove anything, particularly the fact that she is not an American citizen. Considering that Tan might have also failed to prove by substantial evidence his allegation that Reyes is an American citizen, the burden of evidence also cannot be shifted to the latter to prove that she had availed of the privileges of RA 9225 in order to re-acquire her status as a natural born Filipino citizen. It ought to be considered, too, that in the absence of sufficient proof that Reyes lost her Filipino citizenship, the twin requirements under RA 9225 for re-acquisition of Filipino citizenship should not apply to her. Of course, Reyes admitted in her MR before the COMELEC that she is married to an American citizen. This admission, however, leads only to further arguments on how her admitted marriage affected her citizenship. Jurisprudence is not lacking on this point as in Cordora v. Comelec,23 the Court held that the twin requirements of RA 9225 does not apply to a candidate who is a natural born Filipino citizen who did not subsequently become a naturalized citizen of another country, viz.: We have to consider the present case in consonance with our rulings in Mercado v. Manzano Valles v. COMELEC, and AASJS v. Datumanong. Mercado and Valles involve similar operative facts as the present case. Manzano and Valles, like Tambunting, possessed dual citizenship by the circumstances of their birth. Manzano was born to Filipino parents in the United States which follows the doctrine of jus soli. Valles was born to an Australian mother and a Filipino father in Australia. Our rulings in Manzano and Valles stated that dual citizenship is different from dual allegiance both by cause and, for those desiring to run for public office, by effect. Dual citizenship is involuntary and arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. Thus, like any other natural-born Filipino, it is enough for a person with dual citizenship who seeks public office to file his certificate of candidacy and swear to the oath of allegiance contained therein. Dual allegiance, on the other hand, is brought about by the individuals active participation in the naturalization process. AASJS states that, under R.A. No. 9225, a Filipino who becomes a naturalized citizen of another country is allowed to retain his Filipino citizenship by swearing to the supreme authority of the Republic of the Philippines. The act of taking an oath of allegiance is an implicit renunciation of a naturalized citizens foreign citizenship. R.A. No. 9225, or the Citizenship Retention and Reacquisition Act of 2003, was enacted years after the promulgation of Manzano and Valles. The oath found in Section 3 of R.A. No. 9225 reads as follows:

I __________ , solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion. In Sections 2 and 3 of R.A. No. 9225, the framers were not concerned with dual citizenship per se, but with the status of naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Section 5(3) of R.A. No. 9225 states that naturalized citizens who reacquire Filipino citizenship and desire to run for elective public office in the Philippines shall "meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of filing the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath" aside from the oath of allegiance prescribed in Section 3 of R.A. No. 9225. The twin requirements of swearing to an Oath of Allegiance and executing a Renunciation of Foreign Citizenship served as the bases for our recent rulings in Jacot v. Dal and COMELEC, Velasco v. COMELEC, and Japzon v. COMELEC, all of which involve natural-born Filipinos who later became naturalized citizens of another country and thereafter ran for elective office in the Philippines. In the present case, Tambunting, a natural-born Filipino, did not subsequently become a naturalized citizen of another country. Hence, the twin requirements in R.A. No. 9225 do not apply to him. As to the issue of Reyes residency in Boac, Marinduque, the COMELEC First Division as affirmed by the COMELEC en banc held: Accordingly, the more appropriate issue is whether respondent had regained her domicile of origin in the Municipality of Boac, Marinduque after she lost the same when she became a naturalized American citizen. xxxx Thus, a Filipino citizen who becomes naturalized elsewhere effectively abandons his domicile of origin. Upon reacquisition of Filipino citizenship pursuant to RA9225, he must still show that he chose to establish his domicile in the Philippines through positive acts, and the period of his residency shall be counted from the time he made it his domicile of choice. In this case, there is no showing that whatsoever that respondent had already re-acquired her Filipino citizenship pursuant to RA 9225 so as to conclude that she has regained her domicile in the Philippines. There being no proof that respondent had renounced her American citizenship, it follows that she has not abandoned her domicile of choice in the USA. The only proof presented by respondent to show that she has met the one-year residency requirement of the law and never abandoned her domicile of origin in Boac, Marinduque is her claim that she served as Provincial Administrator of the province from January 18, 2011 to July 13, 2011. But such fact alone is not sufficient to prove her one-year residency. For, respondent has never regained her domicile in Marinduque as she remains to be an American citizen. No amount of her stay in the said locality can substitute the fact that she has not abandoned her domicile of choice in the USA.24 This COMELEC action again opens questions about its appreciation and evaluation of the evidence and whether it overstepped the limits of its discretion to the point of being grossly unreasonable, if indeed the above-cited findings and conclusions have no basis in fact and in law. To begin with, the evidence submitted by Tan, even assuming that it is admissible, arguably does not prove that Reyes was a naturalized American citizen. At best, the submitted evidence could only show that Reyes was the holder of a US passport. In Aznar v. Comelec,25 the Court ruled that the mere fact that respondent Osmena was a holder of a certificate stating that he is an American did not mean that he is no longer a Filipino, and that an application for an alien certificate of registration did not amount to a renunciation of his Philippine citizenship. In the present case, the fact that Reyes is a holder of a US passport does not portend that she is no longer a natural born Filipino citizen or that she had renounced her Philippine citizenship. In addition, how the COMELEC arrived at a conclusion that Reyes is naturalized American citizen can be seen as baffling as it did not appear to have provided any factual basis for this conclusion. VIII. CONCLUSIONS All told, the COMELEC does not appear to have an airtight case based on substantial evidence on the citizenship and residence issues, and much less a similar case on the jurisdictional issue, to justify a VERY PROMPT OUTRIGHT DISMISSAL ACTION from this Court. Bolstering this view is that petitioner Reyes is not lacking in arguably meritorious positions to support her cause, even if only to the extent of being fully heard by this Court. If this Court is indeed SERIOUS IN ADMINISTERING JUSTICE or at least to BE SEEN TO BE ADMINISTERING JUSTICE in the way described in the speeches of many a Justice of this Court, it should not deliver the kind of hasty and imprudent action that it did in this case. The proper course of action, if the Court indeed honestly wants to

achieve this objective in the present case, is to require the COMELEC to COMMENT on the petition and to decide matters from that point. ARTURO D. BRION Associate Justice

G.R. No. 199082

September 18, 2012

JOSE MIGUEL T. ARROYO, Petitioner, vs. DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON. LEILA DE LIMA, in her capacity as Secretary of the Department of Justice; HON. SIXTO BRILLANTES, .JR., in his capacity as Chairperson of the Commission on Elections; and the JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE and FACT-FINDING TEAM, Respondents. x-----------------------x G.R. No. 199085 BENJAMIN S. ABALOS, SR., Petitioner, vs. HON. LEILA DE LIMA, in her capacity as Secretary of Justice; HON. SIXTO S. BRILLANTES, JR., in his capacity as COMELEC Chairperson; RENE V. SARMIENTO, LUCENITO N. TAGLE, ARMANDO V. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S. LIM AND AUGUSTO C. LAGMAN, in their capacity as COMELEC COMMISSIONERS; CLARO A. ARELLANO, GEOUGE C. DEE, JACINTO G. ANG, ROMEO B. FORTES AND MICHAEL D. VILLARET, in their capacity as CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITEE ON THE 2004 AND 2007 ELECTION FRAUD,Respondents. x-----------------------x G.R. No.199118 GLORIA MACAPAGAL-ARROYO, Petitioner, vs. COMMISSION ON ELECTIONS, represented by Chairperson Sixto S. Brillantes, Jr., DEPARTMENT OF JUSTICE, represented by Secretary Leila M. De Lima, JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE, SENATOR AQUILINO M. PIMENTEL III, and DOJ-COMELEC FACT FINDING TEAM, Respondents. DECISION PERALTA, J.: The Court is vested with the constitutional mandate to resolve justiciable controversies by applying the rule of law with due deference to the right to due process, irrespective of the standing in society of the parties involved. It is an assurance that in this jurisdiction, the wheels of justice turn unimpeded by public opinion or clamor, but only for the ultimate end of giving each and every member of society his just due without distinction. Before the Court are three (3) consolidated petitions and supplemental petitions for Certiorari and Prohibition under Rule 65 of the Rules of Court filed by Jose Miguel T. Arroyo (Mike Arroyo) in G.R. No. 199082, Benjamin S. Abalos, Sr. (Abalos) in G.R. No. 199085 and Gloria Macapagal Arroyo (GMA) in G.R. No. 199118 assailing the following: (1) Commission on Elections (Comelec) Resolution No. 9266 "In the Matter of the Commission on Elections and Department of Justice Joint Investigation on the Alleged Election Offenses Committed during the 2004 and 2007 Elections Pursuant to Law"1 dated August 2, 2011; (2) Joint Order No. 001-2011 (Joint Order) "Creating and Constituting a Joint DOJ-Comelec Preliminary Investigation Committee [Joint Committee] and Fact-Finding Team on the 2004 and 2007 National Elections Electoral Fraud and Manipulation Cases"2 dated August 15, 2011; (3) Rules of Procedure on the Conduct of Preliminary Investigation on the Alleged Election Fraud in the 2004 and 2007 National Elections (Joint Committee Rules of Procedure)3 dated August 23, 2011; and (4) Initial Report of the Fact-Finding Team dated October 20, 2011.4 The consolidated petitions and supplemental petitions likewise assail the validity of the proceedings undertaken pursuant to the aforesaid issuances. The Antecedents Acting on the discovery of alleged new evidence and the surfacing of new witnesses indicating the occurrence of massive electoral fraud and manipulation of election results in the 2004 and 2007 National Elections, on August 2, 2011, the Comelec issued Resolution No. 9266 approving the creation of a committee jointly with the Department of Justice (DOJ), which shall conduct preliminary investigation on the alleged election offenses and anomalies committed during the 2004 and 2007 elections.5 On August 4, 2011, the Secretary of Justice issued Department Order No. 6406 naming three (3) of its prosecutors to the Joint Committee.

On August 15, 2011, the Comelec and the DOJ issued Joint Order No. 001-2011 creating and constituting a Joint Committee and Fact-Finding Team on the 2004 and 2007 National Elections electoral fraud and manipulation cases. The Joint Committee and the Fact-Finding Team are composed of officials from the DOJ and the Comelec. Section 2 of the Joint Order lays down the mandate of the Joint Committee, to wit: Section 2. Mandate. The Committee shall conduct the necessary preliminary investigation on the basis of the evidence gathered and the charges recommended by the Fact-Finding Team created and referred to in Section 4 hereof. Resolutions finding probable cause for election offenses, defined and penalized under the Omnibus Election Code and other election laws shall be approved by the Comelec in accordance with the Comelec Rules of Procedure. For other offenses, or those not covered by the Omnibus Election Code and other election laws, the corresponding criminal information may be filed directly with the appropriate courts.7 The Fact-Finding Team,8 on the other hand, was created for the purpose of gathering real, documentary, and testimonial evidence which can be utilized in the preliminary investigation to be conducted by the Joint Committee. Its specific duties and functions as enumerated in Section 4 of the Joint Order are as follows: a) Gather and document reports, intelligence information, and investigative leads from official as well as unofficial sources and informants; b) Conduct interviews, record testimonies, take affidavits of witnesses, and collate material and relevant documentary evidence, such as, but not limited to, election documents used in the 2004 and 2007 national elections. For security reasons, or to protect the identities of informants, the Fact-Finding Team may conduct interviews or document testimonies discreetly; c) Assess and evaluate affidavits already executed and other documentary evidence submitted or may be submitted to the Fact-Finding Team and/or Committee; d) Identify the offenders, their offenses and the manner of their commission, individually or in conspiracy, and the provisions of election and general criminal laws violated, establish evidence for individual criminal and administrative liability and prosecution, and prepare the necessary documentation, such as complaints and charge sheets for the initiation of preliminary investigation proceedings against said individuals to be conducted by the Committee; e) Regularly submit to the Committee, the Secretary of Justice and the Chairman of the Comelec periodic reports and recommendations, supported by real, testimonial and documentary evidence, which may then serve as the Committees basis for immediately commencing appropriate preliminary investigation proceedings, as provided under Section 6 of this Joint Order; and f) Upon the termination of its investigation, make a full and final report to the Committee, the Secretary of Justice, and the Chairman of the Comelec.9 Pursuant to Section 710 of the Joint Order, on August 23, 2011, the Joint Committee promulgated its Rules of Procedure. The members of the Fact-Finding Team unanimously agreed that the subject of the Initial Report would be the electoral fraud and manipulation of election results allegedly committed during the May 14, 2007 elections. Thus, in its Initial Report11 dated October 20, 2011, the Fact-Finding Team concluded that manipulation of the results in the May 14, 2007 senatorial elections in the provinces of North and South Cotabato and Maguindanao were indeed perpetrated.12The Fact-Finding Team recommended that petitioner Abalos and ten (10) others13 be subjected to preliminary investigation for electoral sabotage for conspiring to manipulate the election results in North and South Cotabato. Twenty-six (26)14 persons, including petitioners GMA and Abalos, were likewise recommended for preliminary investigation for electoral sabotage for manipulating the election results in Maguindanao.15 Several persons were also recommended to be charged administratively, while others,16 including petitioner Mike Arroyo, were recommended to be subjected to further investigation.17 The case resulting from the investigation of the FactFinding Team was docketed as DOJ-Comelec Case No. 001-2011. Meanwhile, on October 17, 2011, Senator Aquilino Pimentel III (Senator Pimentel) filed a Complaint-Affidavit18 for Electoral Sabotage against petitioners and twelve others19 and several John Does and Jane Does. The case was docketed as DOJ-Comelec Case No. 002-2011. On October 24, 2011, the Joint Committee issued two subpoenas against petitioners in DOJ-Comelec Case Nos. 001-2011 and 002-2011.20 On November 3, 2011, petitioners, through counsel, appeared before the Joint Committee.21On that preliminary hearing, the Joint Committee consolidated the two DOJ-Comelec cases. Respondents therein were likewise ordered to submit their Counter-Affidavits by November 14, 2011.22 Thereafter, petitioners filed before the Court separate Petitions for Certiorari and Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction assailing the creation of the Joint Panel.23 The petitions were eventually consolidated.

On November 14, 2011, petitioner Mike Arroyo filed a Motion to Defer Proceedings24 before the Joint Committee, in view of the pendency of his petition before the Court. On the same day, petitioner GMA filed before the Joint Committee an Omnibus Motion Ad Cautelam25 to require Senator Pimentel to furnish her with documents referred to in his complaint-affidavit and for the production of election documents as basis for the charge of electoral sabotage. GMA contended that for the crime of electoral sabotage to be established, there is a need to present election documents allegedly tampered which resulted in the increase or decrease in the number of votes of local and national candidates.26 GMA prayed that she be allowed to file her counter-affidavit within ten (10) days from receipt of the requested documents.27 Petitioner Abalos, for his part, filed a Motion to Suspend Proceedings (Ex Abundante Ad Cautelam),28 in view of the pendency of his petition brought before the Court. In an Order29 dated November 15, 2011, the Joint Committee denied the aforesaid motions of petitioners. GMA subsequently filed a motion for reconsideration.30 On November 16, 2011, the Joint Committee promulgated a Joint Resolution which was later indorsed to the Comelec.31 On November 18, 2011, after conducting a special session, the Comelec en banc issued a Resolution32approving and adopting the Joint Resolution subject to modifications. The dispositive portion of the Comelec Resolution reads: WHEREFORE, premises considered, the Resolution of the Joint DOJ-COMELEC Preliminary Investigation Committee in DOJ-COMELEC Case No. 001-2011 and DOJ-COMELEC Case No. 002-2011, upon the recommendation of the COMELECs own representatives in the Committee, is hereby APPROVED and ADOPTED, subject to the following MODIFICATIONS: 1. That information/s for the crime of ELECTORAL SABOTAGE under Section 42 (b) of R.A. 9369, amending Section 27 (b) of R.A. 6646, be filed against GLORIA MACAPAGAL-ARROYO, BENJAMIN ABALOS, SR., LINTANG H. BEDOL, DATU ANDAL AMPATUAN, SR. and PETER REYES; 2. That the charges against MICHAEL C. ABAS, NICODEMO FERRER, REUBEN BASIAO, JAIME PAZ and NORIE K. UNAS be subjected to further investigation; 3. That the charges against JOSE MIGUEL T. ARROYO, BONG SERRANO, ALBERTO AGRA, ANDREI BON TAGUM, GABBY CLAUDIO, ROMY DAYDAY, JEREMY JAVIER, JOHN DOE a.k.a BUTCH, be DISMISSED for insufficiency of evidence to establish probable cause; 4. That the recommendation that ESTELITA B. ORBASE, ELIZA A. GASMIN, ELSA Z. ATINEN, SALIAO S. AMBA, MAGSAYSAY B. MOHAMAD, SALONGA K. EDZELA, RAGAH D. AYUNAN, SUSAN U. CANANBAN, RUSSAM H. MABANG, ASUNCION CORAZON P. RENIEDO, NENA A. ALID, MA. SUSAN L. ALBANO, ROHAIDA T. KHALID, ARAW M. CAO, JEEHAN S. NUR, ALICE A. LIM, NORIJEAN P. HANGKAL, CHRISTINA ROAN M. DALOPE, and MACEDA L. ABO be administratively charged be subjected to further review by this Commission to determine the appropriate charge/s that may be filed against them; 5. That the findings of lack of probable cause against LILIAN S. SUAN-RADAM and YOGIE G. MARTIRIZAR be REJECTED by reason of the pendency of their respective cases before the Regional Trial Court of Pasay (Branch 114) and this Commission for the same offense under consideration. In the higher interest of justice and by reason of manifest attempts to frustrate the governments right to prosecute and to obtain speedy disposition of the present case pending before the Commission, the Law Department and/or any COMELEC legal officers as may be authorized by this Commission is hereby ORDERED to IMMEDIATELY PREPARE and FILE the necessary Information/s before the appropriate court/s SO ORDERED.33 (Emphasis supplied.) On even date, pursuant to the above Resolution, the Comelecs Law Department filed with the Regional Trial Court (RTC), Pasay City, an Information against petitioner GMA, Governor Andal Ampatuan, Sr., and Atty. Lintang H. Bedol, for violation of Section 42 (b)(3) of Republic Act (R.A.) No. 9369, amending Section 27 (b) of R.A. No. 6646, docketed as Criminal Case No. RPSY-11-04432-CR.34 The case was raffled to Branch 112 and the corresponding Warrant of Arrest was issued which was served on GMA on the same day.35 On November 18, 2011, petitioner GMA filed with the RTC an Urgent Omnibus Motion Ad Cautelam36 with leave to allow the Joint Committee to resolve the motion for reconsideration filed by GMA, to defer issuance of a warrant of arrest and a Hold Departure Order, and to proceed to judicial determination of probable cause. She, likewise, filed with the Comelec a Motion to Vacate Ad Cautelam37 praying that its Resolution be vacated for being null and void. The RTC nonetheless issued a warrant for her arrest which was duly served. GMA thereafter filed a Motion for Bail which was granted. Issues In G.R. No. 199082, petitioner Arroyo relies on the following grounds:

A. THE CREATION OF THE JOINT COMMITTEE VIA THE JOINT ORDER IS AT WAR WITH THE DUE PROCESS AND EQUAL PROTECTION CLAUSE OF THE CONSTITUTION, HAVING BEEN CREATED WITH THE SOLE END IN VIEW OF INVESTIGATING AND PROSECUTING CERTAIN PERSONS AND INCIDENTS ONLY, SPECIFICALLY THOSE INVOLVING THE 2004 AND 2007 ELECTIONS TO THE EXCLUSION OF OTHERS, IN VIOLATION OF THE DOCTRINE IN BIRAOGO V. TRUTH COMMISSION AND COMPANION CASE. B. NO LAW OR RULE AUTHORIZES THE JOINT COMMITTEE TO CONDUCT PRELIMINARY INVESTIGATION. C. THE CREATION OF THE JOINT COMMITTEE, WHICH FUSES THE COMMISSION ON ELECTIONS A CONSTITUTIONALLY INDEPENDENT BODY - WITH THE DEPARTMENT OF JUSTICE A POLITICAL AGENT OF THE EXECUTIVE DEMOLISHES THE INDEPENDENCE OF THE COMMISSION ON ELECTIONS AS PROVIDED IN ARTICLE IX(A), SECTIONS 1 AND 2 AND IX(C) OF THE CONSTITUTION. D. IN VIEW OF THE NUMEROUS AND PERSISTENT PUBLIC PRONOUNCEMENTS OF THE PRESIDENT, HIS SPOKESPERSONS, THE HEADS OF THE DOJ AND THE COMELEC, AND MEMBERS OF THE JOINT COMMITTEE THAT CASES SHOULD BE FILED AGAINST PETITIONER AND HIS FAMILY AND ALLEGED ASSOCIATES BY THE END OF 2011, THE PROCEEDINGS THEREOF SHOULD BE ENJOINED FOR BEING PERSECUTORY, PURSUANT TO ALLADO V. DIOKNO AND RELATED CASES. E. THE CREATION AND CONSTITUTION OF THE JOINT COMMITTEE TRAMPLES UPON PETITIONERS RIGHT TO A FAIR PROCEEDING BY AN INDEPENDENT AND IMPARTIAL TRIBUNAL. F. THE COMELEC, AND SUBSEQUENTLY, THE RTC OF PASAY CITY, HAVE ASSUMED JURISDICTION OVER THE SUBJECT MATTER SOUGHT TO BE INVESTIGATED BY THE JOINT COMMITTEE, TO THE EXCLUSION OF ANY BODY, INCLUDING THE JOINT COMMITTEE.38 In G.R. No. 199085, petitioner Abalos raises the following issues: I. DOES JOINT ORDER NO. 001-2011, CREATING THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND PRELIMINARY INVESTIGATON COMMITTEE VIOLATE PETITIONERS CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAW? II. DID THE CONDUCT AND PROCEEDINGS OF THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND PRELIMINARY INVESTIGATION COMMITTEE VIOLATE PETITIONERS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW? III. DID THE DOJ AND COMELEC VIOLATE THE PRINCIPLE OF SEPARATION OF POWERS BY CREATING THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND PRELIMINARY INVESTIGATION COMMITTEE WHICH ENCROACHED UPON THE POWERS OF THE LEGISLATURE AND THE REGIONAL TRIAL COURT? IV. DOES THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND PRELIMINARY INVESTIGATION COMMITTEE HAVE THE POWER AND LEGAL AUTHORITY TO CONDUCT A PRELIMINARY INVESTIGATION OF THE SAME ELECTORAL SABOTAGE CASES WHICH THE COMELEC HAD ALREADY TAKEN COGNIZANCE OF?39 In G.R. No. 199118, petitioner GMA anchors her petition on the following grounds: I. THE EXECUTIVE DEPARTMENT, THROUGH THE DOJ, OSTENSIBLY ACTING "JOINTLY" WITH THE COMELEC, HAS ACTED BEYOND THE LIMITS OF THE CONSTITUTION, IN THAT IT HAS COMPROMISED THE INDEPENDENCE OF THE COMELEC. II. THE COMELEC HAS EFFECTIVELY ABDICATED ITS CONSTITUTIONAL MANDATE "TO INVESTIGATE AND, WHERE APPROPRIATE, PROSECUTE CASES OF VIOLATIONS OF ELECTION LAWS, INCLUDING ACTS OR OMISSIONS CONSTITUTING ELECTION FRAUDS, OFFENSES, AND MALPRACTICES" (ARTICLE IX-C, SECTION 26, 1987 CONSTITUTION OF THE REPUBLIC OF THE

PHILIPPINES) IN FAVOR OF THE EXECUTIVE DEPARTMENT, ACTING THROUGH RESPONDENT JUSTICE SECRETARY DE LIMA. III. DOJ-COMELEC JOINT ORDER NO. 001-2011 AND THE JOINT COMMITTEE RULES HAVE NOT BEEN PUBLISHED PURSUANT TO TAADA V. TUVERA, G.R. No. L-63915 (29 DECEMBER 1986). AFTER ALL, AS THE HONORABLE COURT LIKEWISE DECLARED IN REPUBLIC V. PILIPINAS SHELL PETROLEUM CORPORATION, G.R. No. 173918 (08 APRIL 2008), (SIC)40 We deferred the resolution of petitioners Motion for the Issuance of a TRO and, instead, required the respondents to comment on the petitions.41 We likewise scheduled the consolidated cases for oral argument for which the parties were directed to limit their respective discussions to the following issues: I. Whether or not Joint Order No. 001-2011 "Creating and Constituting a Joint DOJ-COMELEC Preliminary Investigation Committee and Fact-Finding Team on the 2004 and 2007 National Elections Electoral Fraud and Manipulation Cases" is constitutional in light of the following: A. The due process clause of the 1987 Constitution B. The equal protection clause of the 1987 Constitution C. The principle of separation of powers D. The independence of the COMELEC as a constitutional body II. Whether or not the COMELEC has jurisdiction under the law to conduct preliminary investigation jointly with the DOJ. A. Whether or not due process was observed by the Joint DOJ-COMELEC Fact-Finding Team and Preliminary Investigation Committee, and the COMELEC in the conduct of the preliminary investigation and approval of the Joint Panels Resolution.42 The Court, thereafter, required the parties to submit their respective Memoranda.43 The Courts Ruling Procedural Issues Respondents claim that Mike Arroyos petition is moot and that of GMA is moot and academic. They explain that the Mike Arroyo petition presents no actual controversy that necessitates the exercise by the Court of its power of judicial review, considering that he was not among those indicted for electoral sabotage in the 2007 national elections as the Comelec dismissed the case against him for insufficiency of evidence.44 Anent the 2004 national elections, the Fact-Finding Team is yet to complete its investigation so Mike Arroyos apprehensions are merely speculative and anticipatory.45 As to the GMA petition, respondents aver that any judgment of the Court will have no practical legal effect because an Information has already been filed against her in Branch 112, RTC of Pasay City.46 With the filing of the Information, the RTC has already acquired jurisdiction over the case, including all issues relating to the constitutionality or legality of her preliminary investigation.47 Respondents also claim that the issues relating to the constitutionality and validity of the conduct of the preliminary investigation of GMA are best left to the trial court, considering that it involves questions of fact.48 Respondents add that considering that the RTC has concurrent jurisdiction to determine a constitutional issue, it will be practical for the Court to allow the RTC to determine the constitutional issues in this case.49 We do not agree. Mootness It cannot be gainsaid that for a court to exercise its power of adjudication, there must be an actual case or controversy, that is, one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution.50 The case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice.51 A case becomes moot and academic when it ceases to present a justiciable controversy so that a declaration on the issue would be of no practical use or value.52 However, a case should not be dismissed simply because one of the issues raised therein had become moot and academic by the onset of a supervening event, whether intended or incidental, if there are other causes which need to be resolved after trial.53

Here, the consolidated cases are not rendered moot and academic by the promulgation of the Joint Resolution by the Joint Committee and the approval thereof by the Comelec. It must be recalled that the main issues in the three petitions before us are the constitutionality and legality of the creation of the Joint Committee and the Fact-Finding Team as well as the proceedings undertaken pursuant thereto. The assailed Joint Order specifically provides that the Joint Committee was created for purposes of investigating the alleged massive electoral fraud during the 2004 and 2007 national elections. However, in the Fact-Finding Teams Initial Report, the team specifically agreed that the report would focus on the irregularities during the 2007 elections. Also, in its November 18, 2011 Resolution, the Comelec, while directing the filing of information against petitioners Abalos and GMA, ordered that further investigations be conducted against the other respondents therein. Apparently, the Fact-Finding Teams and Joint Committees respective mandates have not been fulfilled and they are, therefore, bound to continue discharging their duties set forth in the assailed Joint Order. Moreover, petitioners question the validity of the proceedings undertaken by the Fact-Finding Team and the Joint Committee leading to the filing of information, on constitutional grounds. We are not, therefore, barred from deciding on the petitions simply by the occurrence of the supervening events of filing an information and dismissal of the charges. Jurisdiction over the validity of the conduct of the preliminary investigation This is not the first time that the Court is confronted with the issue of jurisdiction to conduct preliminary investigation and at the same time with the propriety of the conduct of preliminary investigation. In Cojuangco, Jr. v. Presidential Commission on Good Government (PCGG),54 the Court resolved two issues, namely: (1) whether or not the PCGG has the power to conduct a preliminary investigation of the anti-graft and corruption cases filed by the Solicitor General against Eduardo Conjuangco, Jr. and other respondents for the alleged misuse of coconut levy funds; and (2) on the assumption that it has jurisdiction to conduct such a preliminary investigation, whether or not its conduct constitutes a violation of petitioners right to due process and equal protection of the law.55 The Court decided these issues notwithstanding the fact that Informations had already been filed with the trial court. In Allado v. Diokno,56 in a petition for certiorari assailing the propriety of the issuance of a warrant of arrest, the Court could not ignore the undue haste in the filing of the information and the inordinate interest of the government in filing the same. Thus, this Court took time to determine whether or not there was, indeed, probable cause to warrant the filing of information. This, notwithstanding the fact that information had been filed and a warrant of arrest had been issued. Petitioners therein came directly to this Court and sought relief to rectify the injustice that they suffered. Hierarchy of courts Neither can the petitions be dismissed solely because of violation of the principle of hierarchy of courts. This principle requires that recourse must first be made to the lower-ranked court exercising concurrent jurisdiction with a higher court.57 The Supreme Court has original jurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. While this jurisdiction is shared with the Court of Appeals and the RTC, a direct invocation of this Courts jurisdiction is allowed when there are special and important reasons therefor, clearly and especially set out in the petition, as in the present case.58 In the consolidated petitions, petitioners invoke exemption from the observance of the rule on hierarchy of courts in keeping with the Courts duty to determine whether or not the other branches of government have kept themselves within the limits of the Constitution and the laws, and that they have not abused the discretion given to them.59 It is noteworthy that the consolidated petitions assail the constitutionality of issuances and resolutions of the DOJ and the Comelec. The general rule is that this Court shall exercise only appellate jurisdiction over cases involving the constitutionality of a statute, treaty or regulation. However, such rule is subject to exception, that is, in circumstances where the Court believes that resolving the issue of constitutionality of a law or regulation at the first instance is of paramount importance and immediately affects the social, economic, and moral well-being of the people.60 This case falls within the exception. An expeditious resolution of the issues raised in the petitions is necessary. Besides, the Court has entertained a direct resort to the Court without the requisite motion for reconsideration filed below or without exhaustion of administrative remedies where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the government or of the petitioners and when there is an alleged violation of due process, as in the present case.61 We apply the same relaxation of the Rules in the present case and, thus, entertain direct resort to this Court. Substantive Issues Bases for the Creation of the Fact-Finding Team and Joint Committee Section 2, Article IX-C of the 1987 Constitution enumerates the powers and functions of the Comelec. Paragraph (6) thereof vests in the Comelec the power to:

(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. This was an important innovation introduced by the 1987 Constitution, because the above-quoted provision was not in the 1935 and 1973 Constitutions.62 The grant to the Comelec of the power to investigate and prosecute election offenses as an adjunct to the enforcement and administration of all election laws is intended to enable the Comelec to effectively insure to the people the free, orderly, and honest conduct of elections. The failure of the Comelec to exercise this power could result in the frustration of the true will of the people and make a mere idle ceremony of the sacred right and duty of every qualified citizen to vote.63 The constitutional grant of prosecutorial power in the Comelec was reflected in Section 265 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, to wit: Section 265. Prosecution. The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal [public prosecutor], or with the Ministry Department of Justice for proper investigation and prosecution, if warranted. Under the above provision of law, the power to conduct preliminary investigation is vested exclusively with the Comelec. The latter, however, was given by the same provision of law the authority to avail itself of the assistance of other prosecuting arms of the government.64 Thus, under Section 2,65 Rule 34 of the Comelec Rules of Procedure, provincial and city prosecutors and their assistants are given continuing authority as deputies to conduct preliminary investigation of complaints involving election offenses under election laws and to prosecute the same. The complaints may be filed directly with them or may be indorsed to them by the petitioner or its duly authorized representatives.66 Thus, under the Omnibus Election Code, while the exclusive jurisdiction to conduct preliminary investigation had been lodged with the Comelec, the prosecutors had been conducting preliminary investigations pursuant to the continuing delegated authority given by the Comelec. The reason for this delegation of authority has been explained in Commission on Elections v. Espaol:67 The deputation of the Provincial and City Prosecutors is necessitated by the need for prompt investigation and dispensation of election cases as an indispensable part of the task of securing fine, orderly, honest, peaceful and credible elections. Enfeebled by lack of funds and the magnitude of its workload, the petitioner does not have a sufficient number of legal officers to conduct such investigation and to prosecute such cases.68 Moreover, as we acknowledged in People v. Basilla,69 the prompt and fair investigation and prosecution of election offenses committed before or in the course of nationwide elections would simply not be possible without the assistance of provincial and city fiscals prosecutors and their assistants and staff members, and of the state prosecutors of the DOJ.70 Section 265 of the Omnibus Election Code was amended by Section 43 of R.A. No. 9369,71 which reads: Section 43. Section 265 of Batas Pambansa Blg. 881 is hereby amended to read as follows: SEC. 265. Prosecution. The Commission shall, through its duly authorized legal officers, have the power, concurrent with the other prosecuting arms of the government, to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same.72 As clearly set forth above, instead of a mere delegated authority, the other prosecuting arms of the government, such as the DOJ, now exercise concurrent jurisdiction with the Comelec to conduct preliminary investigation of all election offenses and to prosecute the same. It is, therefore, not only the power but the duty of both the Comelec and the DOJ to perform any act necessary to ensure the prompt and fair investigation and prosecution of election offenses. Pursuant to the above constitutional and statutory provisions, and as will be explained further below, we find no impediment for the Comelec and the DOJ to create the Joint Committee and Fact-Finding Team for the purpose of conducting a thorough investigation of the alleged massive electoral fraud and the manipulation of election results in the 2004 and 2007 national elections relating in particular to the presidential and senatorial elections.73 Constitutionality of Joint-Order No. 001-2011 A. Equal Protection Clause

Petitioners claim that the creation of the Joint Committee and Fact-Finding Team is in violation of the equal protection clause of the Constitution because its sole purpose is the investigation and prosecution of certain persons and incidents. They argue that there is no substantial distinction between the allegations of massive electoral fraud in 2004 and 2007, on the one hand, and previous and subsequent national elections, on the other hand; and no substantial distinction between petitioners and the other persons or public officials who might have been involved in previous election offenses. They insist that the Joint Panel was created to target only the Arroyo Administration as well as public officials linked to the Arroyo Administration. To bolster their claim, petitioners explain that Joint Order No. 001-2011 is similar to Executive Order No. 1 (creating the Philippine Truth Commission) which this Court had already nullified for being violative of the equal protection clause. Respondents, however, refute the above contentions and argue that the wide array of the possible election offenses and broad spectrum of individuals who may have committed them, if any, immediately negate the assertion that the assailed orders are aimed only at the officials of the Arroyo Administration. We agree with the respondents. The equal protection clause is enshrined in Section 1, Article III of the Constitution which reads: Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.74 The concept of equal protection has been laid down in Biraogo v. Philippine Truth Commission of 2010:75 One of the basic principles on which this government was founded is that of the equality of right which is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws is embraced in the concept of due process, as every unfair discrimination offends the requirements of justice and fair play. It has been embodied in a separate clause, however, to provide for a more specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause. According to a long line of decisions, equal protection simply requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. It requires public bodies and institutions to treat similarly-situated individuals in a similar manner. The purpose of the equal protection clause is to secure every person within a state's jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express terms of a statute or by its improper execution through the state's duly-constituted authorities. In other words, the concept of equal justice under the law requires the state to govern impartially, and it may not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective.76 Unlike the matter addressed by the Courts ruling in Biraogo v. Philippine Truth Commission of 2010, Joint Order No. 001-2011 cannot be nullified on the ground that it singles out the officials of the Arroyo Administration and, therefore, it infringes the equal protection clause. The Philippine Truth Commission of 2010 was expressly created for the purpose of investigating alleged graft and corruption during the Arroyo Administration since Executive Order No. 177 specifically referred to the "previous administration"; while the Joint Committee was created for the purpose of conducting preliminary investigation of election offenses during the 2004 and 2007 elections. While GMA and Mike Arroyo were among those subjected to preliminary investigation, not all respondents therein were linked to GMA as there were public officers who were investigated upon in connection with their acts in the performance of their official duties. Private individuals were also subjected to the investigation by the Joint Committee. The equal protection guarantee exists to prevent undue favor or privilege. It is intended to eliminate discrimination and oppression based on inequality. Recognizing the existence of real differences among men, it does not demand absolute equality. It merely requires that all persons under like circumstances and conditions shall be treated alike both as to privileges conferred and liabilities enforced.78 We once held that the Office of the Ombudsman is granted virtually plenary investigatory powers by the Constitution and by law and thus may, for every particular investigation, whether commenced by complaint or on its own initiative, decide how best to pursue each investigation. Since the Office of the Ombudsman is granted such latitude, its varying treatment of similarly situated investigations cannot by itself be considered a violation of any of the parties rights to the equal protection of the laws.79 This same doctrine should likewise apply in the present case. Thus, as the constitutional body granted with the broad power of enforcing and administering all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall,80 and tasked to ensure free, orderly, honest, peaceful, and credible elections,81 the Comelec has the authority to determine how best to perform such constitutional mandate. Pursuant to this authority, the Comelec issues various resolutions prior to every local or national elections setting forth the guidelines to be observed in the conduct of the elections. This shows that every election is distinct and requires different guidelines in order to ensure that the rules are updated to respond to existing circumstances.

Moreover, as has been practiced in the past, complaints for violations of election laws may be filed either with the Comelec or with the DOJ. The Comelec may even initiate, motu proprio, complaints for election offenses.82 Pursuant to law and the Comelecs own Rules, investigations may be conducted either by the Comelec itself through its law department or through the prosecutors of the DOJ. These varying procedures and treatment do not, however, mean that respondents are not treated alike. Thus, petitioners insistence of infringement of their constitutional right to equal protection of the law is misplaced. B. Due Process Petitioners claim that the Joint Panel does not possess the required cold neutrality of an impartial judge because it is all at once the evidence-gatherer, prosecutor and judge. They explain that since the Fact-Finding Team has found probable cause to subject them to preliminary investigation, it is impossible for the Joint Committee to arrive at an opposite conclusion. Petitioners likewise express doubts of any possibility that the Joint Committee will be fair and impartial to them as Secretary De Lima and Chairman Brillantes had repeatedly expressed prejudgment against petitioners through their statements captured by the media. For their part, respondents contend that petitioners failed to present proof that the President of the Philippines, Secretary of Justice, and Chairman of the Comelec actually made the statements allegedly prejudging their case and in the context in which they interpreted them. They likewise contend that assuming that said statements were made, there was no showing that Secretary De Lima had tried to intervene in the investigation to influence its outcome nor was it proven that the Joint Committee itself had prejudged the case. Lastly, they point out that Joint Order No. 001-2011 created two bodies, the Fact-Finding Team and the Joint Committee, with their respective mandates. Hence, they cannot be considered as one. We find for respondents. It is settled that the conduct of preliminary investigation is, like court proceedings, subject to the requirements of both substantive and procedural due process.83 Preliminary investigation is considered as a judicial proceeding wherein the prosecutor or investigating officer, by the nature of his functions, acts as a quasi-judicial officer.84 The authority of a prosecutor or investigating officer duly empowered to preside over or to conduct a preliminary investigation is no less than that of a municipal judge or even an RTC Judge.85 Thus, as emphasized by the Court in Ladlad v. Velasco:86 x x x We cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that their noble office is being used or prostituted, wittingly or unwittingly, for political ends, or other purposes alien to, or subversive of, the basic and fundamental objective of serving the interest of justice evenhandedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict adherence to the established procedure may public's perception of the impartiality of the prosecutor be enhanced.87 In this case, as correctly pointed out by respondents, there was no showing that the statements claimed to have prejudged the case against petitioners were made by Secretary De Lima and Chairman Brillantes or were in the prejudicial context in which petitioners claimed the statements were made. A reading of the statements allegedly made by them reveals that they were just responding to hypothetical questions in the event that probable cause would eventually be found by the Joint Committee. More importantly, there was no proof or even an allegation that the Joint Committee itself, tasked to conduct the requisite preliminary investigation against petitioners, made biased statements that would convey to the public that the members were favoring a particular party. Neither did the petitioners show that the President of the Philippines, the Secretary of Justice or the Chairman of the Comelec intervened in the conduct of the preliminary investigation or exerted undue pressure on their subordinates to tailor their decision with their public declarations and adhere to a pre-determined result.88 Moreover, insofar as the Comelec is concerned, it must be emphasized that the constitutional body is collegial. The act of the head of a collegial body cannot be considered as that of the entire body itself.89 In equating the alleged bias of the above-named officials with that of the Joint Committee, there would be no arm of the government credible enough to conduct a preliminary investigation.90 It must also be emphasized that Joint Order No. 001-2011 created two bodies, namely: (1) the Fact-Finding Team tasked to gather real, documentary and testimonial evidence which can be utilized in the preliminary investigation to be conducted by the Joint Committee; and (2) the Joint Committee mandated to conduct preliminary investigation. It is, therefore, inaccurate to say that there is only one body which acted as evidence-gatherer, prosecutor and judge. C. Separation of powers Petitioners claim that the Joint Panel is a new public office as shown by its composition, the creation of its own Rules of Procedure, and the source of funding for its operation. It is their position that the power of the DOJ to investigate the commission of crimes and the Comelecs constitutional mandate to investigate and prosecute violations of election laws do not include the power to create a new public office in the guise of a joint committee. Thus, in creating the Joint Panel, the DOJ and the Comelec encroached upon the power of the Legislature to create public office.

Respondents dispute this and contend that the Joint Committee and Fact-Finding Team are not new public offices, but merely collaborations between two existing government agencies sharing concurrent jurisdiction. This is shown by the fact that the members of the Joint Panel are existing officers of the DOJ and the Comelec who exercise duties and functions that are already vested in them. Again, we agree with respondents. As clearly explained above, the Comelec is granted the power to investigate, and where appropriate, prosecute cases of election offenses. This is necessary in ensuring free, orderly, honest, peaceful and credible elections. On the other hand, the DOJ is mandated to administer the criminal justice system in accordance with the accepted processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration of the correctional system.91 It is specifically empowered to "investigate the commission of crimes, prosecute offenders and administer the probation and correction system."92 Also, the provincial or city prosecutors and their assistants, as well as the national and regional state prosecutors, are specifically named as the officers authorized to conduct preliminary investigation.93Recently, the Comelec, through its duly authorized legal offices, is given the power, concurrent with the other prosecuting arms of the government such as the DOJ, to conduct preliminary investigation of all election offenses.94 Undoubtedly, it is the Constitution, statutes, and the Rules of Court and not the assailed Joint Order which give the DOJ and the Comelec the power to conduct preliminary investigation. No new power is given to them by virtue of the assailed order. As to the members of the Joint Committee and Fact-Finding Team, they perform such functions that they already perform by virtue of their current positions as prosecutors of the DOJ and legal officers of the Comelec. Thus, in no way can we consider the Joint Committee as a new public office. D. Independence of the Comelec Petitioners claim that in creating the Joint Panel, the Comelec has effectively abdicated its constitutional mandate to investigate and, where appropriate, to prosecute cases of violation of election laws including acts or omissions constituting election frauds, offenses, and malpractices in favor of the Executive Department acting through the DOJ Secretary. Under the set- up, the Comelec personnel is placed under the supervision and control of the DOJ. The chairperson is a DOJ official. Thus, the Comelec has willingly surrendered its independence to the DOJ and has acceded to share its exercise of judgment and discretion with the Executive Branch. We do not agree. Section 1,95 Article IX-A of the 1987 Constitution expressly describes all the Constitutional Commissions as independent. Although essentially executive in nature, they are not under the control of the President of the Philippines in the discharge of their respective functions.96 The Constitution envisions a truly independent Comelec committed to ensure free, orderly, honest, peaceful, and credible elections and to serve as the guardian of the peoples sacred right of suffrage the citizenrys vital weapon in effecting a peaceful change of government and in achieving and promoting political stability.97 Prior to the amendment of Section 265 of the Omnibus Election Code, the Comelec had the exclusive authority to investigate and prosecute election offenses. In the discharge of this exclusive power, the Comelec was given the right to avail and, in fact, availed of the assistance of other prosecuting arms of the government such as the prosecutors of the DOJ. By virtue of this continuing authority, the state prosecutors and the provincial or city prosecutors were authorized to receive the complaint for election offense and delegate the conduct of investigation to any of their assistants. The investigating prosecutor, in turn, would make a recommendation either to dismiss the complaint or to file the information. This recommendation is subject to the approval of the state, provincial or city prosecutor, who himself may file the information with the proper court if he finds sufficient cause to do so, subject, however, to the accuseds right to appeal to the Comelec.98 Moreover, during the past national and local elections, the Comelec issued Resolutions99 requesting the Secretary of Justice to assign prosecutors as members of Special Task Forces to assist the Comelec in the investigation and prosecution of election offenses. These Special Task Forces were created because of the need for additional lawyers to handle the investigation and prosecution of election offenses. Clearly, the Comelec recognizes the need to delegate to the prosecutors the power to conduct preliminary investigation. Otherwise, the prompt resolution of alleged election offenses will not be attained. This delegation of power, otherwise known as deputation, has long been recognized and, in fact, been utilized as an effective means of disposing of various election offense cases. Apparently, as mere deputies, the prosecutors played a vital role in the conduct of preliminary investigation, in the resolution of complaints filed before them, and in the filing of the informations with the proper court. As pointed out by the Court in Barangay Association for National Advancement and Transparency (BANAT) PartyList v. Commission on Elections,100 the grant of exclusive power to investigate and prosecute cases of election offenses to the Comelec was not by virtue of the Constitution but by the Omnibus Election Code which was eventually amended by Section 43 of R.A. 9369. Thus, the DOJ now conducts preliminary investigation of election offenses concurrently with the Comelec and no longer as mere deputies. If the prosecutors had been allowed to

conduct preliminary investigation and file the necessary information by virtue only of a delegated authority, they now have better grounds to perform such function by virtue of the statutory grant of authority. If deputation was justified because of lack of funds and legal officers to ensure prompt and fair investigation and prosecution of election offenses, the same justification should be cited to justify the grant to the other prosecuting arms of the government of such concurrent jurisdiction. In view of the foregoing disquisition, we find no impediment for the creation of a Joint Committee. While the composition of the Joint Committee and Fact-Finding Team is dominated by DOJ officials, it does not necessarily follow that the Comelec is inferior. Under the Joint Order, resolutions of the Joint Committee finding probable cause for election offenses shall still be approved by the Comelec in accordance with the Comelec Rules of Procedure. This shows that the Comelec, though it acts jointly with the DOJ, remains in control of the proceedings. In no way can we say that the Comelec has thereby abdicated its independence to the executive department. The text and intent of the constitutional provision granting the Comelec the authority to investigate and prosecute election offenses is to give the Comelec all the necessary and incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful, and credible elections.101 The Comelec should be allowed considerable latitude in devising means and methods that will insure the accomplishment of the great objective for which it was created.102 We may not agree fully with its choice of means, but unless these are clearly illegal or constitute gross abuse of discretion, this Court should not interfere.103 Thus, Comelec Resolution No. 9266, approving the creation of the Joint Committee and Fact-Finding Team, should be viewed not as an abdication of the constitutional bodys independence but as a means to fulfill its duty of ensuring the prompt investigation and prosecution of election offenses as an adjunct of its mandate of ensuring a free, orderly, honest, peaceful and credible elections. Although it belongs to the executive department, as the agency tasked to investigate crimes, prosecute offenders, and administer the correctional system, the DOJ is likewise not barred from acting jointly with the Comelec. It must be emphasized that the DOJ and the Comelec exercise concurrent jurisdiction in conducting preliminary investigation of election offenses. The doctrine of concurrent jurisdiction means equal jurisdiction to deal with the same subject matter.104 Contrary to the contention of the petitioners, there is no prohibition on simultaneous exercise of power between two coordinate bodies. What is prohibited is the situation where one files a complaint against a respondent initially with one office (such as the Comelec) for preliminary investigation which was immediately acted upon by said office and the re-filing of substantially the same complaint with another office (such as the DOJ). The subsequent assumption of jurisdiction by the second office over the cases filed will not be allowed. Indeed, it is a settled rule that the body or agency that first takes cognizance of the complaint shall exercise jurisdiction to the exclusion of the others.105 As cogently held by the Court in Department of Justice v. Hon. Liwag:106 To allow the same complaint to be filed successively before two or more investigative bodies would promote multiplicity of proceedings. It would also cause undue difficulties to the respondent who would have to appear and defend his position before every agency or body where the same complaint was filed. This would lead hapless litigants at a loss as to where to appear and plead their cause or defense. There is yet another undesirable consequence. There is the distinct possibility that the two bodies exercising jurisdiction at the same time would come up with conflicting resolutions regarding the guilt of the respondents. Finally, the second investigation would entail an unnecessary expenditure of public funds, and the use of valuable and limited resources of Government, in a duplication of proceedings already started with the Ombudsman.107 None of these problems would likely arise in the present case. The Comelec and the DOJ themselves agreed that they would exercise their concurrent jurisdiction jointly. Although the preliminary investigation was conducted on the basis of two complaints the initial report of the Fact-Finding Team and the complaint of Senator Pimentel both complaints were filed with the Joint Committee. Consequently, the complaints were filed with and the preliminary investigation was conducted by only one investigative body. Thus, we find no reason to disallow the exercise of concurrent jurisdiction jointly by those given such authority. This is especially true in this case given the magnitude of the crimes allegedly committed by petitioners. The joint preliminary investigation also serves to maximize the resources and manpower of both the Comelec and the DOJ for the prompt disposition of the cases. Citing the principle of concurrent jurisdiction, petitioners insist that the investigation conducted by the Comelec involving Radam and Martirizar bars the creation of the Joint Committee for purposes of conducting another preliminary investigation. In short, they claim that the exercise by the Comelec of its jurisdiction to investigate excludes other bodies such as the DOJ and the Joint Committee from taking cognizance of the case. Petitioners add that the investigation should have been conducted also by the Comelec as the 2007 cases of Radam and Martirizar include several John Does and Jane Does. We do not agree. While the Comelec conducted the preliminary investigation against Radam, Martirizar and other unidentified persons, it only pertains to election offenses allegedly committed in North and South Cotabato. On the other hand, the preliminary investigation conducted by the Joint Committee (involving GMA) pertains to election offenses supposedly committed in Maguindanao. More importantly, considering the broad power of the Comelec to choose the means of fulfilling its duty of ensuring the prompt investigation and prosecution of election offenses as discussed

earlier, there is nothing wrong if the Comelec chooses to work jointly with the DOJ in the conduct of said investigation. To reiterate, in no way can we consider this as an act abdicating the independence of the Comelec. Publication Requirement In the conduct of preliminary investigation, the DOJ is governed by the Rules of Court, while the Comelec is governed by the 1993 Comelec Rules of Procedure. There is, therefore, no need to promulgate new Rules as may be complementary to the DOJ and Comelec Rules. As earlier discussed, considering that Joint Order No. 001-2011 only enables the Comelec and the DOJ to exercise powers which are already vested in them by the Constitution and other existing laws, it need not be published for it to be valid and effective. A close examination of the Joint Committees Rules of Procedure, however, would show that its provisions affect the public. Specifically, the following provisions of the Rules either restrict the rights of or provide remedies to the affected parties, to wit: (1) Section 1 provides that "the Joint Committee will no longer entertain complaints from the public as soon as the Fact-Finding Team submits its final report, except for such complaints involving offenses mentioned in the Fact-Finding Teams Final Report"; (2) Section 2 states that "the Joint Committee shall not entertain a Motion to Dismiss"; and (3) Section 5 provides that a Motion for Reconsideration may be availed of by the aggrieved parties against the Joint Committees Resolution. Consequently, publication of the Rules is necessary. The publication requirement covers not only statutes but administrative regulations and issuances, as clearly outlined in Taada v. Tuvera:108 effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties.109 As opposed to Honasan II v. The Panel of Investigating Prosecutors of the Department of Justice,110 where the Court held that OMB-DOJ Joint Circular No. 95-001 is only an internal arrangement between the DOJ and the Office of the Ombudsman outlining the authority and responsibilities among prosecutors of both offices in the conduct of preliminary investigation, the assailed Joint Committees Rules of Procedure regulate not only the prosecutors of the DOJ and the Comelec but also the conduct and rights of persons, or the public in general. The publication requirement should, therefore, not be ignored. Publication is a necessary component of procedural due process to give as wide publicity as possible so that all persons having an interest in the proceedings may be notified thereof.111 The requirement of publication is intended to satisfy the basic requirements of due process. It is imperative for it will be the height of injustice to punish or otherwise burden a citizen for the transgressions of a law or rule of which he had no notice whatsoever.112 Nevertheless, even if the Joint Committees Rules of Procedure is ineffective for lack of publication, the proceedings undertaken by the Joint Committee are not rendered null and void for that reason, because the preliminary investigation was conducted by the Joint Committee pursuant to the procedures laid down in Rule 112 of the Rules on Criminal Procedure and the 1993 Comelec Rules of Procedure. Validity of the Conduct of Preliminary Investigation In her Supplemental Petition,113 GMA outlines the incidents that took place after the filing of the instant petition, specifically the issuance by the Joint Committee of the Joint Resolution, the approval with modification of such resolution by the Comelec and the filing of information and the issuance of a warrant of arrest by the RTC. With these supervening events, GMA further assails the validity of the proceedings that took place based on the following additional grounds: (1) the undue and unbelievable haste attending the Joint Committees conduct of the preliminary investigation, its resolution of the case, and its referral to and approval by the Comelec, taken in conjunction with the statements from the Office of the President, demonstrate a deliberate and reprehensible pattern of abuse of inalienable rights and a blatant disregard of the envisioned integrity and independence of the Comelec; (2) as it stands, the creation of the Joint Committee was for the singular purpose of railroading the proceedings in the prosecution of the petitioner and in flagrant violation of her right to due process and equal protection of the laws; (3) the proceedings of the Joint Committee cannot be considered impartial and fair, considering that respondents have acted as law enforcers, who conducted the criminal investigation, gathered evidence and thereafter ordered the filing of complaints, and at the same time authorized preliminary investigation based on the complaints they caused to be filed; (4) the Comelec became an instrument of oppression when it hastily approved the resolution of the Joint Committee even if two of its members were in no position to cast their votes as they admitted to not having yet read the voluminous records of the cases; and (5) flagrant and repeated violations of her right to due process at every stage of the proceedings demonstrate a deliberate attempt to single out petitioner through the creation of the Joint Committee.114

In their Supplement to the Consolidated Comment,115 respondents accuse petitioners of violating the rule against forum shopping. They contend that in filing the Supplemental Petition before the Court, the Urgent Omnibus Motion Ad Cautelam with the RTC, and the Motion to Vacate Ad Cautelam with the Comelec, GMA raises the common issue of whether or not the proceedings before the Joint Committee and the Comelec are null and void for violating the Constitution. Respondents likewise claim that the issues raised in the supplemental petition are factual which is beyond the power of this Court to decide. We cannot dismiss the cases before us on the ground of forum shopping. Forum shopping is the act of a party against whom an adverse judgment has been rendered in one forum, of seeking another and possibly favorable opinion in another forum other than by appeal or the special civil action of certiorari.116There can also be forum shopping when a party institutes two or more suits in different courts, either simultaneously or successively, in order to ask the courts to rule on the same and related causes and/or to grant the same or substantially the same reliefs on the supposition that one or the other court would make a favorable disposition or increase a partys chances of obtaining a favorable decision or action.117 Indeed, petitioner GMA filed a Supplemental Petition before the Court, an Urgent Omnibus Motion Ad Cautelam before the RTC, and a Motion to Vacate Ad Cautelam before the Comelec, emphasizing the unbelievable haste committed by the Joint Committee and the Comelec in disposing of the cases before them. However, a plain reading of the allegations in GMAs motion before the RTC would show that GMA raised the issue of undue haste in issuing the Joint Resolution only in support of her prayer for the trial court to hold in abeyance the issuance of the warrant of arrest, considering that her motion for reconsideration of the denial of her motion to be furnished copies of documents was not yet acted upon by the Joint Committee. If at all the constitutional issue of violation of due process was raised, it was merely incidental. More importantly, GMA raised in her motion with the RTC the finding of probable cause as she sought the judicial determination of probable cause which is not an issue in the petitions before us. GMAs ultimate prayer is actually for the court to defer the issuance of the warrant of arrest. Clearly, the reliefs sought in the RTC are different from the reliefs sought in this case. Thus, there is no forum shopping. With respect to the Motion to Vacate Ad Cautelam filed with the Comelec, while the issues raised therein are substantially similar to the issues in the supplemental petition which, therefore, strictly speaking, warrants outright dismissal on the ground of forum shopping, we cannot do so in this case in light of the due process issues raised by GMA.118 It is worthy to note that the main issues in the present petitions are the constitutionality of the creation of the Joint Panel and the validity of the proceedings undertaken pursuant thereto for alleged violation of the constitutional right to due process. In questioning the propriety of the conduct of the preliminary investigation in her Supplemental Petition, GMA only raises her continuing objection to the exercise of jurisdiction of the Joint Committee and the Comelec. There is, therefore, no impediment for the Court to rule on the validity of the conduct of preliminary investigation. In Uy v. Office of the Ombudsman,119 the Court explained the nature of preliminary investigation, to wit: A preliminary investigation is held before an accused is placed on trial to secure the innocent against hasty, malicious, and oppressive prosecution; to protect him from an open and public accusation of a crime, as well as from the trouble, expenses, and anxiety of a public trial. It is also intended to protect the state from having to conduct useless and expensive trials. While the right is statutory rather than constitutional, it is a component of due process in administering criminal justice. The right to have a preliminary investigation conducted before being bound for trial and before being exposed to the risk of incarceration and penalty is not a mere formal or technical right; it is a substantive right. To deny the accused's claim to a preliminary investigation is to deprive him of the full measure of his right to due process.120 A preliminary investigation is the crucial sieve in the criminal justice system which spells for an individual the difference between months if not years of agonizing trial and possibly jail term, on the one hand, and peace of mind and liberty, on the other hand. Thus, we have characterized the right to a preliminary investigation as not a mere formal or technical right but a substantive one, forming part of due process in criminal justice.121 In a preliminary investigation, the Rules of Court guarantee the petitioners basic due process rights such as the right to be furnished a copy of the complaint, the affidavits, and other supporting documents, and the right to submit counter-affidavits, and other supporting documents in her defense.122 Admittedly, GMA received the notice requiring her to submit her counter-affidavit. Yet, she did not comply, allegedly because she could not prepare her counteraffidavit. She claimed that she was not furnished by Senator Pimentel pertinent documents that she needed to adequately prepare her counter-affidavit. In her Omnibus Motion Ad Cautelam123 to require Senator Pimentel to furnish her with documents referred to in his complaint-affidavit and for production of election documents as basis for the charge of electoral sabotage, GMA prayed that the Joint Committee issue an Order directing the Fact-Finding Team and Senator Pimentel to furnish her with copies of the following documents: a. Complaint-affidavit and other relevant documents of Senator Aquilino Pimentel III filed before the Commission on Elections against Attys. Lilia Suan-Radam and Yogie Martirizar, as well as the Informations

filed in the Regional Trial Court of Pasay City, Branch 114 in Criminal Case Nos. R-PSU-11-03190-CR to RPSU-11-03200-CR. b. Records in the petitions filed by complainant Pimentel before the National Board of Canvassers, specifically in NBC Case Nos. 07-162, 07-168, 07-157, 07-159, 07-161 and 07-163. c. Documents which served as basis in the allegations of "Significant findings specific to the protested municipalities in the Province of Maguindanao." d. Documents which served as basis in the allegations of "Significant findings specific to the protested municipalities in the Province of Lanao del Norte." e. Documents which served as basis in the allegations of "Significant findings specific to the protested municipalities in the Province of Shariff Kabunsuan." f. Documents which served as basis in the allegations of "Significant findings specific to the protested municipalities in the Province of Lanao del Sur." g. Documents which served as basis in the allegations of "Significant findings specific to the protested municipalities in the Province of Sulu." h. Documents which served as basis in the allegations of "Significant findings specific to the protested municipalities in the Province of Basilan." i. Documents which served as basis in the allegations of "Significant findings specific to the protested municipalities in the Province of Sultan Kudarat."124 GMA likewise requested the production of election documents used in the Provinces of South and North Cotabato and Maguindanao.125 The Joint Committee, however, denied GMAs motion which carried with it the denial to extend the filing of her counter-affidavit. Consequently, the cases were submitted for resolution sans GMAs and the other petitioners counter-affidavits. This, according to GMA, violates her right to due process of law. We do not agree. GMAs insistence of her right to be furnished the above-enumerated documents is based on Section 3 (b), Rule 112 of the Rules on Criminal Procedure, which reads: (b) x x x The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense, Objects as evidence need not be furnished a party but shall be made available for examination, copying or photographing at the expense of the requesting party.126 Section 6 (a), Rule 34 of the Comelec Rules of Procedure also grants the respondent such right of examination, to wit: Sec. 6. Conduct of preliminary investigation. (a) If on the basis of the complaint, affidavits and other supporting evidence, the investigating officer finds no ground to continue with the inquiry, he shall recommend the dismissal of the complaint and shall follow the procedure prescribed in Sec. 8 (c) of this Rule. Otherwise, he shall issue a subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and other supporting documents giving said respondent ten (10) days from receipt within which to submit counter-affidavits and other supporting documents. The respondent shall have the right to examine all other evidence submitted by the complainant.127 Clearly from the above-quoted provisions, the subpoena issued against respondent therein should be accompanied by a copy of the complaint and the supporting affidavits and documents. GMA also has the right to examine documents but such right of examination is limited only to the documents or evidence submitted by the complainants (Senator Pimentel and the Fact-Finding Team) which she may not have been furnished and to copy them at her expense. While it is true that Senator Pimentel referred to certain election documents which served as bases in the allegations of significant findings specific to the protested municipalities involved, there were no annexes or attachments to the complaint filed.128 As stated in the Joint Committees Order dated November 15, 2011 denying GMAs Omnibus

Motion Ad Cautelam, Senator Pimentel was ordered to furnish petitioners with all the supporting evidence129 However, Senator Pimentel manifested that he was adopting all the affidavits attached to the FactFinding Teams Initial Report.130 Therefore, when GMA was furnished with the documents attached to the Initial Report, she was already granted the right to examine as guaranteed by the Comelec Rules of Procedure and the Rules on Criminal Procedure. Those were the only documents submitted by the complainants to the Committee. If there are other documents that were referred to in Senator Pimentels complaint but were not submitted to the Joint Committee, the latter considered those documents unnecessary at that point (without foreclosing the relevance of other evidence that may later be presented during the trial)131 as the evidence submitted before it were considered adequate to find probable cause against her.132 Anyway, the failure of the complainant to submit documents supporting his allegations in the complaint may only weaken his claims and eventually works for the benefit of the respondent as these merely are allegations unsupported by independent evidence. We must, however, emphasize at this point that during the preliminary investigation, the complainants are not obliged to prove their cause beyond reasonable doubt. It would be unfair to expect them to present the entire evidence needed to secure the conviction of the accused prior to the filing of information.133 A preliminary investigation is not the occasion for the full and exhaustive display of the parties respective evidence but the presentation only of such evidence as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof and should be held for trial.134 Precisely there is a trial to allow the reception of evidence for the prosecution in support of the charge.135 With the denial of GMAs motion to be furnished with and examine the documents referred to in Senator Pimentels complaint, GMAs motion to extend the filing of her counter-affidavit and countervailing evidence was consequently denied. Indeed, considering the nature of the crime for which GMA was subjected to preliminary investigation and the documents attached to the complaint, it is incumbent upon the Joint Committee to afford her ample time to examine the documents submitted to the Joint Committee in order that she would be able to prepare her counteraffidavit. She cannot, however, insist to examine documents not in the possession and custody of the Joint Committee nor submitted by the complainants. Otherwise, it might cause undue and unnecessary delay in the disposition of the cases. This undue delay might result in the violation of the right to a speedy disposition of cases as enshrined in Section 16, Article III of the Constitution which states that "all persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies." The constitutional right to speedy disposition of cases is not limited to the accused in criminal proceedings but extends to all parties in all cases, including civil and administrative cases, and in all proceedings, including judicial and quasi-judicial hearings.136 Any party to a case has the right to demand on all officials tasked with the administration of justice to expedite its disposition.137 Society has a particular interest in bringing swift prosecutions, and the societys representatives are the ones who should protect that interest.138 Even assuming for the sake of argument that the denial of GMAs motion to be furnished with and examine the documents referred to in Senator Pimentels complaint carried with it the denial to extend the filing of her counteraffidavit and other countervailing evidence rendering the preliminary investigation irregular, such irregularity would not divest the RTC of jurisdiction over the case and would not nullify the warrant of arrest issued in connection therewith, considering that Informations had already been filed against petitioners, except Mike Arroyo. This would only compel us to suspend the proceedings in the RTC and remand the case to the Joint Committee so that GMA could submit her counter-affidavit and other countervailing evidence if she still opts to. However, to do so would hold back the progress of the case which is anathema to the accuseds right to speedy disposition of cases. It is well settled that the absence or irregularity of preliminary investigation does not affect the courts jurisdiction over the case. Nor does it impair the validity of the criminal information or render it defective. Dismissal is not the remedy.139Neither is it a ground to quash the information or nullify the order of arrest issued against the accused or justify the release of the accused from detention.140 The proper course of action that should be taken is to hold in abeyance the proceedings upon such information and to remand the case for the conduct of preliminary investigation.141 In the landmark cases of Cojuangco, Jr. v. Presidential Commission on Good Government (PCGG)142 and Allado v. Diokno,143 we dismissed the criminal cases and set aside the informations and warrants of arrest. In Cojuangco, we dismissed the criminal case because the information was filed by the PCGG which we declared to be unauthorized to conduct the preliminary investigation and, consequently, file the information as it did not possess the cold neutrality of an impartial judge. In Allado, we set aside the warrant of arrest issued against petitioners therein and enjoined the trial court from proceeding further for lack of probable cause. For one, there was serious doubt on the reported death of the victim in that case since the corpus delicti had not been established nor had his remains been recovered;and based on the evidence submitted, there was nothing to incriminate petitioners therein. In this case, we cannot reach the same conclusion because the Information filed before the RTC of Pasay City was filed by the Comelec en banc which had the authority to file the information for electoral sabotage and because the presence or absence of probable cause is not an issue herein. As can be gleaned from their assignment of errors/issues, petitioners did not question the finding of probable cause in any of their supplemental petitions. It was only in GMAs memorandum where she belatedly included a discussion on the "insufficiency" of the evidence supporting the finding of probable cause for the filing of the Information for electoral sabotage against her.144 A closer look at her arguments, however, would show that they were included only to highlight the necessity of examining the election documents GMA requested to see before she could file her counter-affidavit. At any rate, since GMA failed to submit her counter-affidavit and other countervailing evidence within the period required by the Joint Committee, we cannot excuse her from non-compliance.

There might have been overzealousness on the part of the Joint Committee in terminating the investigation, endorsing the Joint Resolution to the Comelec for approval, and in filing the information in court. However, speed in the conduct of proceedings by a judicial or quasi-judicial officer cannot per se be instantly attributed to an injudicious performance of functions.145 The orderly administration of justice remains the paramount consideration with particular regard to the peculiar circumstances of each case.146 To be sure, petitioners were given the opportunity to present countervailing evidence. Instead of complying with the Joint Committees directive, several motions were filed but were denied by the Joint Committee. Consequently, petitioners right to submit counter-affidavit and countervailing evidence was forfeited. Taking into account the constitutional right to speedy disposition of cases and following the procedures set forth in the Rules on Criminal Procedure and the Comelec Rules of Procedure, the Joint Committee finally reached its conclusion and referred the case to the Comelec. The latter, in turn, performed its task and filed the information in court. Indeed, petitioners were given the opportunity to be heard. They even actively participated in the proceedings and in fact filed several motions before the Joint Committee. Consistent with the constitutional mandate of speedy disposition of cases, unnecessary delays should be avoided. Finally, we take judicial notice that on February 23, 2012, GMA was already arraigned and entered a plea of "not guilty" to the charge against her and thereafter filed a Motion for Bail which has been granted. Considering that the constitutionality of the creation of the Joint Panel is sustained, the actions of the Joint Committee and Fact-Finding Team are valid and effective. As the information was filed by the Commission authorized to do so, its validity is sustained. Thus, we consider said entry of plea and the Petition for Bail waiver on the part of GMA of her right to submit counter-affidavit and countervailing evidence before the Joint Committee, and recognition of the validity of the information against her. Her act indicates that she opts to avail of judicial remedies instead of the executive remedy of going back to the Joint Committee for the submission of the counter-affidavit and countervailing evidence. Besides, as discussed earlier, the absence or irregularity of preliminary investigation does not affect the courts jurisdiction over the case nor does it impair the validity of the criminal information or render it defective. It must be stressed, however, that this supervening event does not render the cases before the Court moot and academic as the main issues raised by petitioners are the constitutionality of the creation of the Joint Committee and the Fact-Finding Team and the validity of the proceedings undertaken pursuant to their respective mandates. The Court notes that the Joint Committee and the Comelec have not disposed of the cases of the other respondents subjects of the preliminary investigation as some of them were subjected to further investigation. In order to remove the cloud of doubt that pervades that petitioners are being singled out, it is to the best interest of all the parties concerned that the Joint Committee and the Comelec terminate the proceedings as to the other respondents therein and not make a piecemeal disposition of the cases. A peripheral issue which nonetheless deserves our attention is the question about the credibility of the Comelec brought about by the alleged professional relationship between Comelec Chairman Brillantes on one hand and the complainant Senator Pimentel and Fernando Poe, Jr. (FPJ), GMAs rival in the 2004 elections, on the other hand; and by the other Commissioners147 reasons for their partial inhibition. To be sure, Chairman Brillantes relationship with FPJ and Senator Pimentel is not one of the grounds for the mandatory disqualification of a Commissioner. At its most expansive, it may be considered a ground for voluntary inhibition which is indeed discretionary as the same was primarily a matter of conscience and sound discretion on the part of the Commissioner judge based on his or her rational and logical assessment of the case.148 Bare allegations of bias and prejudice are not enough in the absence of clear and convincing evidence to overcome the presumption that a judge will undertake his noble role to dispense justice according to law and evidence without fear or favor.149 It being discretionary and since Commissioner Brillantes was in the best position to determine whether or not there was a need to inhibit from the case, his decision to participate in the proceedings, in view of higher interest of justice, equity and public interest, should be respected. While a party has the right to seek the inhibition or disqualification of a judge (or prosecutor or Commissioner) who does not appear to be wholly free, disinterested, impartial, and independent in handling the case, this right must be weighed with his duty to decide cases without fear of repression.150 Indeed, in Javier v. Comelec,151 the Court set aside the Comelecs decision against Javier when it was disclosed that one of the Commissioners who had decided the case was a law partner of Javiers opponent and who had refused to excuse himself from hearing the case. Javier, however, is not applicable in this case. First, the cited case involves the Comelecs exercise of its adjudicatory function as it was called upon to resolve the propriety of the proclamation of the winner in the May 1984 elections for Batasang Pambansa of Antique. Clearly, the grounds for inhibition/disqualification were applicable. Second, the case arose at the time where the purity of suffrage has been defiled and the popular will scorned through the confabulation of those in authority.152 In other words, the controversy arose at the time when the public confidence in the Comelec was practically nil because of its transparent bias in favor of the administration.153Lastly, in determining the propriety of the decision rendered by the Comelec, the Court took into consideration not only the relationship (being former partners in the law firm) between private respondents therein, Arturo F. Pacificador, and then Comelec Commissioner Jaime Opinion (Commissioner Opinion) but also the general attitude of the Comelec toward the party in power at that time. Moreover, the questioned Comelec decision was rendered only by a division of the Comelec. The Court thus concluded in Javier that Commissioner Opinions refusal to inhibit himself divested the Comelecs Second Division of the necessary vote for the questioned decision and rendered the proceedings null and void.154 On the contrary, the present case involves only the conduct of preliminary investigation and the questioned resolution is an act of the Comelec En Banc where all the Commissioners participated and more than a majority (even if Chairman Brillantes is excluded) voted in favor of the assailed Comelec resolution. Unlike in 1986, public

confidence in the Comelec remains. The Commissioners have already taken their positions in light of the claim of "bias and partiality" and the causes of their partial inhibition. Their positions should be respected confident that in doing so, they had the end in view of ensuring that the credibility of the Commission is not seriously affected. To recapitulate, we find and so hold that petitioners failed to establish any constitutional or legal impediment to the creation of the Joint DOJ-Comelec Preliminary Investigation Committee and Fact-Finding Team. First, while GMA and Mike Arroyo were among those subjected to preliminary investigation, not all respondents therein were linked to GMA; thus, Joint Order No. 001-2011 does not violate the equal protection clause of the Constitution. Second, the due process clause is likewise not infringed upon by the alleged prejudgment of the case as petitioners failed to prove that the Joint Panel itself showed such bias and partiality against them. Neither was it shown that the Justice Secretary herself actually intervened in the conduct of the preliminary investigation. More importantly, considering that the Comelec is a collegial body, the perceived prejudgment of Chairman Brillantes as head of the Comelec cannot be considered an act of the body itself. Third, the assailed Joint Order did not create new offices because the Joint Committee and Fact-Finding Team perform functions that they already perform by virtue of the Constitution, the statutes, and the Rules of Court.
1wphi1

Fourth, in acting jointly with the DOJ, the Comelec cannot be considered to have abdicated its independence in favor of the executive branch of government. Resolution No. 9266 was validly issued by the Comelec as a means to fulfill its duty of ensuring the prompt investigation and prosecution of election offenses as an adjunct of its mandate of ensuring a free, orderly, honest, peaceful, and credible elections. The role of the DOJ in the conduct of preliminary investigation of election offenses has long been recognized by the Comelec because of its lack of funds and legal officers to conduct investigations and to prosecute such cases on its own. This is especially true after R.A. No. 9369 vested in the Comelec and the DOJ the concurrent jurisdiction to conduct preliminary investigation of all election offenses. While we uphold the validity of Comelec Resolution No. 9266 and Joint Order No. 001-2011, we declare the Joint Committees Rules of Procedure infirm for failure to comply with the publication requirement. Consequently, Rule 112 of the Rules on Criminal Procedure and the 1993 Comelec Rules of Procedure govern. Fifth, petitioners were given the opportunity to be heard. They were furnished a copy of the complaint, the affidavits, and other supporting documents submitted to the Joint Committee and they were required to submit their counteraffidavit and countervailing evidence. As to petitioners Mike Arroyo and Abalos, the pendency of the cases before the Court does not automatically suspend the proceedings before the Joint Committee nor excuse them from their failure to file the required counter-affidavits. With the foregoing disquisitions, we find no reason to nullify the proceedings undertaken by the Joint Committee and the Comelec in the electoral sabotage cases against petitioners. WHEREFORE, premises considered, the petitions and supplemental petitions are DISMISSED. Comelec Resolution No. 9266 dated August 2, 2011, Joint Order No. 001-2011 dated August 15, 2011, and the Fact-Finding Teams Initial Report dated October 20, 2011, are declared VALID. However, the Rules of Procedure on the Conduct of Preliminary Investigation on the Alleged Election Fraud in the 2004 and 2007 National Elections is declared INEFFECTIVE for lack of publication. In view of the constitutionality of the Joint Panel and the proceedings having been conducted in accordance with Rule 112 of the Rules on Criminal Procedure and Rule 34 of the Comelec Rules of Procedure, the conduct of the preliminary investigation is hereby declared VALID. Let the proceedings in the Regional Trial Court of Pasay City, Branch 112, where the criminal cases for electoral sabotage against petitioners GMA and Abalos are pending, proceed with dispatch. SO ORDERED.

G.R. No. 177508

August 7, 2009

BARANGAY ASSOCIATION FOR NATIONAL ADVANCEMENT AND TRANSPARENCY (BANAT) PARTY-LIST, represented by SALVADOR B. BRITANICO, Petitioner, vs. COMMISSION ON ELECTIONS, Respondent. DECISION CARPIO, J.: The Case Before the Court is a petition for prohibition1 with a prayer for the issuance of a temporary restraining order or a writ of preliminary injunction2 filed by petitioner Barangay Association for National Advancement and Transparency (BANAT) Party List (petitioner) assailing the constitutionality of Republic Act No. 9369 (RA 9369)3 and enjoining respondent Commission on Elections (COMELEC) from implementing the statute. RA 9369 is a consolidation of Senate Bill No. 2231 and House Bill No. 5352 passed by the Senate on 7 December 2006 and the House of Representatives on 19 December 2006. On 23 January 2007, less than four months before the 14 May 2007 local elections, the President signed RA 9369. Two newspapers of general circulation, Malaya and Business Mirror, published RA 9369 on 26 January 2007. RA 9369 thus took effect on 10 February 2007. On 7 May 2007, petitioner, a duly accredited multi-sectoral organization, filed this petition for prohibition alleging that RA 9369 violated Section 26(1), Article VI of the Constitution.4 Petitioner also assails the constitutionality of Sections 34, 37, 38, and 43 of RA 9369. According to petitioner, these provisions are of questionable application and doubtful validity for failing to comply with the provisions of the Constitution. The COMELEC and the Office of the Solicitor General (OSG) filed their respective Comments. At the outset, both maintain that RA 9369 enjoys the presumption of constitutionality, save for the prayer of the COMELEC to declare Section 43 as unconstitutional. The Assailed Provisions of RA 9369 Petitioner assails the following provisions of RA 9369: 1. Section 34 which provides: SEC. 34. Sec. 26 of Republic Act No. 7166 is hereby amended to read as follows: "SEC. 26. Official Watchers. - Every registered political party or coalition of political parties, and every candidate shall each be entitled to one watcher in every polling place and canvassing center: Provided That, candidates for the Sangguniang Panlalawigan, Sangguniang Panlunsod, or Sangguniang Bayan belonging to the same slate or ticket shall collectively be entitled to only one watcher. "The dominant majority party and dominant minority party, which the Commission shall determine in accordance with law, shall each be entitled to one official watcher who shall be paid a fixed per diem of four hundred pesos (400.00). "There shall also recognized six principal watchers, representing the six accredited major political parties excluding the dominant majority and minority parties, who shall be designated by the Commission upon nomination of the said parties. These political parties shall be determined by the Commission upon notice and hearing on the basis of the following circumstances: "(a) The established record of the said parties, coalition of groups that now composed them, taking into account, among other things, their showing in past election; "(b) The number of incumbent elective officials belonging to them ninety (90) days before the date of election; "(c) Their identifiable political organizations and strengths as evidenced by their organized/chapters; "(d) The ability to fill a complete slate of candidates from the municipal level to the position of President; and "(e) Other analogous circumstances that may determine their relative organizations and strengths." 2. Section 37 which provides:

SEC. 37. Section 30 of Republic Act No. 7166 is hereby amended to read as follows: "SEC. 30. Congress as the National Board of Canvassers for the Election of President and Vice President: The Commission en banc as the National Board of Canvassers for the election of senators: Determination of Authenticity and Due Execution of Certificates of Canvass. Congress and the Commission en banc shall determine the authenticity and due execution of the certificate of canvass for president and vice president and senators, respectively, as accomplished and transmitted to it by the local boards of canvassers, on a showing that: (1) each certificate of canvass was executed, signed and thumbmarked by the chairman and members of the board of canvassers and transmitted or caused to be transmitted to Congress by them; (2) each certificate of canvass contains the names of all of the candidates for president and vice president or senator, as the case may be, and their corresponding votes in words and their corresponding votes in words and in figures; (3) there exits no discrepancy in other authentic copies of the certificates of canvass or any of its supporting documents such as statement of votes by city/municipality/by precinct or discrepancy in the votes of any candidate in words and figures in the certificate; and (4) there exist no discrepancy in the votes of any candidate in words and figures in the certificates of canvass against the aggregate number of votes appearing in the election returns of precincts covered by the certificate of canvass: Provided, That certified print copies of election returns or certificates of canvass may be used for the purpose of verifying the existence of the discrepancy. "When the certificate of canvass, duly certified by the board of canvassers of each province, city of district, appears to be incomplete, the Senate President or the Chairman of the Commission, as the case may be, shall require the board of canvassers concerned to transmit by personal delivery, the election returns form polling places that were not included in the certificate of canvass and supporting statements. Said election returns shall be submitted by personal delivery within two (2) days from receipt of notice. "When it appears that any certificate of canvass or supporting statement of votes by city/municipality or by precinct bears erasures or alteration which may cast doubt as to the veracity of the number of votes stated herein and may affect the result of the election, upon requested of the presidential, vice presidential or senatorial candidate concerned or his party, Congress or the Commission en banc, as the case may be shall, for the sole purpose of verifying the actual number of votes cast for president, vice president or senator, count the votes as they appear in the copies of the election returns submitted to it. "In case of any discrepancy, incompleteness, erasure or alteration as mentioned above, the procedure on preproclamation controversies shall be adopted and applied as provided in Section 17,18,19 and 20. "Any person who present in evidence a simulated copy of an election return, certificate of canvass or statement of votes, or a printed copy of an election return, certificate of canvass or statement of votes bearing a simulated certification or a simulated image, shall be guilty of an election offense shall be penalized in accordance with Batas Pambansa Blg. 881." 3. Section 38 which provides: SEC. 38. Section 15 of Republic Act No. 7166 is hereby amended to read as follows: "SEC. 15. Pre-proclamation Cases in Elections for President, Vice President, Senator, and Member of the House of Representatives. - For purposes of the elections for president, vice president, senator, and member of the House of Representatives, no pre-proclamation cases shall be allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of election returns or the certificates of canvass, as the case may be, except as provided for in Section 30 hereof. However, this does not preclude the authority of the appropriate canvassing body motu proprio or upon written complaint of an interested person to correct manifest errors in the certificate of canvass or election returns before it. "Questions affecting the composition or proceedings of the board of canvassers may be initiated in the board or directly with the Commission in accordance with Section 19 hereof. "Any objection on the election returns before the city or municipal board of canvassers, or on the municipal certificates of canvass before the provincial board of canvassers or district board of canvassers in Metro Manila Area, shall be specifically noticed in the minutes of the respective proceedings." 4. Section 43 which provides: SEC. 43. Section 265 of Batas Pambansa Blg. 881 is hereby amended to read as follows: "SEC. 265. Prosecution. The Commission shall, through its duly authorized legal officers, have the power, concurrent with the other prosecuting arms of the government, to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same." The Issues Petitioner raises the following issues:

1. Whether RA 9369 violates Section 26(1), Article VI of the Constitution; Whether Sections 37 and 38 violate Section 17, Article VI5 and Paragraph 7, Section 4, Article VII6 of the Constitution; Whether Section 43 violates Section 2(6), Article IX-C of the Constitution;7 and Whether Section 34 violates Section 10, Article III of the Constitution.8 The Courts Ruling The petition has no merit. is settled that every statute is presumed to be constitutional.9 The presumption is that the legislature intended to enact a valid, sensible and just law. Those who petition the Court to declare a law unconstitutional must show that there is a clear and unequivocal breach of the Constitution, not merely a doubtful, speculative or argumentative one; otherwise, the petition must fail.10 In this case, petitioner failed to justify why RA 9369 and the assailed provisions should be declared unconstitutional. RA 9369 does not violate Section 26(1), Article VI of the Constitution Petitioner alleges that the title of RA 9369 is misleading because it speaks of poll automation but contains substantial provisions dealing with the manual canvassing of election returns. Petitioner also alleges that Sections 34, 37, 38, and 43 are neither embraced in the title nor germane to the subject matter of RA 9369. Both the COMELEC and the OSG maintain that the title of RA 9369 is broad enough to encompass topics which deal not only with the automation process but with everything related to its purpose encouraging a transparent, credible, fair, and accurate elections. The constitutional requirement that "every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof" has always been given a practical rather than a technical construction.11 The requirement is satisfied if the title is comprehensive enough to include subjects related to the general purpose which the statute seeks to achieve.12 The title of a law does not have to be an index of its contents and will suffice if the matters embodied in the text are relevant to each other and may be inferred from the title.13 Moreover, a title which declares a statute to be an act to amend a specified code is sufficient and the precise nature of the amendatory act need not be further stated.14 RA 9369 is an amendatory act entitled "An Act Amending Republic Act No. 8436, Entitled An Act Authorizing the Commission on Elections to Use an Automated Election System in the May 11, 1998 National or Local Elections and in Subsequent National and Local Electoral Exercises, to Encourage Transparency, Credibility, Fairness and Accuracy of Elections, Amending for the Purpose Batas Pambansa Blg. 881, as Amended, Republic Act No. 7166 and Other Related Election Laws, Providing Funds Therefor and For Other Purposes." Clearly, the subject matter of RA 9369 covers the amendments to RA 8436, Batas Pambansa Blg. 881 (BP 881),15 Republic Act No. 7166 (RA 7166),16 and other related election laws to achieve its purpose of promoting transparency, credibility, fairness, and accuracy in the elections. The provisions of RA 9369 assailed by petitioner deal with amendments to specific provisions of RA 7166 and BP 881, specifically: (1) Sections 34, 37 and 38 amend Sections 26, 30 and 15 of RA 7166, respectively; and (2) Section 43 of RA 9369 amends Section 265 of BP 881. Therefore, the assailed provisions are germane to the subject matter of RA 9369 which is to amend RA 7166 and BP 881, among others. Sections 37 and 38 do not violate Section 17, Article VI and Paragraph 7, Section 4, Article VII of the Constitution Petitioner argues that Sections 37 and 38 violate the Constitution by impairing the powers of the Presidential Electoral Tribunal (PET) and the Senate Electoral Tribunal (SET). According to petitioner, under the amended provisions, Congress as the National Board of Canvassers for the election of President and Vice President (Congress), and the COMELEC en banc as the National Board of Canvassers (COMELEC en banc), for the election of Senators may now entertain pre-proclamation cases in the election of the President, Vice President, and Senators. Petitioner concludes that in entertaining pre-proclamation cases, Congress and the COMELEC en banc undermine the independence and encroach upon the jurisdiction of the PET and the SET. The COMELEC maintains that the amendments introduced by Section 37 pertain only to the adoption and application of the procedures on pre-proclamation controversies in case of any discrepancy, incompleteness, erasure or alteration in the certificates of canvass. The COMELEC adds that Section 37 does not provide that Congress and the COMELEC en banc may now entertain pre-proclamation cases for national elective posts.
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OSG argues that the Constitution does not prohibit pre-proclamation cases involving national elective posts. According to the OSG,

only Section 15 of RA 716617 expressly disallows pre-proclamation cases involving national elective posts but this provision was subsequently amended by Section 38 of RA 9369. In Pimentel III v. COMELEC,18 we already discussed the implications of the amendments introduced by Sections 37 and 38 to Sections 15 and 3019 of RA 7166, respectively and we declared: Indeed, this Court recognizes that by virtue of the amendments introduced by Republic Act No. 9369 to Sections 15 and 30 of Republic Act No. 7166, pre-proclamation cases involving the authenticity and due execution of certificates of canvass are now allowed in elections for President, Vice-President, and Senators. The intention of Congress to treat a case falling under Section 30 of Republic Act No. 7166, as amended by Republic Act No. 9369, as a preproclamation case is apparent in the fourth paragraph of the said provision which adopts and applies to such a case the same procedure provided under Sections 17, 18, 19 and 20 of Republic Act No. 7166 on pre-proclamation controversies. In sum, in [the] elections for President, Vice-President, Senators and Members of the House of Representatives, the general rule is still that pre-proclamation cases on matters relating to the preparation, transmission, receipt, custody and appreciation of election returns or certificates of canvass are still prohibited. As with other general rules, there are recognized exceptions to the prohibition, namely: (1) correction of manifest errors; (2) questions affecting the composition or proceeding of the board of canvassers; and (3) determination of the authenticity and due execution of certificates of canvass as provided in Section 30 of Republic Act No. 7166, as amended by Republic Act No. 9369.20 In the present case, Congress and the COMELEC en banc do not encroach upon the jurisdiction of the PET and the SET. There is no conflict of jurisdiction since the powers of Congress and the COMELEC en banc, on one hand, and the PET and the SET, on the other, are exercised on different occasions and for different purposes. The PET is the sole judge of all contests relating to the election, returns and qualifications of the President or Vice President. The SET is the sole judge of all contests relating to the election, returns, and qualifications of members of the Senate. The jurisdiction of the PET and the SET can only be invoked once the winning presidential, vice presidential or senatorial candidates have been proclaimed. On the other hand, under Section 37, Congress and the COMELEC en banc shall determine only the authenticity and due execution of the certificates of canvass. Congress and the COMELEC en banc shall exercise this power before the proclamation of the winning presidential, vice presidential, and senatorial candidates. Section 43 does not violate Section 2(6), Article IX-C of the Constitution Both petitioner and the COMELEC argue that the Constitution vests in the COMELEC the "exclusive power" to investigate and prosecute cases of violations of election laws. Petitioner and the COMELEC allege that Section 43 is unconstitutional because it gives the other prosecuting arms of the government concurrent power with the COMELEC to investigate and prosecute election offenses.21 We do not agree with petitioner and the COMELEC that the Constitution gave the COMELEC the "exclusive power" to investigate and prosecute cases of violations of election laws. Section 2(6), Article IX-C of the Constitution vests in the COMELEC the power to "investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices." This was an important innovation introduced by the Constitution because this provision was not in the 193522 or 197323 Constitutions.24 The phrase "[w]here appropriate" leaves to the legislature the power to determine the kind of election offenses that the COMELEC shall prosecute exclusively or concurrently with other prosecuting arms of the government. The grant of the "exclusive power" to the COMELEC can be found in Section 265 of BP 881, which provides: Sec. 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted. (Emphasis supplied) This was also an innovation introduced by BP 881. The history of election laws shows that prior to BP 881, no such "exclusive power" was ever bestowed on the COMELEC.25 We also note that while Section 265 of BP 881 vests in the COMELEC the "exclusive power" to conduct preliminary investigations and prosecute election offenses, it likewise authorizes the COMELEC to avail itself of the assistance of other prosecuting arms of the government. In the 1993 COMELEC Rules of Procedure, the authority of the COMELEC was subsequently qualified and explained.26 The 1993 COMELEC Rules of Procedure provides: Rule 34 - Prosecution of Election Offenses

Sec. 1. Authority of the Commission to Prosecute Election Offenses. - The Commission shall have the exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided by law. (Emphasis supplied) It is clear that the grant of the "exclusive power" to investigate and prosecute election offenses to the COMELEC was not by virtue of the Constitution but by BP 881, a legislative enactment. If the intention of the framers of the Constitution were to give the COMELEC the "exclusive power" to investigate and prosecute election offenses, the framers would have expressly so stated in the Constitution. They did not. In People v. Basilla,27 we acknowledged that without the assistance of provincial and city fiscals and their assistants and staff members, and of the state prosecutors of the Department of Justice, the prompt and fair investigation and prosecution of election offenses committed before or in the course of nationwide elections would simply not be possible.28 In COMELEC v. Espaol,29 we also stated that enfeebled by lack of funds and the magnitude of its workload, the COMELEC did not have a sufficient number of legal officers to conduct such investigation and to prosecute such cases.30 The prompt investigation, prosecution, and disposition of election offenses constitute an indispensable part of the task of securing free, orderly, honest, peaceful, and credible elections.31 Thus, given the plenary power of the legislature to amend or repeal laws, if Congress passes a law amending Section 265 of BP 881, such law does not violate the Constitution. Section 34 does not violate Section 10, Article III of the Constitution assails the constitutionality of the provision which fixes the per diem of poll watchers of the dominant majority and dominant minority parties at Pon election day. Petitioner argues that this violates the freedom of the parties to contract and their right to fix the terms and conditions of the contract they see as fair, equitable and just. Petitioner adds that this is a purely private contract using private funds which cannot be regulated by law. The OSG argues that petitioner erroneously invoked the non-impairment clause because this only applies to previously perfected contracts. In this case, there is no perfected contact and, therefore, no obligation will be impaired. Both the COMELEC and the OSG argue that the law is a proper exercise of police power and it will prevail over a contract. According to the COMELEC, poll watching is not just an ordinary contract but is an agreement with the solemn duty to ensure the sanctity of votes. The role of poll watchers is vested with public interest which can be regulated by Congress in the exercise of its police power. The OSG further argues that the assurance that the poll watchers will receive fair and equitable compensation promotes the general welfare. The OSG also states that this was a reasonable regulation considering that the dominant majority and minority parties will secure a copy of the election returns and are given the right to assign poll watchers inside the polling precincts. There is no violation of the non-impairment clause. First, the non- impairment clause is limited in application to laws that derogate from prior acts or contracts by enlarging, abridging or in any manner changing the intention of the parties.32 There is impairment if a subsequent law changes the terms of a contract between the parties, imposes new conditions, dispenses with those agreed upon or withdraws remedies for the enforcement of the rights of the parties.33 As observed by the OSG, there is no existing contract yet and, therefore, no enforceable right or demandable obligation will be impaired. RA 9369 was enacted more than three months prior to the 14 May 2007 elections. Hence, when the dominant majority and minority parties hired their respective poll watchers for the 14 May 2007 elections, they were deemed to have incorporated in their contracts all the provisions of RA 9369. Second, it is settled that police power is superior to the non-impairment clause.34 The constitutional guaranty of nonimpairment of contracts is limited by the exercise of the police power of the State, in the interest of public health, safety, morals, and general welfare of the community. Section 8 of COMELEC Resolution No. 140535 specifies the rights and duties of poll watchers: The watchers shall have the right to stay in the space reserved for them inside the polling place. They shall have the right to witness and inform themselves of the proceedings of the board; to take notes of what they may see or hear, to take photographs of the proceedings and incidents, if any, during the counting of votes, as well as the election returns, tally board and ballot boxes; to file a protest against any irregularity or violation of law which they believe may have been committed by the board or by any of its members or by any person; to obtain from the board a certificate as to the filing of such protest and/or of the resolution thereon; to read the ballots after they shall have been read by the chairman, as well as the election returns after they shall have been completed and signed by the members of the board without touching them, but they shall not speak to any member of the board, or to any voter, or among themselves, in such a manner as would disturb the proceedings of the board; and to be furnished, upon request, with a certificate of votes for the candidates, duly signed and thumbmarked by the chairman and all the members of the board of election inspectors. Additionally, the poll watchers of the dominant majority and minority parties in a precinct shall, if available, affix their signatures and thumbmarks on the election returns for that precinct.36 The dominant majority and minority parties

shall also be given a copy of the certificates of canvass37 and election returns38 through their respective poll watchers. Clearly, poll watchers play an important role in the elections. Moreover, while the contracting parties may establish such stipulations, clauses, terms, and conditions as they may deem convenient, such stipulations should not be contrary to law, morals, good customs, public order, or public policy.39 In Beltran v. Secretary of Health,40 we said: Furthermore, the freedom to contract is not absolute; all contracts and all rights are subject to the police power of the State and not only may regulations which affect them be established by the State, but all such regulations must be subject to change from time to time, as the general well-being of the community may require, or as the circumstances may change, or as experience may demonstrate the necessity.41 (Emphasis supplied) Therefore, assuming there were existing contracts, Section 34 would still be constitutional because the law was enacted in the exercise of the police power of the State to promote the general welfare of the people. We agree with the COMELEC that the role of poll watchers is invested with public interest. In fact, even petitioner concedes that poll watchers not only guard the votes of their respective candidates or political parties but also ensure that all the votes are properly counted. Ultimately, poll watchers aid in fair and honest elections. Poll watchers help ensure that the elections are transparent, credible, fair, and accurate. The regulation of the per diem of the poll watchers of the dominant majority and minority parties promotes the general welfare of the community and is a valid exercise of police power. WHEREFORE, we DISMISS the petition for lack of merit. SO ORDERED.

G.R. No. 115962

February 15, 2000

DOMINADOR REGALADO, JR., petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. MENDOZA, J.: This is a petition for review on certiorari of the decision1 of the Court of Appeal affirming the ruling of the Regional Trial Court, Branch 38, Negros Oriental, which found petitioner Dominador Regalado, Jr. guilty of violating 261(h) of the Batas Pambansa Blg. 881 (Omnibus Election Code), as amended.2 The Information against petitioner alleged: That on or about January 25, 1988, at Tanjay, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, said accused DOMINADOR S. REGALADO, JR., [as] OIC Mayor of the Municipality of Tanjay, Negros Oriental, did then and there unlawfully, feloniously and illegally TRANSFER one MRS. EDITHA P. BARBA, a permanent Nursing Attendant, Grade I, in the Office of the [M]ayor of Tanjay, from her permanent assignment to a very remote Barangay of Sto. Nio during the election period and without obtaining prior permission or clearance from the Commission on Elections, Manila. The evidence for the prosecution shows that on January 15, 1987, complainant Editha Barba was appointed nursing attendant in the Rural Health Office of Tanjay, Negros Oriental by then Officer-In-Charge Mayor Rodolfo Navarro.3 Although she was detailed at, and received her salary from, the Office of the Mayor, she reported for work at the Puriculture Center, Poblacion, Tanjay. As Navarro decided to run for mayor of Tanjay in the January 18, 1988 elections, petitioner Dominador Regalado, Jr. was appointed substitute OIC-Mayor. His brother, Arturo S. Regalado, was also a mayoralty candidate. Petitioner's brother won in the elections. Four days later, on January 22, 1988, petitioner, still sitting as OIC-Mayor, issued a memorandum to Barba informing her that effective January 25, 1988, she would be reassigned from Poblacion, Tanjay to Barangay Sto. Nio,4 about 25 kilometers from Poblacion.5 The transfer was made without the prior approval of the Commission on Elections (COMELEC). Barba continued to report at the Puriculture Center, Poblacion, Tanjay, however. Hence, on February 18, 1988, petitioner issued another memorandum to Barba directing her to explain, within 72 hours, why she refuses to comply with the memorandum of January 22, 1988.6 In response, Barba, on February 21, 1988, sent a letter to petitioner protesting her transfer which she contended was illegal.7 She then filed, on February 16, 1988, a complaint8 against petitioner for violation of 261(h) of the Omnibus Election Code, as amended, and after preliminary investigation, the Provincial Election Officer of Negros Oriental, Atty. Gerardo Lituanas, charged petitioner before the Regional Trial Court, Branch 38, Negros Oriental.
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On September 27, 1991, the lower court rendered a decision, the dispositive portion of which states:9 Finding the accused guilty beyond reasonable doubt of a violation of Section 261, paragraph (h), of the Omnibus Election Code, the accused Dominador S. Regalado, Jr., is sentenced to undergo imprisonment for an indeterminate period ranging from one (1) year minimum to three (3) years maximum without the benefit of probation and to suffer disqualification to hold public office and deprivation of the right of suffrage. He is further sentenced to indemnify the offended party, Editha P. Barba, as civil liability arising from the offense charged[,] in the sum of Five Hundred (P500.00) Pesos . . . . for moral damages. As petitioner's motion for reconsideration was denied,10 he elevated the matter to the Court of Appeals, which, on February 3, 1994, affirmed the lower court's decision. He moved for a reconsideration, but his motion was likewise denied, hence this appeal. Petitioner alleges that I.THE PUBLIC RESPONDENT FAILED TO CONSIDER THE ORGANIZATIONAL STRUCTURE OF THE RURAL HEALTH UNIT OF THE MUNICIPALITY OF TANJAY, NEGROS ORIENTAL, VIZ-A-VIZ, THE LETTERS OF APPOINTMENT OF PRIVATE RESPONDENT. II.THE MEMORANDUM DID NOT EFFECT A TRANSFER, BUT MERELY A "RE-ASSIGNMENT" OF PRIVATE RESPONDENT. III.EXIGENCIES OF SERVICE WERE NOT ACCOUNTED FOR.11 Petitioner's contentions have no merit. First. The two elements of the offense prescribed under 261(h) of the Omnibus Election Code, as amended, are: (1) a public officer or employee is transferred or detailed within the election period as fixed by the COMELEC, and

(2) the transfer or detail was effected without prior approval of the COMELEC in accordance with its implementing rules and regulations.12 The implementing rule involved is COMELEC Resolution No. 1937,13 which pertinently provides: Sec. 1.Prohibited Acts. xxx xxx xxx

Effective November 19, 1987 up to February 17, 1988, no public official shall make or cause any transfer or detail whatsoever of any officer or employee in the Civil Service, including public school teachers, except upon prior approval of the Commission. Sec. 2. Request for authority of the Commission. Any request for . . . . approval to make or cause any transfer or detail must be submitted in writing to the Commission stating all the necessary data and reason for the same which must satisfy the Commission that the position is essential to the proper functioning of the office or agency concerned, and that the . . . . filling thereof shall not in any manner influence the election. Petitioner admits that he issued the January 22, 1988 memorandum within the election period set in Resolution No. 1937 without the prior approval of the COMELEC. He contends, however, that he did not violate 261(h) because he merely effected a "re-assignment" and not a "transfer" of personnel by moving Barba from one unit or place of designation (Poblacion, Tanjay) to another (Sto. Nio, Tanjay) of the same office, namely, the Rural Health Office of Tanjay, Negros Oriental.14 In support of his contention, he relies upon the following portions of 24 of P.D. No. 807 (Civil Service Law):15 (c) Transfer a movement from one position to another which is of equivalent rank, level, or salary without break of service involving the issuance of an appointment. xxx xxx xxx

(g) Reassignment an employee may be reassigned from one organizational unit to another in the same agency. Provided, that such reassignment shall not involve a reduction in rank, status, or salary. Petitioner, however, ignores the rest of 24(c) which provides that: [A transfer] shall not be considered disciplinary when made in the interest of the public service, in which case, the employee concerned shall be informed of the reasons therefor. If the employee believes that there is no justification for the transfer, he may appeal his case to the Commission. The transfer may be from one department or agency to another or from one organizational unit to another in the same department or agency: Provided, however, That any movement from the non-career service to the career service shall not be considered a transfer. (Emphasis added). Thus, contrary to petitioner's claim, a transfer under 24(c) of P.D. No. 807 in fact includes personnel movement from one organizational unit to another in the same department or agency. Moreover, 261(h) of B.P. No. 881, as amended, provides that it is an election offense for Any public official who makes or causes any transfer or detail whatever of any officer or employee in the civil service including public school teachers, within the election period except upon prior approval of the Commission. (Emphasis added). As the Solicitor General notes, "the word transfer or detail, as used [above], is modified by the word whatever. This indicates that any movement of personnel from one station to another, whether or not in the same office or agency, during the election is covered by the prohibition."16 Finally, the memorandum itself issued by petitioner to Barba on January 22, 1988 stated that the latter was being "transferred," thus:17 Effective Monday, January 25, 1988, your assignment as Nursing Attendant will be transferred from RHU I Tanjay Poblacion to Barangay Sto. Nio, this Municipality. You are hereby directed to perform the duties and functions as such immediately in that area. For strict compliance.(Emphasis added)

Second. Petitioner next contends that his order to transfer Barba to Barangay Sto. Nio was prompted by the lack of health service personnel therein and that this, in effect, constitutes sufficient justification for his non-compliance with 261(h).18 The contention has no merit. It may well be that Barangay Sto. Nio in January 1988 was in need of health service personnel. Nonetheless, this fact will not excuse the failure of petitioner to obtain prior approval from the COMELEC for the movement of personnel in his office. Indeed, appointing authorities can transfer or detail personnel as the exigencies of public service require.19However, during election period, as such personnel movement could be used for electioneering or even to harass subordinates who are of different political persuasion, 261(h) of the Omnibus Election Code, as amended, prohibits the same unless approved by the COMELEC. Third. The award of P500,000.00 as moral damages to Barba must be deleted. Under 264, par. 1 of the Omnibus Election Code, as amended, the only imposable penalties for the commission of any of the election offenses thereunder by an individual are imprisonment of not less than one year but not more than six years [which] shall not be subject to probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage. WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the MODIFICATION that the award of moral damages is deleted. SO ORDERED.
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P.E.T. Case No. 001

February 13, 1996

MIRIAM DEFENSOR-SANTIAGO, protestant, vs. FIDEL VALDEZ RAMOS, protestee. RESOLUTION In her motion of 16 August 1995, reiterated in her Comment of 29 August 1995, Protestant Miriam DefensorSantiago prayed that the revision of ballots in the remaining precincts of the pilot areas be dispensed with and the revision process in the pilot areas be deemed completed. We deferred action on that motion and required the Protestant and the Protestee to submit their respective memoranda on the issue of whether this case had been rendered moot by the election of the Protestant as a Senator in the May 1995 election and her assumption of office as such on 30 June 1995. The Protestant answers this issue in the negative. Relying on Sibulo vda. de De Mesa vs. Mencias,1 Lomugdang vs. Javier,2 and De Castro vs. Ginete,3 she asserts that an election contest involves not only an adjudication and settlement of the private interests of the rival candidates, but more importantly, the paramount need to dispel, once and for all, the uncertainty that beclouds the true choice of the electorate. Hence, it is imbued with public interest and should be pursued to its final conclusion to determine the bona fide winner. She further asserts that an election case may be rendered moot only if the term of the contested office has expired,4 thus her election as Senator and assumption of office as such cannot, under the rule laid down in Moraleja vs. Relova,5 be construed as an abandonment of the instant protest. Finally, she alleges that this Court has departed from the orthodox view that a case should be dismissed if it has been mooted.6 For his part, the Protestee submits that there is strong legal basis for this Tribunal to rule that the Protestant is deemed to have abandoned the instant protest, in light of the ruling in Dimaporo vs. Mitra7 which construed Section 67, Article IX of B.P. Blg. 881 (Omnibus Election Code).8 He submits, however, that public interest requires that this protest be resolved on the merits considering that: (a) it involves a matter of paramount and grave public interest; and (b) it was filed merely to keep Protestant Santiago in the limelight in preparation for her Senatorial campaign. He likewise claims that a resolution on the merits would confirm his victory in the 11 May 1992 presidential election and prove that the instant protest is unfounded. Further more, it would establish guiding and controlling principles or doctrines with respect to presidential election protest cases, thereby educating the bench and the bar and preventing the indiscriminate filing of baseless protest cases. We cannot subscribe to the view of the Protestee that by filing her certificate of candidacy for Senator Protestant Santiago ipso facto forfeited her claim to the office of President pursuant to Section 67 of B.P. Blg. 881. Plainly, the said section applies exclusively to an incumbent elective official who files a certificate of candidacy for any office "other than the one he is holding in a permanent capacity." Even more plain is that the Protestant was not the incumbent President at the time she filed her certificate of candidacy for Senator nor at any time before that. Thus, the holding in Dimaporo does not apply to the Protestant. Neither do we find any convincing logic to the Protestee's proposition that this case should nevertheless be resolved on the merits because its filing was done in bad faith, i.e., merely to keep the Protestant in the limelight in preparation for her Senatorial campaign. If that were so, then public interest would be served if this case were put to an abrupt end after the Protestant won a seat in the Senate. Finally, neither do we find any cogent nor compelling reason to proceed with this case, in the event that we find it to be moot, simply to establish guiding and controlling principles or doctrines with respect to election protests involving the office of the President or the Vice-President. I. The key then to the resolution of the aforestated issue is the consideration of public interest and public policy and their encompassing effects on election cases which have been unequivocally expressed in the cases cited by the Protestant. In Sibulo vda. de De Mesa vs. Mencias,9 this Court stated: It is axiomatic that an election contest, involving as it does not only the adjudication and settlement of the private interests of the rival candidates but also the paramount need of dispelling once and for all the uncertainty that beclouds the real choice of the electorate with respect to who shall discharge the prerogatives of the offices within their gift, is a proceeding imbued with public interest which raises it onto a plane over and above ordinary civil actions. For this reason, broad perspectives of public policy impose upon courts the imperative duty to ascertain by all means within their command who is the real candidate elected in as expeditious a manner as possible, without being fettered by technicalities and procedural barriers to the end that the will of the people may not be frustrated (Ibasco vs. Ilao, et al., G.R. L-17512, December 29, 1960; Reforma vs. De Luna, G.R. L-13242, July 31, 1958). So inextricably intertwined are the interests of the contestants and those of the public that there can be no gainsaying the logic of the proposition that even the voluntary cessation in office of the protestee not only does not ipso facto divest him or the character of

an adversary in the contest inasmuch as he retains a party interest to keep his political opponent out of the office and maintain therein his successor, but also does not in any manner impair or detract from the jurisdiction of the court to pursue the proceeding to its final conclusion (De Los Angeles vs. Rodriguez, 46 Phil. 595, 597; Salcedo vs. Hernandez, 62 Phil. 584, 587; Galves vs. Maramba, G.R. L-13206). Upon the same principle, the death of the protestee De Mesa did not abate the proceedings in the election protest filed against him, and it may be stated as a rule that an election contest survives and must be prosecuted to final judgment despite the death of the protestee. (In Silverio vs. Castro, 19 SCRA 520 [1967], where the trial court proceeded with the trial of an election protest and decided it even if the protestee had already died and his Vice-Mayor had assumed office by succession, this Court, instead of dismissing the appeal brought on behalf of the deceased protestee, required the Vice-Mayor to intervene on the side of the appellant) In Lomugdang vs. Javier,10 this Court declared: Determination of what candidate has been in fact elected is a matter clothed with public interest, wherefore, public policy demands that an election contest, duly commenced, be not abated by the death of the contestant. We have squarely so ruled in Sibulo vda. de Mesa vs. Judge Mencias, G.R. No. L-24583, October 26, 1966, in the same spirit that led this Court to hold that the ineligibility of the protestant is not a defense (Caesar vs. Garrido, 53 Phil. 57), and that the protestee's cessation in office is not a ground for the dismissal of the contest nor detract the Court's jurisdiction to decide the case (Angeles vs. Rodriguez, 46 Phil. 595; Salcedo vs. Hernandez, 62 Phil. 584). In the same Sibulo case, already cited, this Court likewise ruled that by virtue of Section 7, Republic Act 2264, the vice-mayor elect has the status of a real party in interest in the continuation of the proceedings and is entitled to intervene therein. For if the protest succeeds and the protestee is unseated, the vice mayor succeeds to the office of mayor that becomes vacant if the duly elected cannot assume the post. In Moraleja vs. Relova,11 this Court ruled: As to the contention that by accepting such appointment as Technical Assistant, protestant has abandoned his protest, all that need be said is that once the court has acquired jurisdiction over an election contest, the public interest involved demands that the true winner be known without regard to the wishes or acts of the parties, so much so that there can be no default, compromise nor stipulation of facts in this kind of cases. (Francisco, How To Try Election Cases, p. 163, citing Civilio v. Tomacruz, 62 Phil. 689). In the same manner that the acceptance by the protestee of an appointment to another position is not a ground for dismissal of the protest (Philippine Law on Elections by Martin, 1970 ed., pp. 258-259, citing Calvo v. Maramba, G.R. No. L-13206, January 7, 1918) like the resignation of the protestee from the contested office (Angeles v. Rodriguez, 46 Phil. 595), simply because it is of public interest that the real winner be known, neither can the acceptance of a more or less temporary employment, such as that of a technical assistant of the ViceGovernor, which is a primarily confidential position, be considered as inconsistent with protestant's determination to protect and pursue the public interest involved in the matter of who is the real choice of the electorate. In such instances, the plight of protestant may be viewed in the same light as that of an employee who has been illegally dismissed and who, to find means to support himself and family while he prosecutes his case for reinstatement, accepts a temporary employment elsewhere. Such employee is not deemed to have abandoned the position he seeks to recover. (Tan v. Gimenez, et al. G.R. No. L-12525, February 19, 1960, 107 Phil. 17; Potot v. Bagano, G.R. No. L-2456, January 25, 1949, 82 Phil. 679). Of course, the case of protestant who accepts a permanent appointment to a regular office could be different, but We are not ruling on it here. In De Castro vs. Ginete,12 this Court stated: The purpose of an election protest is to ascertain whether the candidate proclaimed elected by the board of canvassers is really the lawful choice of the electorate. What is sought in an election protest is the correction of the canvass of the votes, which is the basis of the proclamation of the winning candidate. An election contest involves a public office in which the public has an interest. Certainly, the act of a losing candidate of recognizing the one who is proclaimed the winner should not bar the losing candidate from questioning the validity of the election of the winner in the manner provided by law. The factual milieu in these cases is not on all fours with the instant protest. In Sibulo vda. de De Mesa, as in the later case of Silverio vs. Castro,13 the protestee had been proclaimed the winning mayoralty candidate and had assumed office, and then died during the pendency of the election protest. While in Lomugdang, it was the protestant who died during the pendency of the protest. In Moraleja, the election protest survived the protestant's acceptance of temporary employment during the pendency of his election protest. Likewise, in De los Angeles vs. Rodriguez,14 cited in Sibulo vda. de De Mesa, an election protest was continued despite the resignation from office of the protestee.

Finally, in De Castro, the only issue presented was whether the protest should be dismissed on the ground ofestoppel. In this proceeding, the protestant congratulated the protestee after the latter was proclaimed the winner by the board of canvassers and even exhorted those present during the inauguration and installation into office of the protestee to support the latter's administration. May the above dicta apply to the case of Protestant Santiago who assumed the office of Senator after her election as such in the 8 May 1995 election? This question was impliedly raised but not resolved in Moraleja. For after holding that the acceptance by the protestant therein of a temporary appointment during the pendency of his protest did not amount to an abandonment thereof, nor could it be considered inconsistent with his determination to protect and pursue the public interest involved in the election protest, this Court noted: "Of course, the case of a protestant who accepts a permanent appointment to a regular office could be different, but We are not ruling on it here."15 Indeed, it would be entirely different where the protestant pursued the new position through a popular election, as in the case of Protestant Santiago who filed a certificate of candidacy for Senator in the 8 May 1995 election, campaigned for such office, and submitted herself to be voted upon. She knew that the term of office of the Senators who would then be elected would be six years, to commence at noon on the thirtieth day of June next following their election16 and to end at noon of 30 June 2001. Knowing her high sense of integrity and candor, it is most unlikely that during her campaign, she promised to serve the electorate as Senator, subject to the outcome of this protest. In short, she filed her certificate of candidacy for the Senate without any qualification, condition, or reservation. In so doing, she entered into a political contract with the electorate that if elected, she would assume the office of Senator, discharge its functions and serve her constituency as such for the term for which she was elected. These are givens which are in full accord with the principle enshrined in the Constitution that, public office is a public trust, and public officers and employees must at all times be accountable to the people and serve them with utmost responsibility, integrity, loyalty and efficiency.17 Indeed, it has been aptly said: It is impossible that government shall be carried on, and the functions of civil society exercised, without the aid and intervention of public servants or officers, and every person, therefore, who enters into civil society and avails himself of the benefits and protection of the government, must owe to this society, or, in other words, to the public, at least a social duty to bear his share of the public burdens, by accepting and performing, under reasonable circumstances, the duties of those public offices to which he may be lawfully chosen.18 In this jurisdiction, an elected public official may even be held criminally liable should he refuse to discharge an elective office.19 The term of office of the Senators elected in the 8 May 1995 election is six years, the first three of which coincides with the last three years of the term of the President elected in the 11 May 1992 synchronized elections. The latter would be Protestant Santiago's term if she would succeed in proving in the instant protest. that she was the true winner in the 1992 elections. In assuming the office of Senator then, the Protestant has effectively abandoned or withdrawn this protest, or at the very least, in the language of Moraleja, abandoned her "determination to protect and pursue the public interest involved in the matter of who is the real choice of the electorate." Such abandonment or withdrawal operates to render moot the instant protest. Moreover, the dismissal of this protest would serve public interest as it would dissipate the aura of uncertainty as to the results of the 1992 presidential election, thereby enhancing the all too crucial political stability of the nation during this period of national recovery. It must also be stressed that under the Rules of the Presidential Electoral Tribunal, an election protest may be summarily dismissed, regardless of the public policy and public interest implications thereof, on the following grounds: (1) The petition is insufficient in form and substance; (2) The petition is filed beyond the periods provided in Rules 14 and 15 hereof; (3) The filing fee is not paid within the periods provided for in these Rules; (4) The cash deposit, or the first P100,000.00 thereof, is not paid within 10 days after the filing of the protest; and (5) The petition or copies thereof and the annexes thereto filed with the Tribunal are not clearly legible.20 Other grounds for a motion to dismiss, e.g., those provided in the Rules of Court which apply in a suppletory character, 21 may likewise be pleaded as affirmative defenses in the answer. After which, the Tribunal may, in its discretion, hold a preliminary hearing on such grounds.22 In sum, if an election protest may be dismissed on technical grounds, then it must be, for a decidedly stronger reason, if it has become moot due to its abandonment by the Protestant.

II. There is yet another reason why this case should now be dismissed. This Tribunal cannot close its eyes to the fact that the Protestant has decided to waive the revision of the remaining unrevised ballots from 4,017 precincts out of the 17,527 precincts of the designated three pilot areas. This is an unabashed reversal from her original stand in her Motion and Manifestation dated 18 October 1993. Taking this into account, this Tribunal declared in its resolution of 21 October 1993: After deliberating on the foregoing pleadings and the arguments of the parties, the Tribunal rules for the Protestant insofar as the revision of the remaining ballot boxes from her pilot areas are concerned, and against the immediate application of Rule 61 of the Rules of the Tribunal to the Protestee in respect of the Counter-Protest. At this stage of the proceedings in this case it cannot be reasonably determined whether the revised ballots are "considerable" enough to establish a trend either in favor of or against the Protestant as would justify an appropriate action contemplated in Rule 61 of the Rules of the Tribunal, or whether the unrevised ballots from said areas would not, in the language of the Protestant, "materially affect the result of the representative sample of the ballot boxes so far revised." As to the 1,300 ballot boxes from Makati, the proper time to raise the objections to the ballot boxes and its contents would be during the revision stage. Consequently, we resolved therein to: A. ORDER the revision of the remaining unrevised ballot boxes enumerated in the aforequoted paragraph A of the 5 October 1993 Resolution and for that purpose to DIRECT the Acting Clerk of Court of the Tribunal to collect said ballot boxes and other election documents and paraphernalia from their respective custodians in the event that their revisions in connection with other election protests in which they are involved have been terminated, and if such revisions are not yet completed, to coordinate with the appropriate tribunal or court in which such other election protests are pending and which have already obtained custody of the ballot boxes and started revision with the end in view of either seeking expeditious revisions in such other election protests or obtaining the custody of the ballot boxes and related election documents and paraphernalia for their immediate delivery to the Tribunal; and B. REQUIRE the Protestant to inform the Tribunal, within ten (10) days from receipt hereof, if after the completion of the revision of the ballots from her pilot areas she would present evidence in connection therewith. Until the present, however, the Protestant has not informed the Tribunal whether after the completion of the revision of the ballots from her pilot areas, she still intends to present evidence in connection therewith. This failure then, is nothing short of a manifest indication that she no longer intends to do so. It is entirely irrelevant at this stage of the proceedings that the Protestant's revisors discovered in the course of the revisions alleged irregularities in 13,510 out of the 17,525 contested precincts in the pilot areas and have objected to thousands of ballots cast in favor of the Protestee. Revision is merely the first stage, and not the alpha and omega, of an election contest. In no uncertain terms then, this Tribunal declared in its resolution of 18 March 1993 that: Protestant knows only too well, being a lawyer and a former judge herself, that the revision phase of her protest is but the first stage in the resolution of her electoral protest and that the function of the revisors is very limited. In her 12 February 1993 Comment on Protestee's 5 February 1993 Urgent Motion for the issuance of a resolution which, inter alia, would clarify that revisors may observe the objections and/or claims made by the revisors of the other party as well as the ballots subject thereof, and record such observations in a form to be provided for that purpose, Protestant unequivocally stated: 8. Further, the principle and plan of the RPET [Rules of the Presidential Electoral Tribunal] is to subdivide the entire election contest into various stages. Thus, the first stage is the Revision Proper. Second is the technical examination if so desired by either party. Third is the reception of evidence. And Fourth, is the filing of parties' memoranda. and described the function of the revisors as "solely to examine and segregate the ballots according to which ballots they would like to contest or object (contested ballots) and those which they admit or have no objections (uncontested ballots)." Indeed, revisors do not have any judicial discretion; their duties are merely clerical in nature (Hontiveros vs. Altavas, 24 Phil. 632 [1913]). In fact, their opinion or decision on the more crucial or critical matter of what ballots are to be contested or not does not even bind the Tribunal (Yalung vs. Atienza, 52 Phil. 781 [1929]; Olano vs. Tibayan, 53 Phil. 168 [1929]). Thus, no undue importance may be given to the revision phase of an election contest. It can never serve as a logical or an acceptable basis for the conclusion that massive fraud or irregularities were committed during an election or that a Protestant had won in said election. If that were so, a Protestant may contest all ballot boxes and, in the course of the revision thereof, object for any imagined ground whatsoever, even if the same be totally unfounded and ridiculous to all ballots credited to the Protestee; and then, at the end of the day, said Protestant may even

announce to the whole world that contrary to what is reflected in the election returns, Protestee had actually lost the elections. All told, a dismissal of this election protest is inevitable. III. However, three Members of the Tribunal outrightly disagree with the foregoing disquisitions. Hence, a reply to the important points they raise is in order. Mr. Justice Puno's perception that the majority would dismiss this "election protest as moot and academic on two (2) grounds: first, that the findings of irregularities made by the revisors of the protestant in the course of the revision of ballots in 13,510 contested precincts are entirely irrelevant; and second, she abandoned her protest when she filed her certificate of candidacy in the 8 May 1995 senatorial elections," is inaccurate. The dispositive portion of this resolution leaves no room for any doubt or miscomprehension that the dismissal is based on the ground that the protest "has been rendered moot and academic by its abandonment or withdrawal by the Protestant as a consequence of her election and assumption of office as Senator and her discharge of the duties and functions thereof." There is, therefore, ONLY ONE reason or ground why the protest has been rendered moot and academic, i.e., it has been abandoned or withdrawn. This was the very issue upon which the parties were required, in the resolution of 26 September 1995, to submit their respective memoranda. The majority neither conveyed, asserted nor even suggested, as Mr. Justice Puno has apparently understood, that this protest has become moot and academic because the finding of irregularities by the Protestant's revisors in the course of the revision of the ballots in 13,510 contested precincts in the pilot areas are "entirely irrelevant," and that the Protestant has abandoned this protest by filing a certificate of candidacy for the office of Senator in the 8 May 1995 elections. The majority's views on "irrelevancy" and "on the filing of the certificate of candidacy" are not the grounds themselves, but parts only of the arguments to strengthen the conclusion reached, i.e.,abandonment. Otherwise stated, in order to make the point crystal clear, the majority never held that the irrelevancy of the finding of irregularities is a ground why this protest has become moot and academic. It only declared that the Protestant's: (a) waiver of revision of the unrevised ballots from the remaining 4,017 contested precincts in the pilot areas; and (b) failure to comply with the resolution of 21 October 1995 requiring her to inform the Tribunal within ten days from notice if she would still present evidence after completion of the revision of the ballots from her pilot areas rendered such "findings" of irregularities entirely irrelevant considering the Tribunal's disquisitions on what revision is in its 18 March 1993 resolution. In his dissent, Mr. Justice Puno lifted the words "entirely irrelevant"; from the fourth paragraph under the heading "II" of this Resolution. It must, however, be stressed that the said paragraph is inexorably linked to the preceding two paragraphs relating to the above-mentioned waiver and non-compliance, which provide the major premises for the fourth paragraph; more concretely, the latter is nothing more than the logical conclusion which the major premises support. The reasons adduced by Mr. Justice Puno for the Protestant's turn-around are mere speculations. In any event, the protestant's possible "belief . . . that the contested ballots in 13,500 precincts when properly appreciated will sufficiently establish her electoral victory," cannot stand against her previous insistence to proceed with the revision of the remaining unrevised ballots and the aforementioned finding of the Tribunal in its resolution of 21 October 1993. The Tribunal is not to blame for "the slow pace of the protest," if at all she so believes in such a state of things. Neither can the thought of cutting costs be a valid reason. The Protestant knew from the outset that the revision of the ballots in the pilot areas was a crucial phase of this protest because, under Rule 61 of the Rules of the Tribunal, the protest could forthwith be dismissed if the Tribunal were convinced that she would probably fail to make out a case but only after examination of the ballots from the pilot areas and the evaluation of the evidence offered in connection therewith. It goes without saying that every ballot then in the pilot areas counts. Then too, it was never the view of the majority that the Protestant's filing of the certificate of candidacy for a seat in the Senate in the 8 May 1995 election was the sole and exclusive operative act for what Mr. Justice Puno perceives to be the majority's second ground why this protest has become moot and academic. To the majority, such filing was only the initial step in a series of acts performed by the Protestant to convincingly evince her abandonment of this protest, viz., campaigning for the office of Senator, assumption of such office after her election and her discharge of the duties and functions of the said office. Precisely, in the resolution of 26 September 1995, this Court directed the Protestant and the Protestee to submit their respective memoranda on the issue [o]f whether or not the protest has not been rendered moot and academic by the election of the Protestant as Senator and her subsequent assumption of office as such on 30 June 1995. (emphasis supplied) As to the concept of abandonment, Mr. Justice Puno and Mr. Justice Kapunan cite Black's Law Dictionary and the cases of Roebuck vs. Mecosta Country Road Commission,23 Dober vs. Ukase Inv. Co., 24 and McCall vs. Cull,25cited therein. We have turned to the primary sources of these cases, meticulously perused them, and found none materially significant to this protest.

The first two cases above refer to abandonment of property. Roebuck involved the issue of whether a roadway had been abandoned by the Mecosta Road Commission. The Court therein held that in order for there to be an abandonment of land dedicated to public use, two elements must concur, viz., (a) intention to relinquish the right or property, but without intending to transfer title to any particular person; and (b) the external act which such intention is carried into effect. While Dober, on the issue of whether the plaintiff therein abandoned a certain property, quoted Corpus Juris that the intention to abandon must be determined from the facts and circumstances of the case. There must be a clear, unequivocal and decisive act of the party to constitute abandonment in respect of a right secured an act done which shows a determination in the individual not to have a benefit which is designed for him. It is, of course, settled that a public office is not deemed property.26 Only McCall involved the issue of abandonment of office. It is stated therein as follows: Abandonment is a matter of intention and, when thought of in connection with an office, implies that the occupant has quit the office and ceased to perform its duties. As long as he continues to discharge the duties of the office, even though his source of title is two appointments, one valid and the other invalid, it cannot be said he has abandoned it. It was said in Steingruber v. City of San Antonio, Tex. Com. App., 220 S.W. 77, 78: "A public office may be abandoned. Abandonment is a species of resignation. Resignation and abandonment are voluntary acts. The former is a formal relinquishment; the latter a relinquishment through non-user. Abandonment implies non-user, but non-user does not, of itself, constitute abandonment. The failure to perform the duties pertaining to the office must be with actual or imputed intention on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is a question of fact. Abandonment may result from an acquiescence by the officer in his wrongful removal or discharge, but, as in other cases of abandonment, the question of intention is involved. Strictly speaking, McCall is inapplicable to this protest for, as correctly stated in the dissent of Mr. Justice Kapunan, the Protestant could not abandon the office of President which she was not holding at the time she filed the certificate of candidacy for Senator. But the majority of the Tribunal never declared, nor even implied, that she abandoned the office of President because it knew that she had yet nothing to abandon. Precisely, she filed this protest to be declared the winner for that office, to thereafter assume and perform the duties thereof, and exercise the powers appertaining thereto. What the Tribunal explicitly states is that the Protestant abandoned this Protest, thereby rendering this protest moot. Mr. Justice Puno also insists that abandonment raises a question of fact and that the Tribunal cannot resolve it "for lack of competent evidence"; moreover, he notes that the Protestee "has not adduced evidence which can be the basis for a finding that she intentionally abandoned her protest; on the contrary, the Protestee does not want the protest to be dismissed on a technicality but prays that it be decided on the merits." Suffice it to say that the Protestant herself has not denied nor questioned the following facts, which by themselves, constitute overwhelming proof of the intention to abandon the protest: (a) Filing of a certificate of candidacy for Senator for the 8 May 1995 elections; (b) Campaigning for the office of Senator in such election; (c) Taking her oath of office as Senator upon the commencement of the term therefor; (d) Assumption of office as Senator; and (e) Discharge and performance of the duties appertaining to the office of Senator. These acts speak for themselves res ipsa loquitur to negate any proposition that the Protestant has not abandoned this protest. Thus, what initially appears to be the correct view in the dissent is, in the final analysis, misplaced. This must also be the verdict upon the following pronouncements of Mr. Justice Puno: A more fundamental reason prevents me from joining the majority. With due respect, I submit that the majority ruling on abandonment is inconsistent with the doctrine that an election contest is concerned less with the private interest of the candidates but more with public interest. Under a republican regime of government, the overarching object of an election contest is to seek and enforce the judgment of the people on who should govern them. It is not a happenstance that the first declaration of policy of our Constitution underlines in bright that "sovereignty resides in the people and all government authority emanates from them." The first duty of a citizen as a particle of sovereignty in a democracy is to exercise his sovereignty just as the first duty of any reigning government is to uphold the sovereignty of the people at all cost. Thus, in Moraleja vs. Relova, we emphatically held that ". . . once the court has acquired jurisdiction over an election contest, the public interest involved demands that the true winner be known without regard to the wishes or acts of the parties so much so that there can be no default, compromise nor stipulation of facts in this kind of cases." Wisely, this Tribunal has consistently demurred from dismissing election contests even on the ground of death of the protestee or the protestant.

The majority appears to stray away from this lodestar of our Constitution. It will dismiss the case at bar even while the protestee and the protestant are yet alive, even while the term of the 1992 president-elect has yet to expire, and even while the protestee and the protestant together plead, that the Tribunal should determine the true will of the people by deciding their dispute on the merit[s] and not on technicalities that trifle with the truth. I submit that it is the better stance for the Tribunal to decide this election contest on the merit[s] and vindicate the political judgment of the people which far surpasses in significance all other considerations. Our duty to tell the people who have the right to govern them cannot depend on the uncertain oscillations of politics of the litigants as often times they are directed by the wind of convenience, and not by the weal of the public. For one, the majority has, in no uncertain terms, demonstrated the dissimilarities in the factual settings of the instant protest vis-a-vis the earlier cases that enunciated the doctrine relied on by Mr. Justice Puno. Then, too, it must be reiterated, to avoid further miscomprehension, that the Moraleja ruling even conceded that the matter of abandonment "could be different" if the petitioner therein had accepted "a permanent appointment to a regular office" during the pendency of his protest. In short, Moraleja in fact intimates abandonment of an election protest if, in the meantime, the Protestant accepts a permanent appointment to a regular office. If that be so, then would it be, and for weightier reasons, against a protestant who voluntarily sought election to an office whose term would extend beyond the expiry date of the term of the contested office, and after winning the said election, took her oath and assumed office and thereafter continuously serves it. In Moraleja, the Supreme Court was meticulous in excluding abandonment from the enumeration of specific "acts or wishes" of the parties which must be disregarded because of the public interest component of an election protest. As reflected in the above quotation from Mr. Justice Puno's dissent, only default, compromise, orstipulation of facts are included. Finally, with all due respect, the above pronouncement of Mr. Justice Puno forgets that, as distinctly pointed out in the early part of this Resolution, the Rules of the Tribunal allow summary dismissal of election protests even for less important grounds, to repeat, such as the petition filed with the Tribunal or the annexes attached thereto are not clearly legible, or the filing fees and cash deposits were not filed within the periods fixed in the Rules,27 and the additional provision for dismissal under Rule 61. All these provisions of the Rules would then be put to naught or, at the very least, modified or amended in a way not authorized by the Rules, if the theory of Mr. Justice Puno be accepted. Such theory would unreasonably bind the Tribunal to the technical minutiae of trial on the merits to bring to their ultimate end all protests or contests filed before it including those filed by candidates who even forgot to vote for themselves and obtained no votes in the final count, but, unable to accept defeat, filed a protest claiming massive fraud and irregularities, vote-buying, and terrorism. Consequently, all the time and energy of the Justices of the Supreme Court would be spent appreciating millions of revised ballots to the prejudice of their regular judicial functions in the Court, as the electoral protest of every Juan, Pedro, and Jose who lost in the presidential elections would have to be heard on the merits. Public policy abhors such a scenario and no public good stands to be thereby served. WHEREFORE, the Tribunal hereby resolved to (1) GRANT the Protestant's Motion of 16 August 1995 to dispense with the revision of ballots and other election documents in the remaining precincts of the pilot areas; (2) DISMISS the instant election protest, since it has been rendered moot and academic by its abandonment or withdrawal by the Protestant as a consequence of her election and assumption of office as Senator and her discharge of the duties and functions thereof; and (3) DISMISS, as a consequence, the Protestee's Counter-Protest. No pronouncements as to costs. SO ORDERED.

G.R. No. 161434

March 3, 2004

MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR., petitioners, vs. The COMMISSION ON ELECTIONS, RONALD ALLAN KELLY POE (a.k.a. FERNANDO POE, JR.) and VICTORINO X. FORNIER, respondents. x-----------------------------x G.R. No. 161634 March 3, 2004

ZOILO ANTONIO VELEZ, petitioner, vs. RONALD ALLAN KELLEY POE, a.k.a. FERNANDO POE, JR., respondent. x-----------------------------x G. R. No. 161824 March 3, 2004

VICTORINO X. FORNIER, petitioner, vs. HON. COMMISSION ON ELECTIONS and RONALD ALLAN KELLEY POE, ALSO KNOWN AS FERNANDO POE JR., respondents. DECISION VITUG, J.: Citizenship is a treasured right conferred on those whom the state believes are deserving of the privilege. It is a "precious heritage, as well as an inestimable acquisition,"1 that cannot be taken lightly by anyone either by those who enjoy it or by those who dispute it. Before the Court are three consolidated cases, all of which raise a single question of profound importance to the nation. The issue of citizenship is brought up to challenge the qualifications of a presidential candidate to hold the highest office of the land. Our people are waiting for the judgment of the Court with bated breath. Is Fernando Poe, Jr., the hero of silver screen, and now one of the main contenders for the presidency, a natural-born Filipino or is he not? The moment of introspection takes us face to face with Spanish and American colonial roots and reminds us of the rich heritage of civil law and common law traditions, the fusion resulting in a hybrid of laws and jurisprudence that could be no less than distinctly Filipino. Antecedent Case Settings On 31 December 2003, respondent Ronald Allan Kelly Poe, also known as Fernando Poe, Jr. (hereinafter "FPJ"), filed his certificate of candidacy for the position of President of the Republic of the Philippines under the Koalisyon ng Nagkakaisang Pilipino (KNP) Party, in the forthcoming national elections. In his certificate of candidacy, FPJ, representing himself to be a natural-born citizen of the Philippines, stated his name to be "Fernando Jr.," or "Ronald Allan" Poe, his date of birth to be 20 August 1939 and his place of birth to be Manila. Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus Hon. Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr., Respondents," initiated, on 09 January 2004, a petition docketed SPA No. 04-003 before the Commission on Elections ("COMELEC") to disqualify FPJ and to deny due course or to cancel his certificate of candidacy upon the thesis that FPJ made a material misrepresentation in his certificate of candidacy by claiming to be a natural-born Filipino citizen when in truth, according to Fornier, his parents were foreigners; his mother, Bessie Kelley Poe, was an American, and his father, Allan Poe, was a Spanish national, being the son of Lorenzo Pou, a Spanish subject. Granting, petitioner asseverated, that Allan F. Poe was a Filipino citizen, he could not have transmitted his Filipino citizenship to FPJ, the latter being an illegitimate child of an alien mother. Petitioner based the allegation of the illegitimate birth of respondent on two assertions - first, Allan F. Poe contracted a prior marriage to a certain Paulita Gomez before his marriage to Bessie Kelley and, second, even if no such prior marriage had existed, Allan F. Poe, married Bessie Kelly only a year after the birth of respondent. In the hearing before the Third Division of the COMELEC on 19 January 2004, petitioner, in support of his claim, presented several documentary exhibits - 1) a copy of the certificate of birth of FPJ, 2) a certified photocopy of an affidavit executed in Spanish by Paulita Poe y Gomez attesting to her having filed a case for bigamy and concubinage against the father of respondent, Allan F. Poe, after discovering his bigamous relationship with Bessie Kelley, 3) an English translation of the affidavit aforesaid, 4) a certified photocopy of the certificate of birth of Allan F. Poe, 5) a certification issued by the Director of the Records Management and Archives Office, attesting to the fact

that there was no record in the National Archives that a Lorenzo Poe or Lorenzo Pou resided or entered the Philippines before 1907, and 6) a certification from the Officer-In-Charge of the Archives Division of the National Archives to the effect that no available information could be found in the files of the National Archives regarding the birth of Allan F. Poe. On his part, respondent, presented twenty-two documentary pieces of evidence, the more significant ones being - a) a certification issued by Estrella M. Domingo of the Archives Division of the National Archives that there appeared to be no available information regarding the birth of Allan F. Poe in the registry of births for San Carlos, Pangasinan, b) a certification issued by the Officer-In-Charge of the Archives Division of the National Archives that no available information about the marriage of Allan F. Poe and Paulita Gomez could be found, c) a certificate of birth of Ronald Allan Poe, d) Original Certificate of Title No. P-2247 of the Registry of Deeds for the Province of Pangasinan, in the name of Lorenzo Pou, e) copies of Tax Declaration No. 20844, No. 20643, No. 23477 and No. 23478 in the name of Lorenzo Pou, f) a copy of the certificate of death of Lorenzo Pou, g) a copy of the purported marriage contract between Fernando Pou and Bessie Kelley, and h) a certification issued by the City Civil Registrar of San Carlos City, Pangasinan, stating that the records of birth in the said office during the period of from 1900 until May 1946 were totally destroyed during World War II. On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack of merit. Three days later, or on 26 January 2004, Fornier filed his motion for reconsideration. The motion was denied on 06 February 2004 by the COMELEC en banc. On 10 February 2004, petitioner assailed the decision of the COMELEC before this Court conformably with Rule 64, in relation to Rule 65, of the Revised Rules of Civil Procedure. The petition, docketed G. R. No. 161824, likewise prayed for a temporary restraining order, a writ of preliminary injunction or any other resolution that would stay the finality and/or execution of the COMELEC resolutions. The other petitions, later consolidated with G. R. No. 161824, would include G. R. No. 161434, entitled "Maria Jeanette C. Tecson, and Felix B. Desiderio, Jr., vs. The Commission on Elections, Ronald Allan Kelley Poe (a.k.a. Fernando Poe, Jr.), and Victorino X. Fornier," and the other, docketed G. R. No. 161634, entitled "Zoilo Antonio G. Velez, vs. Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr.," both challenging the jurisdiction of the COMELEC and asserting that, under Article VII, Section 4, paragraph 7, of the 1987 Constitution, only the Supreme Court had original and exclusive jurisdiction to resolve the basic issue on the case. Jurisdiction of the Court In G. R. No. 161824 In seeking the disqualification of the candidacy of FPJ and to have the COMELEC deny due course to or cancel FPJs certificate of candidacy for alleged misrepresentation of a material fact (i.e., that FPJ was a natural -born citizen) before the COMELEC, petitioner Fornier invoked Section 78 of the Omnibus Election Code "Section 78. Petition to deny due course to or cancel a certificate of candidacy. --- A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false" in consonance with the general powers of COMELEC expressed in Section 52 of the Omnibus Election Code "Section 52. Powers and functions of the Commission on Elections. In addition to the powers and functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections" and in relation to Article 69 of the Omnibus Election Code which would authorize "any interested party" to file a verified petition to deny or cancel the certificate of candidacy of any nuisance candidate. Decisions of the COMELEC on disqualification cases may be reviewed by the Supreme Court per Rule 642 in an action for certiorari under Rule 653 of the Revised Rules of Civil Procedure. Section 7, Article IX, of the 1987 Constitution also reads "Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum, required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof." Additionally, Section 1, Article VIII, of the same Constitution provides that judicial power is vested in one Supreme Court and in such lower courts as may be established by law which power "includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."

It is sufficiently clear that the petition brought up in G. R. No. 161824 was aptly elevated to, and could well be taken cognizance of by, this Court. A contrary view could be a gross denial to our people of their fundamental right to be fully informed, and to make a proper choice, on who could or should be elected to occupy the highest government post in the land. In G. R. No. 161434 and G. R. No. 161634 Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G. R. No. 161634, invoke the provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the jurisdiction of the COMELEC when it took cognizance of SPA No. 04-003 and in urging the Supreme Court to instead take on the petitions they directly instituted before it. The Constitutional provision cited reads: "The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose." The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973 Constitution to designate any tribunal to be the sole judge of presidential and vice-presidential contests, has constrained this Court to declare, in Lopez vs. Roxas,4 as "not (being) justiciable" controversies or disputes involving contests on the elections, returns and qualifications of the President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to enact Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal to Try, Hear and Decide Protests Contesting the Election of the President-Elect and the Vice-PresidentElect of the Philippines and Providing for the Manner of Hearing the Same." Republic Act 1793 designated the Chief Justice and the Associate Justices of the Supreme Court to be the members of the tribunal. Although the subsequent adoption of the parliamentary form of government under the 1973 Constitution might have implicitly affected Republic Act No. 1793, the statutory set-up, nonetheless, would now be deemed revived under the present Section 4, paragraph 7, of the 1987 Constitution. Ordinary usage would characterize a "contest" in reference to a post-election scenario. Election contests consist of either an election protest or a quo warranto which, although two distinct remedies, would have one objective in view, i.e., to dislodge the winning candidate from office. A perusal of the phraseology in Rule 12, Rule 13, and Rule 14 of the "Rules of the Presidential Electoral Tribunal," promulgated by the Supreme Court en banc on 18 April 1992, would support this premise "Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President of the Philippines. "Rule 13. How Initiated. - An election contest is initiated by the filing of an election protest or a petition for quo warranto against the President or Vice-President. An election protest shall not include a petition for quo warranto. A petition for quo warranto shall not include an election protest. "Rule 14. Election Protest. - Only the registered candidate for President or for Vice-President of the Philippines who received the second or third highest number of votes may contest the election of the President or the Vice-President, as the case may be, by filing a verified petition with the Clerk of the Presidential Electoral Tribunal within thirty (30) days after the proclamation of the winner." The rules categorically speak of the jurisdiction of the tribunal over contests relating to the election, returns and qualifications of the "President" or "Vice-President", of the Philippines, and not of "candidates" for President or VicePresident. A quo warranto proceeding is generally defined as being an action against a person who usurps, intrudes into, or unlawfully holds or exercises a public office.5 In such context, the election contest can only contemplate a post-election scenario. In Rule 14, only a registered candidate who would have received either the second or third highest number of votes could file an election protest. This rule again presupposes a post-election scenario. It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4, paragraph 7, of the 1987 Constitution, would not include cases directly brought before it, questioning the qualifications of a candidate for the presidency or vice-presidency before the elections are held. Accordingly, G. R. No. 161434, entitled "Maria Jeanette C. Tecson, et al., vs. Commission on Elections et al.," and G. R. No. 161634, entitled "Zoilo Antonio Velez vs. Ronald Allan Kelley Poe a.k.a. Fernando Poe, Jr." would have to be dismissed for want of jurisdiction. The Citizenship Issue Now, to the basic issue; it should be helpful to first give a brief historical background on the concept of citizenship. Perhaps, the earliest understanding of citizenship was that given by Aristotle, who, sometime in 384 to 322 B.C., described the "citizen" to refer to a man who shared in the administration of justice and in the holding of an office.6Aristotle saw its significance if only to determine the constituency of the "State," which he described as being composed of such persons who would be adequate in number to achieve a self-sufficient existence.7 The concept grew to include one who would both govern and be governed, for which qualifications like autonomy, judgment and

loyalty could be expected. Citizenship was seen to deal with rights and entitlements, on the one hand, and with concomitant obligations, on the other.8 In its ideal setting, a citizen was active in public life and fundamentally willing to submit his private interests to the general interest of society. The concept of citizenship had undergone changes over the centuries. In the 18th century, the concept was limited, by and large, to civil citizenship, which established the rights necessary for individual freedom, such as rights to property, personal liberty and justice.9 Its meaning expanded during the 19th century to include political citizenship, which encompassed the right to participate in the exercise of political power.10 The 20th century saw the next stage of the development of social citizenship, which laid emphasis on the right of the citizen to economic well-being and social security.11 The idea of citizenship has gained expression in the modern welfare state as it so developed in Western Europe. An ongoing and final stage of development, in keeping with the rapidly shrinking global village, might well be the internationalization of citizenship.12 The Local Setting - from Spanish Times to the Present There was no such term as "Philippine citizens" during the Spanish regime but "subjects of Spain" or "Spanish subjects."13 In church records, the natives were called 'indios', denoting a low regard for the inhabitants of the archipelago. Spanish laws on citizenship became highly codified during the 19th century but their sheer number made it difficult to point to one comprehensive law. Not all of these citizenship laws of Spain however, were made to apply to the Philippine Islands except for those explicitly extended by Royal Decrees.14 Spanish laws on citizenship were traced back to the Novisima Recopilacion, promulgated in Spain on 16 July 1805 but as to whether the law was extended to the Philippines remained to be the subject of differing views among experts;15 however, three royal decrees were undisputably made applicable to Spaniards in the Philippines - the Order de la Regencia of 14 August 1841,16 the Royal Decree of 23 August 1868 specifically defining the political status of children born in the Philippine Islands,17 and finally, the Ley Extranjera de Ultramar of 04 July 1870, which was expressly made applicable to the Philippines by the Royal Decree of 13 July 1870.18 The Spanish Constitution of 1876 was never extended to the Philippine Islands because of the express mandate of its Article 89, according to which the provisions of the Ultramar among which this country was included, would be governed by special laws.19 It was only the Civil Code of Spain, made effective in this jurisdiction on 18 December 1889, which came out with the first categorical enumeration of who were Spanish citizens. "(a) Persons born in Spanish territory, "(b) Children of a Spanish father or mother, even if they were born outside of Spain, "(c) Foreigners who have obtained naturalization papers, "(d) Those who, without such papers, may have become domiciled inhabitants of any town of the Monarchy."20 The year 1898 was another turning point in Philippine history. Already in the state of decline as a superpower, Spain was forced to so cede her sole colony in the East to an upcoming world power, the United States. An accepted principle of international law dictated that a change in sovereignty, while resulting in an abrogation of all political laws then in force, would have no effect on civil laws, which would remain virtually intact. The Treaty of Paris was entered into on 10 December 1898 between Spain and the United States.21 Under Article IX of the treaty, the civil rights and political status of the native inhabitants of the territories ceded to the United States would be determined by its Congress "Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the present treaty relinquishes or cedes her sovereignty may remain in such territory or may remove therefrom, retaining in either event all their rights of property, including the right to sell or dispose of such property or of its proceeds; and they shall also have the right to carry on their industry, commerce, and professions, being subject in respect thereof to such laws as are applicable to foreigners. In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they reside. Thus "The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress."22

Upon the ratification of the treaty, and pending legislation by the United States Congress on the subject, the native inhabitants of the Philippines ceased to be Spanish subjects. Although they did not become American citizens, they, however, also ceased to be "aliens" under American laws and were thus issued passports describing them to be citizens of the Philippines entitled to the protection of the United States. The term "citizens of the Philippine Islands" appeared for the first time in the Philippine Bill of 1902, also commonly referred to as the Philippine Organic Act of 1902, the first comprehensive legislation of the Congress of the United States on the Philippines ".... that all inhabitants of the Philippine Islands continuing to reside therein, who were Spanish subjects on the 11th day of April, 1891, and then resided in said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at Paris, December tenth eighteen hundred and ninety eight."23 Under the organic act, a "citizen of the Philippines" was one who was an inhabitant of the Philippines, and a Spanish subject on the 11th day of April 1899. The term "inhabitant" was taken to include 1) a native-born inhabitant, 2) an inhabitant who was a native of Peninsular Spain, and 3) an inhabitant who obtained Spanish papers on or before 11 April 1899.24 Controversy arose on to the status of children born in the Philippines from 11 April 1899 to 01 July 1902, during which period no citizenship law was extant in the Philippines. Weight was given to the view, articulated in jurisprudential writing at the time, that the common law principle of jus soli, otherwise also known as the principle of territoriality, operative in the United States and England, governed those born in the Philippine Archipelago within that period.25 More about this later. In 23 March 1912, the Congress of the United States made the following amendment to the Philippine Bill of 1902 "Provided, That the Philippine Legislature is hereby authorized to provide by law for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of other insular possession of the United States, and such other persons residing in the Philippine Islands who would become citizens of the United States, under the laws of the United States, if residing therein."26 With the adoption of the Philippine Bill of 1902, the concept of "Philippine citizens" had for the first time crystallized. The word "Filipino" was used by William H. Taft, the first Civil Governor General in the Philippines when he initially made mention of it in his slogan, "The Philippines for the Filipinos." In 1916, the Philippine Autonomy Act, also known as the Jones Law restated virtually the provisions of the Philippine Bill of 1902, as so amended by the Act of Congress in 1912 "That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their children born subsequently thereto, shall be deemed and held to be citizens of the Philippine Islands, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at Paris December tenth, eighteen hundred and ninety-eight and except such others as have since become citizens of some other country; Provided, That the Philippine Legislature, herein provided for, is hereby authorized to provide for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of the insular possessions of the United States, and such other persons residing in the Philippine Islands who are citizens of the United States, or who could become citizens of the United States under the laws of the United States, if residing therein." Under the Jones Law, a native-born inhabitant of the Philippines was deemed to be a citizen of the Philippines as of 11 April 1899 if he was 1) a subject of Spain on 11 April 1899, 2) residing in the Philippines on said date, and, 3) since that date, not a citizen of some other country. While there was, at one brief time, divergent views on whether or not jus soli was a mode of acquiring citizenship, the 1935 Constitution brought to an end to any such link with common law, by adopting, once and for all, jus sanguinis or blood relationship as being the basis of Filipino citizenship "Section 1, Article III, 1935 Constitution. The following are citizens of the Philippines "(1) Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution "(2) Those born in the Philippines Islands of foreign parents who, before the adoption of this Constitution, had been elected to public office in the Philippine Islands. "(3) Those whose fathers are citizens of the Philippines.

"(4) Those whose mothers are citizens of the Philippines and upon reaching the age of majority, elect Philippine citizenship. "(5) Those who are naturalized in accordance with law." Subsection (4), Article III, of the 1935 Constitution, taken together with existing civil law provisions at the time, which provided that women would automatically lose their Filipino citizenship and acquire that of their foreign husbands, resulted in discriminatory situations that effectively incapacitated the women from transmitting their Filipino citizenship to their legitimate children and required illegitimate children of Filipino mothers to still elect Filipino citizenship upon reaching the age of majority. Seeking to correct this anomaly, as well as fully cognizant of the newly found status of Filipino women as equals to men, the framers of the 1973 Constitution crafted the provisions of the new Constitution on citizenship to reflect such concerns "Section 1, Article III, 1973 Constitution - The following are citizens of the Philippines: "(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution. "(2) Those whose fathers or mothers are citizens of the Philippines. "(3) Those who elect Philippine citizenship pursuant to the provisions of the Constitution of nineteen hundred and thirty-five. "(4) Those who are naturalized in accordance with law." For good measure, Section 2 of the same article also further provided that "A female citizen of the Philippines who marries an alien retains her Philippine citizenship, unless by her act or omission she is deemed, under the law to have renounced her citizenship." The 1987 Constitution generally adopted the provisions of the 1973 Constitution, except for subsection (3) thereof that aimed to correct the irregular situation generated by the questionable proviso in the 1935 Constitution. Section I, Article IV, 1987 Constitution now provides: "The following are citizens of the Philippines: "(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution. "(2) Those whose fathers or mothers are citizens of the Philippines. "(3) Those born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and "(4) Those who are naturalized in accordance with law." The Case Of FPJ Section 2, Article VII, of the 1987 Constitution expresses: "No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election." The term "natural-born citizens," is defined to include "those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship."27 The date, month and year of birth of FPJ appeared to be 20 August 1939 during the regime of the 1935 Constitution. Through its history, four modes of acquiring citizenship - naturalization, jus soli, res judicata and jus sanguinis28 had been in vogue. Only two, i.e., jus soli and jus sanguinis, could qualify a person to being a "natural-born" citizen of the Philippines. Jus soli, per Roa vs. Collector of Customs29 (1912), did not last long. With the adoption of the 1935 Constitution and the reversal of Roa in Tan Chong vs. Secretary of Labor30 (1947), jus sanguinis or blood relationship would now become the primary basis of citizenship by birth. Documentary evidence adduced by petitioner would tend to indicate that the earliest established direct ascendant of FPJ was his paternal grandfather Lorenzo Pou, married to Marta Reyes, the father of Allan F. Poe. While the record of birth of Lorenzo Pou had not been presented in evidence, his death certificate, however, identified him to be a Filipino, a resident of San Carlos, Pangasinan, and 84 years old at the time of his death on 11 September 1954. The certificate of birth of the father of FPJ, Allan F. Poe, showed that he was born on 17 May 1915 to an Espaol father,

Lorenzo Pou, and a mestiza Espaol mother, Marta Reyes. Introduced by petitioner was an "uncertified" copy of a supposed certificate of the alleged marriage of Allan F. Poe and Paulita Gomez on 05 July 1936. The marriage certificate of Allan F. Poe and Bessie Kelley reflected the date of their marriage to be on 16 September 1940. In the same certificate, Allan F. Poe was stated to be twenty-five years old, unmarried, and a Filipino citizen, and Bessie Kelley to be twenty-two years old, unmarried, and an American citizen. The birth certificate of FPJ, would disclose that he was born on 20 August 1939 to Allan F. Poe, a Filipino, twenty-four years old, married to Bessie Kelly, an American citizen, twenty-one years old and married. Considering the reservations made by the parties on the veracity of some of the entries on the birth certificate of respondent and the marriage certificate of his parents, the only conclusions that could be drawn with some degree of certainty from the documents would be that 1. The parents of FPJ were Allan F. Poe and Bessie Kelley; 2. FPJ was born to them on 20 August 1939; 3. Allan F. Poe and Bessie Kelley were married to each other on 16 September, 1940; 4. The father of Allan F. Poe was Lorenzo Poe; and 5. At the time of his death on 11 September 1954, Lorenzo Poe was 84 years old. Would the above facts be sufficient or insufficient to establish the fact that FPJ is a natural-born Filipino citizen? The marriage certificate of Allan F. Poe and Bessie Kelley, the birth certificate of FPJ, and the death certificate of Lorenzo Pou are documents of public record in the custody of a public officer. The documents have been submitted in evidence by both contending parties during the proceedings before the COMELEC. The birth certificate of FPJ was marked Exhibit "A" for petitioner and Exhibit "3" for respondent. The marriage certificate of Allan F. Poe to Bessie Kelley was submitted as Exhibit "21" for respondent. The death certificate of Lorenzo Pou was submitted by respondent as his Exhibit "5." While the last two documents were submitted in evidence for respondent, the admissibility thereof, particularly in reference to the facts which they purported to show, i.e., the marriage certificate in relation to the date of marriage of Allan F. Poe to Bessie Kelley and the death certificate relative to the death of Lorenzo Pou on 11 September 1954 in San Carlos, Pangasinan, were all admitted by petitioner, who had utilized those material statements in his argument. All three documents were certified true copies of the originals. Section 3, Rule 130, Rules of Court states that "Original document must be produced; exceptions. - When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: "x x x xxx xxx

"(d) When the original is a public record in the custody of a public office or is recorded in a public office." Being public documents, the death certificate of Lorenzo Pou, the marriage certificate of Allan F. Poe and Bessie Kelly, and the birth certificate of FPJ, constitute prima facie proof of their contents. Section 44, Rule 130, of the Rules of Court provides: "Entries in official records. Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated." The trustworthiness of public documents and the value given to the entries made therein could be grounded on 1) the sense of official duty in the preparation of the statement made, 2) the penalty which is usually affixed to a breach of that duty, 3) the routine and disinterested origin of most such statements, and 4) the publicity of record which makes more likely the prior exposure of such errors as might have occurred.31 The death certificate of Lorenzo Pou would indicate that he died on 11 September 1954, at the age of 84 years, in San Carlos, Pangasinan. It could thus be assumed that Lorenzo Pou was born sometime in the year 1870 when the Philippines was still a colony of Spain. Petitioner would argue that Lorenzo Pou was not in the Philippines during the crucial period of from 1898 to 1902 considering that there was no existing record about such fact in the Records Management and Archives Office. Petitioner, however, likewise failed to show that Lorenzo Pou was at any other place during the same period. In his death certificate, the residence of Lorenzo Pou was stated to be San Carlos, Pangasinan. In the absence of any evidence to the contrary, it should be sound to conclude, or at least to presume, that the place of residence of a person at the time of his death was also his residence before death. It would be extremely doubtful if the Records Management and Archives Office would have had complete records of all residents of the Philippines from 1898 to 1902.

Proof of Paternity and Filiation Under Civil Law. Petitioner submits, in any case, that in establishing filiation (relationship or civil status of the child to the father [or mother]) or paternity (relationship or civil status of the father to the child) of an illegitimate child, FPJ evidently being an illegitimate son according to petitioner, the mandatory rules under civil law must be used. Under the Civil Code of Spain, which was in force in the Philippines from 08 December 1889 up until the day prior to 30 August 1950 when the Civil Code of the Philippines took effect, acknowledgment was required to establish filiation or paternity. Acknowledgment was either judicial (compulsory) or voluntary. Judicial or compulsory acknowledgment was possible only if done during the lifetime of the putative parent; voluntary acknowledgment could only be had in a record of birth, a will, or a public document.32 Complementary to the new code was Act No. 3753 or the Civil Registry Law expressing in Section 5 thereof, that "In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the parents of the infant or only by the mother if the father refuses. In the latter case, it shall not be permissible to state or reveal in the document the name of the father who refuses to acknowledge the child, or to give therein any information by which such father could be identified." In order that the birth certificate could then be utilized to prove voluntary acknowledgment of filiation or paternity, the certificate was required to be signed or sworn to by the father. The failure of such requirement rendered the same useless as being an authoritative document of recognition.33 In Mendoza vs. Mella,34 the Court ruled "Since Rodolfo was born in 1935, after the registry law was enacted, the question here really is whether or not his birth certificate (Exhibit 1), which is merely a certified copy of the registry record, may be relied upon as sufficient proof of his having been voluntarily recognized. No such reliance, in our judgment, may be placed upon it. While it contains the names of both parents, there is no showing that they signed the original, let alone swore to its contents as required in Section 5 of Act No. 3753. For all that might have happened, it was not even they or either of them who furnished the data to be entered in the civil register. Petitioners say that in any event the birth certificate is in the nature of a public document wherein voluntary recognition of a natural child may also be made, according to the same Article 131. True enough, but in such a case, there must be a clear statement in the document that the parent recognizes the child as his or her own." In the birth certificate of respondent FPJ, presented by both parties, nowhere in the document was the signature of Allan F. Poe found. There being no will apparently executed, or at least shown to have been executed, by decedent Allan F. Poe, the only other proof of voluntary recognition remained to be "some other public document." In Pareja vs. Pareja,35 this Court defined what could constitute such a document as proof of voluntary acknowledgment: "Under the Spanish Civil Code there are two classes of public documents, those executed by private individuals which must be authenticated by notaries, and those issued by competent public officials by reason of their office. The public document pointed out in Article 131 as one of the means by which recognition may be made belongs to the first class." Let us leave it at that for the moment. The 1950 Civil Code categorized the acknowledgment or recognition of illegitimate children into voluntary, legal or compulsory. Voluntary recognition was required to be expressedly made in a record of birth, a will, a statement before a court of record or in any authentic writing. Legal acknowledgment took place in favor of full blood brothers and sisters of an illegitimate child who was recognized or judicially declared as natural. Compulsory acknowledgment could be demanded generally in cases when the child had in his favor any evidence to prove filiation. Unlike an action to claim legitimacy which would last during the lifetime of the child, and might pass exceptionally to the heirs of the child, an action to claim acknowledgment, however, could only be brought during the lifetime of the presumed parent. Amicus Curiae Ruben F. Balane defined, during the oral argument, "authentic writing," so as to be an authentic writing for purposes of voluntary recognition, simply as being a genuine or indubitable writing of the father. The term would include a public instrument (one duly acknowledged before a notary public or other competent official) or a private writing admitted by the father to be his. The Family Code has further liberalized the rules; Article 172, Article 173, and Article 175 provide: "Art. 172. The filiation of legitimate children is established by any of the following: "(1) The record of birth appearing in the civil register or a final judgment; or "(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.

"In the absence of the foregoing evidence, the legitimate filiation shall be proved by: "(1) The open and continuous possession of the status of a legitimate child; or "(2) Any other means allowed by the Rules of Court and special laws. "Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action. "The action already commenced by the child shall survive notwithstanding the death of either or both of the parties. "x x x xxx x x x.

"Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same, evidence as legitimate children. "The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent." The provisions of the Family Code are retroactively applied; Article 256 of the code reads: "Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws." Thus, in Vda. de Sy-Quia vs. Court of Appeals,36 the Court has ruled: "We hold that whether Jose was a voluntarily recognized natural child should be decided under Article 278 of the Civil Code of the Philippines. Article 2260 of that Code provides that 'the voluntary recognition of a natural child shall take place according to this Code, even if the child was born before the effectivity of this body of laws' or before August 30, 1950. Hence, Article 278 may be given retroactive effect." It should be apparent that the growing trend to liberalize the acknowledgment or recognition of illegitimate children is an attempt to break away from the traditional idea of keeping well apart legitimate and non-legitimate relationships within the family in favor of the greater interest and welfare of the child. The provisions are intended to merely govern the private and personal affairs of the family. There is little, if any, to indicate that the legitimate or illegitimate civil status of the individual would also affect his political rights or, in general, his relationship to the State. While, indeed, provisions on "citizenship" could be found in the Civil Code, such provisions must be taken in the context of private relations, the domain of civil law; particularly "Civil Law is that branch of law which has for its double purpose the organization of the family and the regulation of property. It has thus [been] defined as the mass of precepts which determine and regulate the relations of assistance, authority and obedience among members of a family, and those which exist among members of a society for the protection of private interests."37 In Yaez de Barnuevo vs. Fuster,38 the Court has held: "In accordance with Article 9 of the Civil Code of Spain, x x x the laws relating to family rights and duties, or to the status, condition and legal capacity of persons, govern Spaniards although they reside in a foreign country; that, in consequence, 'all questions of a civil nature, such as those dealing with the validity or nullity of the matrimonial bond, the domicile of the husband and wife, their support, as between them, the separation of their properties, the rules governing property, marital authority, division of conjugal property, the classification of their property, legal causes for divorce, the extent of the latter, the authority to decree it, and, in general, the civil effects of marriage and divorce upon the persons and properties of the spouses, are questions that are governed exclusively by the national law of the husband and wife." The relevance of "citizenship" or "nationality" to Civil Law is best exemplified in Article 15 of the Civil Code, stating that "Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad" that explains the need to incorporate in the code a reiteration of the Constitutional provisions on citizenship. Similarly, citizenship is significant in civil relationships found in different parts of the Civil Code,39 such as on successional rights and family relations.40 In adoption, for instance, an adopted child would be considered the child

of his adoptive parents and accorded the same rights as their legitimate child but such legal fiction extended only to define his rights under civil law41 and not his political status. Civil law provisions point to an obvious bias against illegitimacy. This discriminatory attitude may be traced to the Spanish family and property laws, which, while defining proprietary and successional rights of members of the family, provided distinctions in the rights of legitimate and illegitimate children. In the monarchial set-up of old Spain, the distribution and inheritance of titles and wealth were strictly according to bloodlines and the concern to keep these bloodlines uncontaminated by foreign blood was paramount. These distinctions between legitimacy and illegitimacy were codified in the Spanish Civil Code, and the invidious discrimination survived when the Spanish Civil Code became the primary source of our own Civil Code. Such distinction, however, remains and should remain only in the sphere of civil law and not unduly impede or impinge on the domain of political law. The proof of filiation or paternity for purposes of determining his citizenship status should thus be deemed independent from and not inextricably tied up with that prescribed for civil law purposes. The Civil Code or Family Code provisions on proof of filiation or paternity, although good law, do not have preclusive effects on matters alien to personal and family relations. The ordinary rules on evidence could well and should govern. For instance, the matter about pedigree is not necessarily precluded from being applicable by the Civil Code or Family Code provisions. Section 39, Rule 130, of the Rules of Court provides "Act or Declaration about pedigree. The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word `pedigree includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree." For the above rule to apply, it would be necessary that (a) the declarant is already dead or unable to testify, (b) the pedigree of a person must be at issue, (c) the declarant must be a relative of the person whose pedigree is in question, (d) declaration must be made before the controversy has occurred, and (e) the relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such act or declaration. Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of Bessie Kelley Poe submitted as Exhibit 20 before the COMELEC, might be accepted to prove the acts of Allan F. Poe, recognizing his own paternal relationship with FPJ, i.e, living together with Bessie Kelley and his children (including respondent FPJ) in one house, and as one family "I, Ruby Kelley Mangahas, of legal age and sound mind, presently residing in Stockton, California, U.S.A., after being sworn in accordance with law do hereby declare that: "1. I am the sister of the late Bessie Kelley Poe. "2. Bessie Kelley Poe was the wife of Fernando Poe, Sr. "3. Fernando and Bessie Poe had a son by the name of Ronald Allan Poe, more popularly known in the Philippines as `Fernando Poe, Jr., or `FPJ. "4. Ronald Allan Poe `FPJ was born on August 20, 1939 at St. Luke's Hospital, Magdalena Street, Manila. "x x x xxx xxx

"7. Fernando Poe Sr., and my sister Bessie, met and became engaged while they were students at the University of the Philippines in 1936. I was also introduced to Fernando Poe, Sr., by my sister that same year. "8. Fernando Poe, Sr., and my sister Bessie had their first child in 1938. "9. Fernando Poe, Sr., my sister Bessie and their first three children, Elizabeth, Ronald, Allan and Fernando II, and myself lived together with our mother at our family's house on Dakota St. (now Jorge Bocobo St.), Malate until the liberation of Manila in 1945, except for some months between 1943-1944. "10. Fernando Poe, Sr., and my sister, Bessie, were blessed with four (4) more children after Ronald Allan Poe.

"x x x

xxx

xxx

"18. I am executing this Declaration to attest to the fact that my nephew, Ronald Allan Poe is a natural born Filipino, and that he is the legitimate child of Fernando Poe, Sr. "Done in City of Stockton, California, U.S.A., this 12th day of January 2004. Ruby Kelley Mangahas Declarant DNA Testing In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resorted to. A positive match would clear up filiation or paternity. In Tijing vs. Court of
Appeals,42 this Court has acknowledged the strong weight of DNA testing -

"Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and the child are analyzed to establish parentage. Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress." Petitioners Argument For Jurisprudential Conclusiveness Petitioner would have it that even if Allan F. Poe were a Filipino citizen, he could not have transmitted his citizenship to respondent FPJ, the latter being an illegitimate child. According to petitioner, prior to his marriage to Bessie Kelley, Allan F. Poe, on July 5, 1936, contracted marriage with a certain Paulita Gomez, making his subsequent marriage to Bessie Kelley bigamous and respondent FPJ an illegitimate child. The veracity of the supposed certificate of marriage between Allan F. Poe and Paulita Gomez could be most doubtful at best. But the documentary evidence introduced by no less than respondent himself, consisting of a birth certificate of respondent and a marriage certificate of his parents showed that FPJ was born on 20 August 1939 to a Filipino father and an American mother who were married to each other a year later, or on 16 September 1940. Birth to unmarried parents would make FPJ an illegitimate child. Petitioner contended that as an illegitimate child, FPJ so followed the citizenship of his mother, Bessie Kelley, an American citizen, basing his stand on the ruling of this Court in Morano vs. Vivo,43 citing Chiongbian vs. de Leo44 and Serra vs. Republic.45 On the above score, the disquisition made by amicus curiae Joaquin G. Bernas, SJ, is most convincing; he states "We must analyze these cases and ask what the lis mota was in each of them. If the pronouncement of the Court on jus sanguinis was on the lis mota, the pronouncement would be a decision constituting doctrine under the rule of stare decisis. But if the pronouncement was irrelevant to the lis mota, the pronouncement would not be a decision but a mere obiter dictum which did not establish doctrine. I therefore invite the Court to look closely into these cases. "First, Morano vs. Vivo. The case was not about an illegitimate child of a Filipino father. It was about a stepson of a Filipino, a stepson who was the child of a Chinese mother and a Chinese father. The issue was whether the stepson followed the naturalization of the stepfather. Nothing about jus sanguinis there. The stepson did not have the blood of the naturalized stepfather. "Second, Chiongbian vs. de Leon. This case was not about the illegitimate son of a Filipino father. It was about a legitimate son of a father who had become Filipino by election to public office before the 1935 Constitution pursuant to Article IV, Section 1(2) of the 1935 Constitution. No one was illegitimate here. "Third, Serra vs. Republic. The case was not about the illegitimate son of a Filipino father. Serra was an illegitimate child of a Chinese father and a Filipino mother. The issue was whether one who was already a Filipino because of his mother who still needed to be naturalized. There is nothing there about invidious jus sanguinis. "Finally, Paa vs. Chan.46 This is a more complicated case. The case was about the citizenship of Quintin Chan who was the son of Leoncio Chan. Quintin Chan claimed that his father, Leoncio, was the illegitimate son of a Chinese father and a Filipino mother. Quintin therefore argued that he got his citizenship from Leoncio, his father. But the Supreme Court said that there was no valid proof that Leoncio was in fact the son of a Filipina mother. The Court therefore concluded that Leoncio was not Filipino. If Leoncio was not Filipino, neither was his son Quintin. Quintin therefore was not only not a natural-born Filipino but was not even a Filipino.

"The Court should have stopped there. But instead it followed with an obiter dictum. The Court said obiter that even if Leoncio, Quintin's father, were Filipino, Quintin would not be Filipino because Quintin was illegitimate. This statement about Quintin, based on a contrary to fact assumption, was absolutely unnecessary for the case. x x x It was obiter dictum, pure and simple, simply repeating the obiter dictum in Morano vs. Vivo. "x x x xxx xxx

"Aside from the fact that such a pronouncement would have no textual foundation in the Constitution, it would also violate the equal protection clause of the Constitution not once but twice. First, it would make an illegitimate distinction between a legitimate child and an illegitimate child, and second, it would make an illegitimate distinction between the illegitimate child of a Filipino father and the illegitimate child of a Filipino mother. "The doctrine on constitutionally allowable distinctions was established long ago by People vs. Cayat.47 I would grant that the distinction between legitimate children and illegitimate children rests on real differences. x x x But real differences alone do not justify invidious distinction. Real differences may justify distinction for one purpose but not for another purpose. "x x x What is the relevance of legitimacy or illegitimacy to elective public service? What possible state interest can there be for disqualifying an illegitimate child from becoming a public officer. It was not the fault of the child that his parents had illicit liaison. Why deprive the child of the fullness of political rights for no fault of his own? To disqualify an illegitimate child from holding an important public office is to punish him for the indiscretion of his parents. There is neither justice nor rationality in that. And if there is neither justice nor rationality in the distinction, then the distinction transgresses the equal protection clause and must be reprobated." The other amici curiae, Mr. Justice Vicente Mendoza (a former member of this Court), Professor Ruben Balane and Dean Martin Magallona, at bottom, have expressed similar views. The thesis of petitioner, unfortunately hinging solely on pure obiter dicta, should indeed fail. Where jurisprudence regarded an illegitimate child as taking after the citizenship of its mother, it did so for the benefit the child. It was to ensure a Filipino nationality for the illegitimate child of an alien father in line with the assumption that the mother had custody, would exercise parental authority and had the duty to support her illegitimate child. It was to help the child, not to prejudice or discriminate against him. The fact of the matter perhaps the most significant consideration is that the 1935 Constitution, the fundamental law prevailing on the day, month and year of birth of respondent FPJ, can never be more explicit than it is. Providing neither conditions nor distinctions, the Constitution states that among the citizens of the Philippines are "those whose fathers are citizens of the Philippines." There utterly is no cogent justification to prescribe conditions or distinctions where there clearly are none provided. In Sum (1) The Court, in the exercise of its power of judicial review, possesses jurisdiction over the petition in G. R. No. 161824, filed under Rule 64, in relation to Rule 65, of the Revised Rules of Civil Procedure. G.R. No. 161824 assails the resolution of the COMELEC for alleged grave abuse of discretion in dismissing, for lack of merit, the petition in SPA No. 04-003 which has prayed for the disqualification of respondent FPJ from running for the position of President in the 10th May 2004 national elections on the contention that FPJ has committed material representation in his certificate of candidacy by representing himself to be a natural-born citizen of the Philippines. (2) The Court must dismiss, for lack of jurisdiction and prematurity, the petitions in G. R. No. 161434 and No. 161634 both having been directly elevated to this Court in the latters capacity as the only tribunal to resolve a presidential and vice-presidential election contest under the Constitution. Evidently, the primary jurisdiction of the Court can directly be invoked only after, not before, the elections are held. (3) In ascertaining, in G.R. No. 161824, whether grave abuse of discretion has been committed by the COMELEC, it is necessary to take on the matter of whether or not respondent FPJ is a natural-born citizen, which, in turn, depended on whether or not the father of respondent, Allan F. Poe, would have himself been a Filipino citizen and, in the affirmative, whether or not the alleged illegitimacy of respondent prevents him from taking after the Filipino citizenship of his putative father. Any conclusion on the Filipino citizenship of Lorenzo Pou could only be drawn from the presumption that having died in 1954 at 84 years old, Lorenzo would have been born sometime in the year 1870, when the Philippines was under Spanish rule, and that San Carlos, Pangasinan, his place of residence upon his death in 1954, in the absence of any other evidence, could have well been his place of residence before death, such that Lorenzo Pou would have benefited from the "en masse Filipinization" that the Philippine Bill had effected in 1902. That citizenship (of Lorenzo Pou), if acquired, would thereby extend to his son, Allan F. Poe, father of respondent FPJ. The

1935 Constitution, during which regime respondent FPJ has seen first light, confers citizenship to all persons whose fathers are Filipino citizens regardless of whether such children are legitimate or illegitimate. (4) But while the totality of the evidence may not establish conclusively that respondent FPJ is a natural-born citizen of the Philippines, the evidence on hand still would preponderate in his favor enough to hold that he cannot be held guilty of having made a material misrepresentation in his certificate of candidacy in violation of Section 78, in relation to Section 74, of the Omnibus Election Code. Petitioner has utterly failed to substantiate his case before the Court, notwithstanding the ample opportunity given to the parties to present their position and evidence, and to prove whether or not there has been material misrepresentation, which, as so ruled in Romualdez-Marcos vs. COMELEC,48 must not only be material, but also deliberate and willful. WHEREFORE, the Court RESOLVES to DISMISS 1. G. R. No. 161434, entitled "Maria Jeanette C. Tecson and Felix B. Desiderio, Jr., Petitioners, versus Commission on Elections, Ronald Allan Kelley Poe (a.k.a. "Fernando Poe, Jr.,) and Victorino X. Fornier, Respondents," and G. R. No. 161634, entitled "Zoilo Antonio Velez, Petitioner, versus Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr., Respondent," for want of jurisdiction. 2. G. R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus Hon. Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr.," for failure to show grave abuse of discretion on the part of respondent Commission on Elections in dismissing the petition in SPA No. 04-003. No Costs. SO ORDERED.

G.R. No. 118597 July 14, 1995 JOKER P. ARROYO, petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL (HRET) and AUGUSTO L. SYJUCO, JR., respondents.

FRANCISCO, J.: Congressional candidate private respondent Augusto L. Syjuco, Jr., filed an election protest before public respondent House of Representatives Electoral Tribunal (HRET) five days after the Makati board of canvassers proclaimed petitioner Joker P. Arroyo the duly elected congressman for the lone district of Makati in the May 11, 1992 synchronized national and local elections. Essentially premised on alleged irregularities/anomalies in the tabulation and entries of votes and massive fraud, private respondent Syjuco sought the revision and recounting of ballots cast in 1,292 out of the total 1,714 precincts of Makati from which result he aimed to be declared as the duly elected congressman of Makati. Petitioner filed a counter-protest questioning the residence qualification of private respondent Syjuco, but the same was dismissed by public respondent HRET. As prayed for by private respondent, revision of the ballots was undertaken, but not without serious irregularities having been unearthed in the course thereof. Tasked by public respondent HRET to investigate on the matter, now retired Supreme Court Justice Emilio Gancayco confirmed the irregularities and anomalies engineered by some HRET officials and personnel. 1 The findings contained in Justice Gancayco's Report and Recommendation were aptly
summarized in the "Dissenting Opinion" of Justice Bidin in this wise:

In his Report and Recommendation, Justice Gancayco found, in essence, that the respondent HRET employees, while taking advantage of their official authority and control over the operational details of the revision of ballots, and for corrupt motives, subverted the revision exercise in at least three (3) protest cases, including this case (HRET Case No. 92-019), by maintaining a pool of individuals subject to their control which were offered or foisted upon party litigants as their revisors. Once functioning as party-revisors, these individuals implemented instructions given by the respondent HRET employees to pilfer, dump (i.e., place ballots voted for one party with other ballots which do not indicate votes for either party such as unclaimed, stray, spoiled or unused ballots, or ballots for other candidates), and mark (in order to spoil) or fill-in ballots of one or the other of the litigants. At the core of Justice Gancayco's findings and evaluation are protested precincts in this case which exhibited cases of dumping, consistent reduction in Arroyo votes, falsification of revision reports and pilferage of ballots, as testified on by the prosecution witness, principally, Atty. William Chua and Mr. Ritchillier M. Matias. 2 On this point, Justice Gancayco declared: . . . Arroyo votes were consistently reduced at the revision and the deducted votes were found and included in the stray ballots, while Syjuco was always constant and "there were instances where ballots were deducted from the protestee (Arroyo)" and that "another modus operandi is to falsify the revision reports by intercalation, false entries or simply switching of true results of the counting. Congressman Joker Arroyo is the classic victim of this unlawful exercise." 3 At or about the time the revision was completed and with three precincts left unaccounted for, private respondent Syjuco moved for the withdrawal of these remaining unrevised protested precincts on the ground that he has presumably overtaken petitioner Arroyo's lead of 13,559 votes. With neither private respondent Syjuco nor petitioner Arroyo availing of their right to move for a technical examination after completion of revision, as provided for under Rules 42-49 of the HRET Rules, reception of their respective evidence followed. Private respondent's evidence were all documentary and voluminous at that consisting of over 200,000 pages. These exhibits, however, and which private respondent as well as public respondent HRET 4 does not seriously
dispute are in general, "mere photocopies and not certified or authenticated by comparison with the original documents or identification by any witness . . . ." 5 and were formally offered by merely asking that they be marked. On the other hand, petitioner's evidence consisted of certified true copies of the Revision Reports and election returns. 6 Despite the vigorous objection raised by petitioner with respect to the admission of and the probative value of private respondent's exhibits, public respondent HRET admitted the evidence for whatever they may be worth. 7

Thereafter, pursuant to Rule 66 of the HRET Rules, 8 petitioner and private respondent filed their respective
memoranda simultaneously. In his memorandum cum addendum, private respondent veered away from his original posture that his protest should be decided on the basis of a revision and recounting of ballots, and instead called upon public respondent HRET to decide the case on the basis of what private respondent himself expressly admits as a "truly

innovative and NON-TRADITIONAL process" the PRECINCT-LEVEL DOCUMENT-BASED EVIDENCES. Private respondent thus averred, among others, that:

2.3. Scope and Emphasis of the Instant Protest case. 2.3.1. Protestant implores the Tribunal to take special and careful NOTE of the fact that while one cannot deny that adjudication of the REGULAR protest case generally rests on the result and outcome derived from the revision and subsequent appreciation of the BALLOTS which are disputed and contested by the parties in the course of the revision proceedings in this particular instance, the protestant has opted to resort to a truly innovative and NON-TRADITIONAL process, by undertaking . . . our most concerted efforts in identifying and presenting such extensive numbers of . . . what protestant has denominated as PRECINCT-LEVEL DOCUMENT-BASED EVIDENCES (sic). 2.3.2. Thus, readily discernible, not only from the comprehensive ADDENDUM of protestant, but more so from the volumes of documentary exhibits presented, adduced and admitted, is the relentless pursuit undertaken by protestant to locate most relevant electoral documents used not only during the actual balloting/voting stage, but also those availed of even much earlier, as early (as) the time of the registration of voters. Such resourcefulness had undoubtedly resulted in the accumulation of what has now been appropriately coined by protestant as "Precinct-Level, Document-Based Evidences." xxx xxx xxx 2.3.5. However, significant and material as they are, the results gathered from the ordinary and traditional BALLOT revision process, do not constitute the ONUS of protestant('s) case. From protestant's point of view, "the ballot(s) themselves bear only incidental significance in our chosen approach, because, in our world of cause and effect, the ballots are mere effects of the documentbased anomalies. . . . ." [ADDENDUM, D-3; Presentation, Part 2, Revision of Ballots]. For truly, the CONCENTRATION . . . the emphasis is on the Precinct-Level Document-Based Evidence. 2.3.6. And in so concentrating, the Tribunal should realize that the protestant, even as early as the filing of the protest soon after protestee's proclamation, was fully aware that in disputing the sham victory of protestee, the anticipated/expected results of the regular, traditional and normal process of REVISION of ballots, would, by itself, be unavailing, and insufficient to overturn protestee's supposed victory. 2.3.7. Hence, when in the ADDENDUM, there is a continuing reference to the GRAND PATTERN OF MASSIVE DOCUMENT-BASED FRAUDS (sic) AT PRECINCT LEVEL, such is simply in support of the initial allegation and pronouncement contained in the original protest, where protestant has asserted most strongly that "There was massive fraud in the above-protested precinct." . . . and that the protest was instituted precisely "in order that the massive fraud perpetrated against the protestant shall be corrected" . . . . xxx xxx xxx [iv] Protestee most definitely failed to comprehend the very CORE of protestant's electoral protest. His was devoted to the traditional and normal BALLOT-BASED procedure, where protestee pounds recklessly and incessantly on alleged irregularities and anomalies in the ballots during the REVISION, completely blocking his mind to the fact that protestant's action is founded principally and mainly on electoral anomalies which occurred long BEFORE the revision was ever conducted; ANOMALIES in the precinct level, committed even before the elections of May 11, 1992, like in the voters' registration process; and also ANOMALIES during the election day, at the actual balloting. xxx xxx xxx [vii] On the other hand, as the proponent of the electoral protest, herein protestant was well-aware from the moment of commencement of the protest that to overcome a substantial margin of well over 12,000 votes, the revision of the ballots alone would not suffice. xxx xxx xxx 4.2. Besides, as discussed in detail above, protestant's protest case rests NOT on the results of the revision, which is categorized as "incidental"; but mainly on the broader and more equitable NONTRADITIONAL determination of the existence of the PRECINCT-LEVEL DOCUMENT-BASED ANOMALIES, minutely detailed in the ADDENDUM, and its supporting evidence. (emphasis supplied;Ibid., pp. 14-16) 9 By reason of private respondent's new allegations, public respondent HRET ordered him to show cause why his protest should not be dismissed. The "show-cause" order reads in part:

It appearing from the memorandum and addendum filed by protestant Syjuco, after revision of the ballots case in the 1,292 protested precincts as prayed for in his Amended Protest, that inter alia, herein protestant was well-aware from the moment of the commencement of the protest that to overcome a substantial margin of well over 12,000 votes, the revision of ballots alone, would not suffice, and that the electoral protest case rests "NOT" on the results of the revision which he considers as merely "incidental" to the broader and more equitable NON-TRADITIONAL determination of the existence of the PRECINCT-LEVEL DOCUMENT-BASED ANOMALIES' (pp. 14-15; 16), without, however, demonstrating any legal basis or implementing procedures therefor; it appearing further that protestant Syjuco's memorandum and addendum appear to incorporate substantial amendments which broaden the scope of his protest, change his theory of the case at this stage of the proceedings or introduce additional causes of action in violation of Rule 28. Revised Rules of the Tribunal, . . . ." (Res. No. 93-277) 10 However, by a 6-3 vote (the six Congressmen-members as against the three Justices-members), public respondent HRET resolved not to dismiss the protest, to continue with the examination and evaluation of the evidence on record, and thereafter to decide the case on the merits. The Resolution was issued on February 15, 1994. In their dissenting opinion, the three (3) Justices-members had this to say: . . . that protestant's radical shift in his cause of action from the original and traditional ballot revision process to his "innovative and non-traditional process", which he now calls precinct-level documentbased anomalies, has no legal precedent; it constitutes a substantial amendment, which if considered, will broaden the scope of the electoral protest or introduce an additional cause of action in violation of Rule 28 of the Revised Rules of the Tribunal. xxx xxx xxx Since the allegation of the protest and its prayer calls for recounting and revision of the ballots in order that the alleged massive fraud perpetrated against protestant shall be corrected, the instant protest should be decided in accordance with the tradition process of recounting and revision (and ultimately appreciation) of ballots as provided by the Rules of the Tribunal and not by any innovative and non-traditional process denominated as precinct-level document-based evidence alleged in protestant's memorandum. Nonetheless, protestant was candid enough to admit in his memorandum "that to overcome a substantial margin of all over 12,000 votes, the revision of ballots alone would not suffice." However, to keep his protest alive, after the adverse result of the revision, protestant has to devise the broader and (allegedly) more equitable non-traditional determination of the existence of precinct-level document-based anomalies' even if the same is not authorized by law nor even alleged in his protest.11 Petitioner moved to dismiss the protest but to no avail. No hearings were conducted thereafter. Then on January 25, 1995, public respondent HRET, by the same vote of six Congressmen-members against three Justices-members, rendered its now assailed Decision annulling petitioner Arroyo's proclamation and declaring private respondent Syjuco as the duly elected congressman. The dispositive portion of the Decision reads: WHEREFORE, judgment is hereby rendered: 1. ANNULLING and SETTING ASIDE the proclamation of Protestee JOKER P. ARROYO. 2. DECLARING Protestant AUGUSTO L. SYJUCO, JR. as the duly elected Representative, Lone District of Makati, National Capital Region, for having obtained, after due revision and appreciation, a plurality of 1,565 votes, over the second placer Protestee Joker P. Arroyo, and for not being disqualified from holding said office. In view of the seriousness of the massive frauds, irregularities and violations of election laws found in this case and in conformity with the constitutional mandate of the Commission on Elections "to prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses and malpractices" (par. (6), Sec. 2, ART. IX-C, 1987 Constitution), the Tribunal, Resolved to REFER this case to the Commission on Elections for appropriate actions, including but not limited to, investigation of any and all parties concerned, or who may have participated in said violations or frauds committed. On any irregularities or offenses in this case, found to have been committed by any public officers and employees, during the May, 11, 1992 electoral processes, involving misuse of public office, in violation of the constitutional provision that "Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modes lives." (SEC. 1, ART. XI, 1987 Constitution), the Tribunal also Resolved to REFER to the Office of the Special Prosecutor

(SEC. 2. ART. XI, 1987 Constitution) for appropriate actions, including but not limited to, investigation of any and all public officers and employees concerned who may have participated in said irregularities or offenses, or who may have been negligent in the performance of their duties. For the foregoing purposes, and if requested by the Commission on Elections and/or the Office of the Special Prosecutor, records or copies of this case shall be made available or forwarded to them for their reference or evidence. Costs are charged against Protestee Arroyo, pursuant to Rule 36 of the Tribunal. As soon as this Decision becomes final, notice and copies thereof shall be sent to the President of the Philippines, the House of Representatives through the Speaker, and the Commission on Audit, through its Chairman, pursuant to Rule 73 of the Revised Rules of the House of Representatives Electoral Tribunal. SO ORDERED. 12 Without filing a motion for reconsideration of public respondent HRET's decision, petitioner Arroyo filed the instant petition setting forth the following issues: A. Whether or not public respondent acted with grave abuse of discretion and without jurisdiction when it refused to dismiss HRET Case No. 92-109 after Syjuco had belatedly changed the theory of his case and introduced new issues and, thereafter, when it proceeded with the protest. B. Whether or not the HRET's Decision in Case No. 92-019 dated 25 January 1995 was rendered in violation of petitioner's right to due process. C. Whether or not public respondent acted capriciously, arbitrarily, and with grave abuse of discretion when it: (1) Rejected long standing legal doctrines and precedents on elections and annulment; (2) Disregard the people's right to suffrage; (3) Ignored the basic rules of evidence and breached the internal procedures of the Tribunal; and (4) Gravely and/or deliberately misapprehended the facts. 13 Briefly stated, the crucial question involved in this case is: Did public respondent HRET commit grave abuse of discretion in (1) proceeding to decide the election protest based on private respondent's "precinct level document based anomalies/evidence" theory; (2) rendering judgment on the kind of evidence before it and the manner in which the evidence was procured, and (3) annulling election results in some contested precincts? I. The "precinct level document based anomalies/evidence" theory However guised or justified by private respondent, this innovative theory he introduced for the first time in his memorandum cum addendum indeed broadened the scope of the election protest beyond what he originally soughtthe mere revision of ballots. From his initial prayer for revision which lays primary, if not exclusive emphasis on the physical recount and appreciation of ballots alone, private respondent's belated attempt to inject this theory at the memorandum stage calls for presentation of evidence (consisting of thousands of documents) aside from, or other than, the ballots themselves. By having done so, private respondent in fact intended to completely abandon the process and results of the revision and thereafter sought to rely on his brainchild process he fondly coined as "precinct-level document-based evidence." This is clearly substantial amendment of the election protest expressly proscribed by Rule 28 of the HRET internal rules which reads: After the expiration of the period for filing of the protest, counter-protest or petition for quo warranto, substantial amendments which broaden the scope of the action or introduce an additional cause of action shall not be allowed. . . . . The majority members of the Tribunal in fact had already sensed the impropriety of private respondent's belated shift of theory when it issued its "show-cause" order requiring the latter to explain why his election protest should not be dismissed. But the majority violated with open eyes its own rules when they resolved not to dismiss the protest a clear indication of grave abuse of discretion. The least that public respondent HRET could have done thereafter was to conduct further hearing so that petitioner Arroyo may have examined, objected to and adduced evidence controverting private respondent Syjuco's "precinct-level document-based evidence" despite the time within which

the parties are allowed to present their evidence has already lapsed. 14 But nothing in the records indicates that one
was conducted. Petitioner's right to due process was clearly violated at this particular stage of the proceedings.

Granting that private respondent's change in theory (being a substantial amendment) is merely disallowed and not a valid ground for the outright dismissal of his election protest, nonetheless it has been consistently held that substantial amendments to the protest maybe allowed only within the same period for the filing of the election protest 15 which, under Rule 16 of the HRET Rules, is ten (10) days after the proclamation of the winner. Private
respondent's "precinct-level document-based anomalies/evidence" theory having been introduced only at the homestretch of the proceedings, he is bound by the issue which he essentially raised in his election protest and that is, a revision of the ballots will confirm his victory and the irregularities/anomalies and massive fraud foisted upon him during the 1992 synchronized elections. For the rule in an election protest is that the protestant or counterprotestant must stand or fall upon the issues he had raised in his original or amended pleading filed prior to the lapse of the statutory period for the filing of protest or counter protest. 16 (emphasis supplied) Private respondent is therefore bound by the final results of the revision confirming petitioner's victory over him by a plurality of 17 13,092 votes. Petitioner's inevitable victory in the revision was even conceded to by private respondent himself when he stated in his memorandum cum addendum that:

. . . in disputing the sham victory of protestee, the anticipated/expected results of the regular, traditional and normal process of REVISION of ballots, would, by itself, be unavailing and insufficient to overturn protestee's supposed victory (quoted on p. 6 of this decision). This statement is clearly an admission against private respondent's own interest equally binding and conclusive upon him, there being no showing that he made it through palpable mistake (Section 4, Rule 129, Rules of Court). Thus, the final results of the revision and the admission of his eventual loss therein were sufficient reasons to confirm at a much earlier time petitioner Arroyo's victory over private respondent Syjuco. These are the offshoots of the theory and cause of action private respondent Syjuco originally banked on (revision). Private respondent cannot escape its adverse effects by later on contriving unprecedented and wholly untested processes or theories such as the "precinct-level document-based anomalies/evidence", the applicable and well-settled principle being "a party is bound by the theory he adopts and by the cause of action he stands on and cannot be permitted after having lost thereon to repudiate his theory and cause of action and adopt another and seek to re-litigate the matter anew either in the same forum or on appeal". 18 This is in essence putting private respondent in estoppel to question the revision. In
this connection, what the Court said in "Lucero vs. De Guzman" (45 Phil. 852, 871-872), becomes meaningfully relevant:

When the boxes are opened and the truth concerning an election made accessible, considerations of public policy require that the proof thus supplied should be accepted. The public at large has the deepest concern in the integrity of elections, and this public interest must be regarded as well as the technical rights of the litigants themselves. It would be most scandalous for us to sanction a practice under which a party to an election contest could be permitted to force an examination of the ballots and when the result is found unfavorable to himself require the court to cover up the wrong, with consequences injurious to the cause of justice. When boxes are opened at the instance of the parties to the contest, they are estopped from questioning the true result of the revision whatever that result may be. The plain duty of the court, under the circumstances presented in this case, was to proceed to a revision of the count, with the report of the commissioners before him, and assisted by the facts appearing in those documents. II. The kind of evidence used and how they were procured a) The majority members of public respondent HRET undisputedly admitted and appreciated as evidence mere photocopies of election-related documents when there is not even the slightest showing that the original or even certified true copies thereof cannot be reasonably produced before the Tribunal. These photocopies violate the best evidence rule 19 which is simply meant that no evidence shall be received which is merely substitutionary in its nature so
long as the original evidence can be had. 20 They should have been rejected altogether unworthy of any probative value at all, being incompetent pieces of evidence.

b) Certain vital election documents (such as certified xerox copy of the number of registered voters per precinct and photocopies of statements of votes) were procured at the sole instance of the ponente of the majority decision21 which, as the Tribunal readily admitted, were never offered in evidence by either of the parties. 22 Aside from
that, acting upon the self-serving allegation of private respondent Syjuco supported by mere photocopied election documents that around 12,075 signatures of voters scattered in 777 precincts were forged or falsified, the majority congressmen-members of the Tribunal by themselves without the participation of any of the three (3) remaining Justicesmembers, declared that 10,484 of the contested signature are fake. 23 This course of action grossly violates not only Rule 68 of the Tribunal's own rules which requires that all questions shall be submitted to the Tribunal as a body, but also Rule 5 thereof which further requires the presence of at least one (1) Justice-member to constitute a valid quorum. In order, therefore, that any and all matters presented before it can be properly addressed and considered, the Tribunal is mandated to act as a collegial body. And without collective effort as enjoined by Rule 68 but qualified by Rule 5 in this particular and most crucial stage of the proceedings, any resulting action purporting to be the official act the Tribunal should be, as it is hereby, struck down as highly irregular. The Court in "Free Employment and Workers Association (FEWA) vs. CIR" (14 SCRA 781, 785) held that:

. . . the Commissioners cannot act upon their own information, as could jurors in primitive days. All parties must be fully apprised of the evidence submitted or to be considered, and must be given opportunity to cross-examine witnesses, to inspect documents, and to offer evidence in explanation or rebuttal. In no other way can a party maintain its rights or make its defense. In no other way can it test the sufficiency of the facts to support the finding; for otherwise, even though it appeared that the order was without evidence, the manifest deficiency could always be explained on the theory that the Commission had before it extraneous, unknown, but presumptively sufficient information to support the finding. (United States v. Baltimore & O.S.W.R. Co., 226 U.S. 14, ante, 104, 33 Sup. Ct. Rep. 5) III. Nullification of election results The power to annul an election should be exercised with the greatest care as it involves the free and fair expression of the popular will. It is only in extreme cases of fraud and under circumstances which demonstrate to the fullest degree a fundamental and wanton disregard of the law that elections are annulled, and then only when it becomes impossible to take any other step. 24 Thus, as a guide for the exercise of this power, no less than public respondent
Electoral Tribunal itself has laid down two mandatory requisites for the annulment of election returns based on fraud, irregularities or terrorism, namely (1) that more than fifty percent (50%) of the total number of votes in the precinct or precincts were involved, and (2) that the votes must be shown to have been affected or vitiated by such fraud, irregularities or terrorism. 25 Public respondent HRET proceeded to annul 50,000 26 votes without a dint of compliance with these requisites as it annulled the results on the basis of lost or destroyed ballots despite the presence and availability of election return and other competent secondary evidence whose authenticity were never questioned, 27 and on the basis of alleged forged signatures which were never competently proved and substantiated by private respondent. 28 Further, the tribunal nullified the 10% margin in several contested precincts with alleged substitute voting which the dissenting opinion correctly observed as "a far cry from the existing 50% rule". 29 What is even worse is that the nullification of these votes was based on inadmissible documents some of them not offered in evidence by private respondent. The Court cannot countenance such blatant nullification of votes as it fails to comply with the established standard on annulment. Elections should never be held void unless they are clearly illegal; it is the duty of the court to sustain an election authorized by law if it has been so conducted as to give a free and fair expression of the popular will, and the actual result thereof is clearly ascertained. 30

Additionally, public respondent HRET disregarded election results on several precincts on the basis of omissions committed either through mere oversight or plain negligence on the part of election officials or employees. The bulk of these omissions consisted of lack or absence of the signature of the chairman of the Board of Election Inspectors on the voter's affidavits or lists of voters/voting records, absence or excess of detachable coupons, number of detachable coupons not tallying with the number of ballots, and missing voter's lists. We find that these omissions, mainly administrative in nature, cannot be used as a ground to nullify election results in the absence of a clear showing of fraud. Voters duly registered and who have exercised their right of suffrage should not be penalized by disregarding and junking their votes due to omissions not of their own making. The settled rule is that in the absence of fraud, mere irregularities or omissions committed by election officials which do not subvert the expression of popular will, as in this case, cannot countenance the nullification of election results. 31 Corollarily, the misconduct of
election officers or irregularities on their part will not justify rejecting the whole vote of a precinct (as was done in this case) where it does not appear that the result was affected thereby, even though the circumstances may be such as to subject the officers to punishment. 32 These omissions are not decisive since actual voting and election by registered voters had taken place in the questioned precincts. 33 The Court, therefore, cannot stamp with approval the conduct exhibited by public respondent HRET as it was attended by arbitrariness.

From the above findings, it now becomes apparent why private respondent's argument that the petition should be dismissed for failure to first file a motion for reconsideration of public respondent HRET's majority decision, is untenable. Indeed, the general rule is that a tribunal rendering a decision must be given an opportunity to rectify its error through a motion for reconsideration. However, the partiality of the majority of the members of the Electoral Tribunal having been shown through their concerted action to disregard tribunal rules and the basic rules on evidence, recourse for a reconsideration of its decision becomes nugatory and an immediate recourse to this Court can be had based on the fundamental principle of due process. And it is well-settled that a prior motion for reconsideration can be dispensed with if, as in this case, petitioner's fundamental right to due process was violated. 34 All told, the procedural flaws which marred the proceedings in the public respondent HRET from the time private respondent's "precinct-level document based anomalies/evidence" theory was embraced by the majority members up to the rendition of judgment suffice in themselves to render the public respondent HRET's majority decision declaring private respondent Syjuco as the duly elected congressman of the then lone district of Makati a complete nullity. The persistent and deliberate violation of the Tribunal's own governing rules and of even the most basic rules of evidence cannot be justified by simply invoking that procedural rules should be liberally construed. For even if Rule 2 of the Tribunal's internal rules states that: In case of reasonable doubt, these rules shall be liberally construed in order to achieve a just, expeditions and inexpensive determination and disposition of every contest brought before the Tribunal. Rule 80 of the very same internal rules expressly makes the Rules of Court, Supreme Court decisions, and Electoral Tribunal decisions of suppletory application. In fact, public respondent HRET quite consistently in the past ultimately relied on the rules of evidence established by the Rules of Court in disposing election cases brought before it. To

name a pertinent few: "Cuneta vs. Claudio" (HRET Adm. Case No. 92-010, Feb. 24, 1994); "Hernandez vs. Sanchez" (HRET Case No. 92-012, July 27, 1993); "Loyola vs. Dragon" (HRET Case No. 92-026, Jan. 31, 1994); and "Claver vs. Bulut" (HRET Case No. 92-015, Nov. 23, 1993). More specifically, in the "Cuneta" case, the HRET struck down certain foreign documents presented by petitioner Cuneta as being inadmissible under the best evidence rule (Section 4, Rule 130, Rules of Court) and for failure to meet the requirements for the admissibility in evidence of foreign documents under Sections 24 and 25, Rule 132 of the Rules of Court as applied in the "Hernandez" case and in "De Leon vs. Sanchez" (HRET Case No. 92-013). In the "Loyola" case, certain pictures presented by protestant Loyola depicting the unlawful display of protestee Dragon's streamer outside the authorized areas were not given any probative value by the HRET for their lack of identification and authentication by any witness other than protestant Loyola who presented the pictures by himself. And in the "Claver" case, the HRET said that it can only consider documents formally offered in evidence, a ruling made apparently pursuant to Rule 60 of the HRET internal rules which provides that: Evidence not formally presented shall be deemed waived and shall not be considered by the Tribunal in deciding the case. and as likewise provided in Section 35, Rule 132 of the Rules of Court which reads: The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. But why the change of heart and open defiance in this case when the very same objections raised by public respondent HRET in these cases squarely apply to the entirety of private respondent's massive documentary evidence? If the Court, in striking down the majority decision of public respondent HRET, pays unwavering reverence to the rules of evidence as provided by the Rules of Court and jurisprudence, it is because they have been tested through years of experience as the most effective means of ferreting out the truth in any judicial controversy. And the Court will not allow even the slightest diminution of, much less a complete and brazen departure from these time-honored rules especially when the will of the electorate as expressed through the ballot, is at stake. Rules and uniformity of procedure are as essential to procure truth and exactness in elections as in anything else. 35Thus, with the patent
nullity of the entire proceedings before the public respondent HRET and its majority decision in the election protest filed by private respondent, petitioner's proclamation as the winning congressman of the then lone district of Makati is deemed not to have been challenged at all.

And finally, in a Resolution dated March 14, 1995 the Court required private respondent to explain why he should not be held for indirect contempt since his statements in his Addendum which he prepared without aid of counsel appear to seriously undermine the integrity of some members of the Court, to wit: xxx xxx xxx Despite Mr. Arroyo's unconscionable barrage on the six (6) congressional membership in the HRET, records will show that I have not questioned the integrity of any of the three (3) Justices, despite the fact that on various occasions, I have been convinced, in my heart, that at least two (2) of them were working for protestee Arroyo in HRET deliberations and the resultant delays therein. (p. 2) xxx xxx xxx There may also be linkages between protestee Arroyo and Justice Flerida Ruth Romero, about whom unkind rumors are rife that Her Honor is "gumagapang" in the Supreme Court, for Arroyo. (p. 2) xxx xxx xxx . . . we submit that like Caesar's wife this case at bar should be handled by magistrates who have not "shared a bed" with protestee Arroyo, at one time or another. (p. 3) xxx xxx xxx If Arroyo had been a stranger to Justice Bidin, could Arroyo have moved Justice Bidin, through a mere phone call, to violate HRET Rule 38? (p. 10). The Court notes that even a Justice who is not a member of the HRET has been made the object of calumny in extremely vulgar language by imputing linkages between her and petitioner, although a thinly veiled attempt was made by private respondent to absolve himself by ascribing such imputation to "unkind rumors". In compliance thereto private respondent filed an explanation dated March 25, 1995. In his explanation, private respondent averred that he merely expressed a simple citizen's grievance in accordance to his observations and based on his firm convictions and beliefs and that his statements were not aimed at seriously undermining the

integrity of some Members of the Court. Private respondent, in closing, offered his apology. We find the explanation unsatisfactory. Implicit in his statements is the notion that aforesaid Justices are insensible and partial in the adjudication of the case which could make their actuation suspect. The statements make it plain that said Justices were not free from appearance of impropriety as it emphasized that said Justices must be above suspicion at all times like Ceasar's wife. Indeed, the above statements manifest the idea that the dispensation of justice can be compromised through unsubstantiated linkages. These statements not only undermine the integrity of some members of this Court but also degrade the administration of justice. To be proscribed then is the use of unnecessary language which jeopardizes high esteem in courts, creates or promotes distrust in judicial administration, or which could have the effect of "harboring and encouraging discontent which, in many cases, is the source of disorder, thus undermining the foundation upon which those who are aggrieved turn for protection and relief. 36 Want of intention to undermine the integrity of the Court is no excuse for the language employed by private respondent for it is a well-known and established rule that derogatory words are to be taken in the ordinary meaning attached to them by impartial observers (Paragas v. Cruz, 14 SCRA 809, 812; In re Franco, 67 Phil. 313, 316; Rheem of the Philippines v. Ferrer, supra at p. 446). Finding private respondent's statements contemptous and uncalled for he is hereby declared guilty of indirect contempt. WHEREFORE, in view of the foregoing, the petition is hereby GRANTED, and public respondent HRET's majority decision dated January 25, 1995 is SET ASIDE. Private respondent Augusto L. Syjuco, Jr., having been found guilty of indirect contempt, is hereby fined the amount of one thousand pesos (P1,000.00) to be paid within five (5) days from receipt of this decision. SO ORDERED.

G.R. No. 157004

July 4, 2003

SALLY A. LEE, petitioner, vs. COMMISSION ON ELECTIONS and LEOVIC R. DIONEDA, respondents. CARPIO-MORALES, J.: Before this Court is a petition for certiorari with prayer for a temporary restraining order/ writ of preliminary injunction under Rule 64 of the 1997 Rules of Civil Procedure seeking to set aside the February 11, 2003 En Banc Resolution1 of the Commission on Elections (COMELEC) in SPC No. 01-124. Sally A. Lee (petitioner) and Leovic R. Dioneda (private respondent) were candidates for mayor of Sorsogon City, Sorsogon in the May 14, 2001 elections. During the canvassing of the election returns, counsel for private respondent objected to the inclusion of Election Return No. 41150266 for Precinct No. 28A2 in barangay Bucalbucalan, Sorsogon City on the grounds that 1) no entries were made for the position of congressman, and 2) Laban ng Demokratikong Pilipino (LDP) watchers were utilized to fill up election returns.2 In her opposition to private respondents objection, petitioner alleged that 1) the omitted entry in the election return pertains to the position of congressman which cannot be a subject of pre-proclamation controversy, 2) the utilization of the watchers, who were under the direct supervision of the Board of Election Inspectors (BEI), was limited only to the filling up of the entries affecting the party-list and justified by the severe lack of personnel to perform the task, and 3) the alleged defect does not affect the integrity of the election return.3 On May 18, 2001, the Board of Canvassers (BOC), finding that the 1) questioned election return was clear and regular on its face, 2) there was no pre-proclamation for members of the House of Representatives and party list, and 3) the grounds relied upon by private respondent are all directed against the proceedings of the BEI and not the BOC, ruled for the inclusion of the return.4 Private respondent thereupon filed on the same day a notice of appeal of the BOC ruling.5 In the meantime, or on May 19, 2001, the BOC proclaimed the winning candidates, including petitioner as city mayor.6 Private respondent thus filed on May 23, 2001 before the COMELEC a petition,7 docketed as SPC No. 01-124, assailing the ruling of the BOC and praying for the exclusion of the questioned election return and the annulment of petitioners proclamation. Petitioner filed her answer8 to the COMELEC petition, praying for its dismissal. By Resolution9 of January 10, 2003, the COMELEC Second Division granted the petition of private respondent and accordingly excluded the questioned return from the canvass and nullified the proclamation of petitioner. The dispositive portion of the resolution reads: WHEREFORE, premises considered, the petition is GRANTED. The order of respondent Board dated May 18, 2001 including Election Return No. 41150266 from Precinct No. 28A2 of Bucalbucalan, Sorsogon City in the May 14, 2001 Elections canvass of Sorsogon City is hereby REVERSED AND SET ASIDE. Said election return is hereby excluded from the May 14, 2001 Elections canvass of Sorsogon City.Further, the proclamation of private respondent Sally Lee on May 19, 2001 is hereby declared NULL and VOID ab initio pursuant to Section 20 (i) of RA 7166. A new City Board of Canvassers of Sorsogon City is hereby constituted to be composed of the following COMELEC lawyers: 1. Atty. Nelia Aureus Chairperson 2. Atty. Allen Francis Abaya Vice-Chairperson 3. Atty. Emilio Santos Secretary The new City Board of Canvassers of Sorsogon City is hereby directed to prepare a new Statement of Votes for the position of mayor of Sorsogon City excluding the election return from Precinct No. 28A2 of Bucalbucalan, Sorsogon City and, based on said canvass in the new Statement of Votes, proceed to proclaim the winning candidate for mayor of Sorsogon City.

The original City Board of Canvassers of Sorsogon City is hereby directed to transmit to the new Board all COMELEC forms and documents used in the canvassing including the Boards copies of all election returns canvassed in the May 14, 2001 Elections in Sorsogon City. Finally, the Law Department is directed to conduct the necessary investigation of the members of the BEI of Precinct No. 28A2 of Bucalbucalan, Sorsogon City for the possible commission of election offenses. SO ORDERED. (Emphasis and underscoring supplied) Petitioners Motion for Reconsideration10 of the COMELEC Second Division January 10, 2003 Resolution was denied by the COMELEC En Banc, by Resolution11 of February 11, 2003 the dispositive portion of which reads: WHEREFORE, in view of the foregoing, the Commission En Banc DENIES the Motion for Reconsideration for lack of merit. The Resolution of the Second Division promulgated on January 10, 2003 is hereby AFFIRMED. The New City Board of Canvassers of Sorsogon City constituted by said Resolution is hereby ORDERED to convene immediately, prepare a new Statement of Votes excluding the election returns from Precinct No. 28A[2], Bucalbucalan, Sorsogon City, and on the basis of the new Statement of Votes, proclaim the winning candidate for mayor of Sorsogon City. The original City Board of Canvassers is directed to transmit to the new City Board of Canvassers the COMELEC documents they used in their canvass. In the event however that the old City Board of Canvassers, for any reason, fail to deliver to the new City Board of Canvassers the COMELEC documents used in the canvassing, specifically the old statement of votes and the election return for Precinct No. 28A[2], prior to date of canvass, the new Board is hereby authorized to use the COMELEC copy of said documents. This resolution is immediately executory. SO ORDERED. Hence, the present petition, alleging that: I. PUBLIC RESPONDENT IS WITHOUT JURISDICTION TO GO BEYOND OR BEHIND ELECTION RETURNS AND INVESTIGATE ELECTION IRREGULARITIES IN PRE-PROCLAMATION CONTROVERSY. II. PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION WHEN IT RENDERED THE ASSAILED RESOLUTIONS DESPITE THE CLEAR AND APPARENT LACK OF FACTUAL AND LEGAL BASIS TO SUPPORT THE SAME. III. PUBLIC RESPONDENT COMMITTED PROCEDURAL LAPSES IN THE PROMULGATION OF THE ASSAILED RESOLUTIONS WHICH AFFECTS THE FAIRNESS STANDARD.12 On February 18, 2003, this Court issued a Status Quo Ante Order13 enjoining the COMELEC to observe the status quo prevailing before the filing of the petition and refrain from implementing the assailed January 10, 2003 and February 11, 2003 Resolutions until further orders from this Court. Section 243 of the Omnibus Election Code provides: Section 243. Issues that may be raised in a pre-proclamation controversy. The following shall be proper issues that may be raised in a pre-proclamation controversy: (a) Illegal composition or proceeding of the board of canvassers; (b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235, and 236 of this Code; (c )The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and

(d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates. (Emphasis supplied) On the first assigned error, petitioner argues that as the case at bar is a pre-proclamation controversy, the COMELEC is "restricted to an examination of the election returns and is without jurisdiction to go [beyond] or behind them and investigate election irregularities,"14 citing the case of Loong v. Commission on Elections15 which held: xxx We have recently reiterated the Dianalan and Dimaporo rulings in the case of Alfonso v. Commission on Elections, promulgated in June, 1994. The prevailing doctrine in this jurisdiction, therefore, is that as long as the returns appear to be authentic and duly accomplished on their face, the Board of Canvassers cannot look beyond or behind them to verify the allegations of irregularities in the casting or the counting of the votes. Corollarily, technical examination of voting paraphernalia involving analysis and comparison of voters signatures and thumbprints thereon is prohibited in pre-proclamation cases which are mandated by law to be expeditiously resolved without involving evidence aliunde and examination of voluminous documents which take up much time and cause delay in defeat of the public policy underlying the summary nature of pre-proclamation controversies. x x x (Italics in the original; emphasis and underscoring supplied) Petitioners argument is bereft of merit. The doctrine cited by petitioner presupposes that the returns "appear to be authentic and duly accomplished on their face." Where, as in the case at bar, there is a prima facie showing that the return is not genuine, several entries having been omitted in the questioned election return, the doctrine does not apply. The COMELEC is thus not powerless to determine if there is basis for the exclusion of the questioned election return. As to the second error raised by petitioner, she claims that contrary to the findings of the COMELEC, there is no evidence on record that an LDP watcher participated in the preparation of the questioned election return. She posits that the omission of entries was not done with malice or bad faith nor meant to subvert the true will of the people, and that the election return in question is clear and regular on its face, duly authenticated by the signatures and thumbmarks of the six watchers and all the members of the BEI. Finally, she posits that an incomplete election return is not necessarily spurious, manufactured or fraudulent to necessitate its exclusion.16 While the BOC indeed found the questioned election return clear and regular on its face, it is not conclusive on the COMELEC nor on this Court in light of what transpired during the proceedings before the BOC in which the members of the BEI were examined and gave the following explanations behind the omission of entries for the position of congressman: xxx APP DIMAANO: Ito ba ang mga papeles o election return na inyong ginawa sa presinto. MS. LADUB: Opo. APP DIMAANO: Opo. Ngayon, page one tungkol senators, okay. Sa party list, meron kayong inilagay na resulta ng botohan. Punta tayo sa page one noong local positions, tignan nyo po sa parte ng congressman kung ano ang nakalagay. Kayo po una kayo po Ginang Jamisal. MS. JAMISAL: Wala ho. APP DIMAANO: Wala ho. Kayo po Gina Labayo. MS. LABAYO: Wala ho. APP DIMAANO: Wala ho. Kayo ho Ladub Ginang Ladub. MS. LADUB. Wala ho. APP DIMAANO. Okay, doon sa ibang position, governor, vice governor, board member, city . . . anong masasabi ninyo? MS. JAMISAL: Okay naman po. APP DIMAANO: Meron lahat meron doon. Balik tayo doon sa position noong congressman at saka representative.

APP DIMAANO: Maari bang sabihin ninyo sa amin kung bakit ito inamin niyo at nakikita rito sa dokumentong ito sa election return na wala ni anong marka, ni pangalan at saka itong mga ano yan . . . nararapat na markings. Mauna ka Ginang Jamisal. MS. JAMISAL: Siguro ho dahil siguro medyo ano na kami over fatigue na inaantok na. yong nakita ko na mga naka-tally dito yon lang at saka may mga bilang yon lang ang pinirimahan ko dahil yon lang . . . Hindi ko na ho na ano yong sa taas may pangalan pa lang congressman hindi naitala ni Gina yong pangalan ng kandidato sa congressman kayat hindi ko na pinirmahan. So ang pinirmihan ko lang yong may mga tally.Hindi ko na na ano ho na wala pala yong congressman. Hindi ko lang nabasa ito na congressman. Kung siguro ho nakita ko lang na congressman sasabihin ko ho . . . sasabihin ko kay Gina na ilagay ang ano . . . ang kandidato sa congressman. APP DIMAANO: Kayo Ginang Ladub, ano ang paliwanang niyo. MS. LADUB: Masama ho ang pakiramdam ko. APP DIMAANO: Ano ho ba ang isaktong papel niyo noong election doon sa loob ng presinto. Taga ano ho kayo? MSA. LADUB: Nagta-tally ho. APP DIMAANO: Anong ibig sabihin ng tally. MS. LADUB: Ako pa ang humahawak nitong sa senator sa pag tally ko po. APP DIMAANO: Alin ang isaktong pinagtally-han niyo ho? Anong position? MS. LADUB: Senator. APP DIMAANO: At saka senator lang ho ba? MS. LADUB: Opo. APP DIMAANO: eh yong party list sinong . . . MS. JAMISAL: Yong iba ho, sir na ano naming, yong watcher kasi hindi pa naming kayang na ano . . . siguro naman sir walang problema . . . ATTY. FORTES: Anong presinto yan? WATCHER: 28A ATTY. FORTES: 28A. APP DIMAANO: Okay, dito tayo sa congressman sinong may in-charge dito sino? MS. JAMISAL: (Pointing to Ms. Labayo.) APP DIMAANO: Gina Labayo. Kayo ho anong masasabi niyo rito. Dapat ba ritong meron o wala. MS. LABAYO: Meron ho. APP DIMAANO: Dapat . . . meron daw. O ngayon, bakit wala? MS. LABAYO: Nakalimutan ko ho. Humihingi po ako ng tawad sa inyo. APP DIMAANO: Hindi, ipaliwanag mo lang kung bakit kayo nakalimot. Hindi naman kami nag-ano niyon. Nag-uusig kami kasi yon din ang sasabihin naming kung bakit. MS. LABAYO: Sobrang pagod po, sir. APP DIMAANO: Wala na bang ibang dahilan diyan. Wala ka na bang ibang paliwanang maliban sa nakalimot kat napapagod ka na. MS. LABAYO: (Silence.) x x x17 (Italics in the original; emphasis supplied)

As the above-quoted record of the proceedings before the BOC shows, Gina Labayo, a member of the BEI, admitted that there were supposed to be entries for the position of congressman but she forgot to record them as she was extremely tired. Such convenient explanation, without more, does not, however, appear satisfactory. Moreover, in her Answer to the original petition filed with the COMELEC, petitioner admitted that pollwatchers, who were not members of the BEI, participated in the preparation of the election return. Thus she alleged: xxx More importantly, the transcript of the proceedings (Annex "A-3" page 9 and 15) will show and prove that what were prepared and made by the pollwatchers were the entries in the TALLY BOARD and the votes cast in the Election Return for Party List Representative; x x x18 (Emphasis and underscoring omitted; italics supplied) As thus correctly ruled by the COMELEC Second Division: Votes for an important position such as congressman do not simply vanish into thin air. Those who are mandated by law to account for such votes, if mistakenly omitted, are at least expected to give a fairly reasonable account of why and how they have been omitted. Absent such explanation, doubt arises as to the authenticity of the returns and the manner of their preparation, specially in this case where a party watcher was allowed to take part in the preparation of the election return. x x x19 (Emphasis and underscoring supplied). As to the third error raised by petitioner, she argues that the January 10, 2003 Resolution of the COMELEC Second Division was promulgated without giving her notice, and that were it not for her counsels "accidental" visit to the COMELEC on January 13, 2003, said counsel would not have known that said resolution was already promulgated and the 5-day period from the date of promulgation to file a motion for reconsideration, as provided under the following provision of Rule 19 of the 1993 COMELEC Rules of Procedure, would have lapsed:20 Section 2. Period for Filing Motions for Reconsideration. A motion to reconsider a decision, resolution, order or ruling of a Division shall be filed within five (5) days from the promulgation thereof. Such motion, if not pro-forma, suspend the execution or implementation of the decision, resolution, order and ruling. And petitioner, noting that the ponente of the En Banc Resolution was not therein indicated, raises the possibility that the ponente for the Second Division Resolution and that of the En Banc Resolution were the same, thus violating Section 1, Rule 4 of the COMELEC Rules21 which reads: Section 1. Disqualification or Inhibition of Members. (a) No Member shall sit in any case in which he or his spouse or child is related to any party within the sixth civil degree of consanguinity or affinity, or in which he has publicly expressed prejudgment as may be shown by convincing proof, or in which the subject thereof is a decision promulgated by him while previously serving as presiding judge of an inferior court, without the written consent of all the parties, signed by them and entered in the records of the case; Provided, that no Member shall be the "ponente" of an en banc decision/resolution on a motion to reconsider a decision/resolution written by him in a Division. x x x (Emphasis supplied; italics in the original) In Lindo v. Commission on Elections,22 this Court held that the 5-day period for the filing of an appeal commences from the date of receipt of copy of the decision. As correctly ruled by the COMELEC: The petitioner misinterpreted the provision of Section 2, Rule 19 of the 1993 Comelec Rules of Procedure when she stated that "Unlike other cases, the reglamentary period within which a party can have the decision or resolution reviewed on motion for reconsideration runs from the date of promulgation." When not promulgated in open hearing, a simple procedural sense would dictate that the period to file a Motion for Reconsideration must have to be tolled from the date of receipt of the decision/resolution involved. Further, the doctrine laid down in the case of Lindo v. Comelec (194 SCRA 25) would have supported the proposition that the additional requirement imposed by the COMELEC Rules on advance notice of promulgation does not form part of the process of promulgation and that the failure to serve such notice in advance did not prejudice the rights of the parties and did not vitiate the validity of the decision nor of the promulgation, as the period for the unsatisfied party to move for reconsideration can be exercised not from the date of promulgation, as misconstrued by petitioner, but from her actual receipt of a copy of the resolution in question.23 (Italics in the original; emphasis supplied) As to the non-indication of the ponente of the COMELEC En Banc Resolution, petitioner merely proffers a possibility of violation of the COMELEC Rules. It is presumed, however, that an official duty has been regularly performed.24

The lack of merit of petitioners arguments notwithstanding, the COMELEC, in ordering the exclusion of the questioned return, should have determined the integrity of the ballot box, the ballot-contents of which were tallied and reflected in the return, and if it was intact, it should have ordered its opening for a recounting of the ballots if their integrity was similarly intact. So instructs Section 234 of the Omnibus Election Code which reads: Section 234. Material defects in the election returns. If it should clearly appear that some requisites in form or data had been omitted in the election returns, the board of canvassers shall call for all members of the board of election inspectors concerned by the most expeditious means, for the same board to effect the correction. Provided, That in case of the omission in the election returns of the name of any candidate and/or his corresponding votes, the board of canvassers shall require the board of election inspectors concerned to complete the necessary data in the election returns and affix therein their initials: Provided, further, That if the votes omitted in the returns cannot be ascertained by other means except by recounting the ballots, the Commission, after satisfying itself that the identity and integrity of the ballot box have not been violated, shall order the board of election inspectors to open the ballot box, and, also after satisfying itself that the integrity of the ballots therein has been duly preserved, order the board of election inspectors to count the votes for the candidate whose votes have been omitted with notice thereof to all candidates for the position involved and thereafter complete the returns. The right of a candidate to avail of this provision shall not be lost or affected by the fact that an election protest is subsequently filed by any of the candidates. (Emphasis supplied) And so does Section 235 of the same Code which provides: Section 235. When election returns appear to be tampered with or falsified. If the election returns submitted to the board of canvassers appear to be tampered with, altered or falsified after they have left the hands of the board of election inspectors under duress, force, intimidation, or prepared by persons other than the members of the board of election inspectors, the board of canvassers shall use other copies of said election returns and if necessary, the copy inside the ballot box which upon previous authority given by the Commission may be retrieved in accordance with Section 220 hereof. If the other copies of the returns are likewise tampered with, altered, falsified, not authentic, prepared under duress, force, intimidation, or prepared by persons other than the board of election inspectors, the board of canvassers or any candidate affected shall bring the matter to the attention of the Commission. The Commission shall then, after giving notice to all candidates concerned and after satisfying itself that the integrity of the ballot box and, likewise after satisfying itself that the integrity of the ballots therein has been duly preserved shall order the board of election inspectors to recount the votes of the candidates affected and prepare a new return which shall then be used by the board of canvassers as basis of the canvass. (Emphasis and underscoring supplied) Thus, this Court in Patoray v. Commission on Elections25 held: xxx As to the election return for Precinct No. 20-A, we ruled that the COMELEC erred in resorting to the Certificate of Votes in excluding the return in said precinct. Since the return was incomplete for it lacked the data as to provincial and congressional candidates, the applicable provision would be Section 234 of the Omnibus Election Code which deals with material defects in election returns. Thus, we ruled that theCOMELEC should have first determined the integrity of the ballot box, ordered the opening thereof and recounted the ballots therein after satisfying itself that the integrity of the ballots is intact. We then directed the COMELEC to issue another Order in accordance with said Decision. x x x (Italics in the original; emphasis and underscoring supplied) If the integrity of the ballot box had been violated, then there would be no need to open it. If not, and upon opening it there is evidence that the integrity of the ballots had been violated, there would be no recounting thereof, and the COMELEC would then seal the box and order its safekeeping. Thus Section 237 of the Omnibus Election Code provides: Sec. 237. When integrity of ballots is violated. If upon the opening of the ballot box as ordered by the Commission under Sections 234, 235 and 236, hereof, it should appear that there are evidence or signs of replacement, tampering or violation of the integrity of the ballots, the Commission shall not recount the ballots but shall forthwith seal the ballot box and order its safekeeping. WHEREFORE, the COMELEC is, in accordance with the foregoing discussion, hereby DIRECTED to determine within twenty days whether the integrity of the ballot box, the ballot-contents of which were tallied and reflected in the questioned return, is intact and, if in the affirmative and the integrity of the ballots is likewise intact, to order the Sorsogon City Board of Election Inspectors to recount the votes cast in Precinct No. 28A2 in Barangay Bucalbucalan, Sorsogon City and prepare a new return to serve as basis of canvass by said board; otherwise the ballot box should no longer be opened or the ballots should no longer be recounted as the case may be, in which

case an order for the safekeeping of the ballot box should be issued. The Status Quo Ante Order issued on February 18, 2003 is hereby DISSOLVED. SO ORDERED.

G.R. No. 125629 March 25, 1998 MANUEL C. SUNGA, petitioner, vs. COMMISSION ON ELECTIONS and FERDINAND B. TRINIDAD, respondents.

BELLOSILLO, J.: This petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure seeks to annul and set aside, for having been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction, the 17 May 1996 Resolution of the COMELEC 2nd Division in Sunga v. Trinidad, SPA No. 95-213 1 dismissing the petition for
disqualification against private respondent Ferdinand B. Trinidad pursuant to COMELEC Resolution No. 2050 promulgated 3 November 1988, as amended by COMELEC Resolution No. 2050-A promulgated 8 August 1990, and 30 July 1996 Resolution of the COMELEC En Banc affirming the 17 May 1996 Resolution of the COMELEC 2nd Division.

Petitioner Manuel C. Sunga was one of the candidates for the position of Mayor in the Municipality of Iguig, Province of Cagayan, in the 8 May 1995 elections. Private respondent Ferdinand B. Trinidad, then incumbent mayor, was a candidate for re-election in the same municipality. On 22 April 1995 Sunga filed with the COMELEC a letter-complaint 2 for disqualification against Trinidad, accusing him
of using three (3) local government vehicles in his campaign, in violation of Sec. 261, par. (o), Art. XXII, of BP Blg. 881 (Omnibus Election Code, as amended). On 7 May 1995, Sunga filed another letter-complaint 3 with the COMELEC charging Trinidad this time with violation of Sec. 261, par. (e) (referring to threats, intimidation, terrorism or other forms of coercion) of the Omnibus Election Code, in addition to the earlier violation imputed to him in the first letter-complaint. This was followed by an Amended Petition 4 for disqualification consolidating the charges in the two (2) letters-complaint, including vote buying, and providing more specific details of the violations committed by Trinidad. The case was docketed as SPA No. 95-213.

In a Minute Resolution dated 25 May 1995, 5 the COMELEC 2nd Division referred the complaint to its Law Department
for investigation. Hearings were held wherein Sunga adduced evidence to prove his accusations. Trinidad, on the other hand, opted not to submit any evidence at all.

Meanwhile, the election results showed that Trinidad garnered the highest number of votes, while Sunga trailed second. On 10 May 1995 Sunga moved for the suspension of the proclamation of Trinidad. However, notwithstanding the motion, Trinidad was proclaimed the elected mayor, prompting Sunga to file another motion to suspend the effectsof the proclamation. Both motions were not acted upon by the COMELEC 2nd Division. On 28 June 1995 the COMELEC Law Department submitted its Report 6 to the COMELEC En Banc recommending
that Trinidad be charged in court for violation of the following penal provisions of the Omnibus Election Code: (a) Sec. 261, par. (a), on vote buying; (b) Sec. 261, par. (e), on threats, intimidation, terrorism or other forms of coercion; and, (c) Sec. 261, par. (o), on use of any equipment, vehicle owned by the government or any of its political subdivisions. The Law Department likewise recommended to recall and revoke the proclamation of Ferdinand B. Trinidad as the duly elected Mayor of Iguig, Cagayan; proclaim Manuel C. Sunga as the duly elected Mayor; and, direct Sunga to take his oath and assume the duties and functions of the office.

The COMELEC En Banc approved the findings of the Law Department and directed the filing of the corresponding informations in the Regional Trial Court against Trinidad. Accordingly, four (4) informations 7 for various elections
offenses were filed in the Regional Trial Court of Tuguegarao, Cagayan. The disqualification case, on the other hand, was referred to the COMELEC 2nd Division for hearing.

On 2 May 1996 Sunga filed a Second Urgent Motion to Suspend the Effects and Annul the Proclamation with Urgent Motion for Early Resolution of the Petition. But in its 17 May 1996 Resolution, the COMELEC 2nd Division dismissed the petition for disqualification, holding in its Resolution No. 2050 that 1. Any complaint for disqualification of a duly registered candidate based upon any of the grounds specifically enumerated under Sec. 68 of the Omnibus Election Code, filed directly with the Commission before an election in which respondent is a candidate, shall be inquired into by the Commission for the purpose of determining whether the acts complained of have in fact been committed . . . . In case such complaint was not resolved before the election, the Commission may motu propio, or on motion of any of the parties, refer the complaint to the Law Department of the Commission as the instrument of the latter in the exercise of its exclusive power to conduct a preliminary investigation of all cases involving criminal infractions of the election laws . . . .

2. Any complaint for disqualification based on Sec. 68 of the Omnibus Election Code in relation to Sec. 6 of Republic Act No. 6646 filed after the election against a candidate who has already been proclaimed as a winner shall be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department of this Commission. Where a similar complaint is filed after election but before proclamation of the respondent candidate, the complaint shall, nevertheless, be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department. If, before proclamation, the Law Department makes a prima facie finding of guilt and the corresponding information has been filed with the appropriate trial court, the complainant may file a petition for suspension of the proclamation of the respondent with the court before which the criminal case is pending and said court may order the suspension of the proclamation if the evidence of guilt is strong. As interpreted in the case of Silvestre v. Duavit, SPA 94-003, Resolution No. 2050 provides for the outright dismissal of the disqualification case in three cases: (1) The disqualification case was filed before the election but remains unresolved until after the election; (2) The disqualification case was filed after the election and before the proclamation of winners; and (3) The disqualification case was filed after election and after proclamation. If the instant case is deemed to have been filed upon receipt by the COMELEC of the letter-complaint on April 26 1995, it nevertheless remained pending until after the election. If it is deemed to have been filed upon filing of the amended petition on 11 May 1995, it was clearly filed after the election. In either case, Resolution No. 2050 mandates the dismissal of the disqualification case. His motion for reconsideration having been denied by the COMELEC En Banc, Sunga filed the instant petition contending that the COMELEC committed grave abuse of discretion in dismissing the petition for disqualification in that: first, Sec. 6 of RA No. 6646 requires the COMELEC to resolve the disqualification case even after the election and proclamation, and the proclamation and assumption of office by Trinidad did not deprive the COMELEC of its jurisdiction; second COMELEC Resolution No. 2050 is null and void as it contravenes Sec. 6 of R.A. No. 6646; third, the fact that COMELEC authorized the filing of four (4) informations against private respondent for violation of the penal provisions of the Omnibus Election Code shows more than sufficient and substantial evidence to disqualify Trinidad, and he should have been so disqualified; and fourth, since Trinidad was a disqualified candidate, it is as if petitioner was the only candidate entitled to be proclaimed as the duly elected mayor. In his 17-page Comment and Manifestation dated 3 December 1996, the Solicitor General concurred with petitioner's arguments. Private respondent, on the other hand, postulates inter alia that Sunga's letters-complaint of 22 April 1995 and 7 May 1995 were not petitions for disqualification because no filing fee was paid by Sunga; the letters-complaint were never docketed by the COMELEC; and, no summons was ever issued by the COMELEC and private respondent was not required to answer the letters-complaint. It was only on 13 May 1995 when petitioner filed the socalled Amended Petition, docketed for the first time as SPA No. 95-213. Thus, the COMELEC correctly dismissed the disqualification case for having been filed only after the 8 May 1995 elections and the proclamation of private respondent on 10 May 1995, pursuant to COMELEC Resolution No. 2050. COMELEC filed its Comment on 21 April 1997 relying heavily on Resolution No. 2050 and the Silvestre v. Duavit 8ruling in support of the dismissal of the disqualification case. The COMELEC insisted that the outright dismissal
of a disqualification case was warranted under any of the following circumstances: (a) the disqualification case was filed before the election but was still pending (unresolved) after the election; (b) the disqualification case was filed after the election but before the proclamation of the winner; and, (c) the disqualification case was filed after the election and after the proclamation of the winner.

The issue in this case is whether the COMELEC committed grave abuse of discretion when it dismissed the disqualification case against private respondent Trinidad. The petition is partly meritorious. We find private respondent's arguments on the propriety of the letters-complaint puerile. COMELEC itself impliedly recognized in its Resolution that the petition was filed before the 8 May 1995 election in the form of letterscomplaint, thus This case originally came to the attention of this Commission on 26 April 1995 in a form of letter from petitioner accusing respondent of utilizing government properties in his campaign and praying for the latter's immediate disqualification. Another letter dated 7 May 1995 and addressed to the COMELEC Regional Director of Region II reiterated petitioner's prayer while alleging that respondent and his men committed acts of terrorism and violated the gun ban. Finally, on 11 May 1995, an Amended Petition was filed with the Clerk of Court of the Commission containing substantially the same allegations as the previous letters but supported by affidavits and other documentary evidence.

That the Amended Petition was filed only on 11 May 1995, or after the elections, is of no consequence. It was merely a reiteration of the charges filed by petitioner against private respondent on 26 April 1995 and 7 May 1995 or before the elections. Consequently, the Amended Petition retroacted to such earlier dates. An amendment which merely supplements and amplifies facts originally alleged in the complaint relates back to the date of the commencement of the action and is not barred by the statute of limitations which expired after the service of the original complaint. 9 The fact that no docket fee was paid therefor was not a fatal procedural lapse on the part of petitioner. Sec. 18, Rule 42, of the COMELEC Rules of Procedure provides, "If the fees above described are not paid, the Commission may refuse to take action thereon until they are paid and may dismiss the action or proceeding." The use of the word "may" indicates that it is permissive only and operates to confer a discretion on the COMELEC whether to entertain the petition or not in case of non-payment of legal fees. That the COMELEC acted on and did not dismiss the petition outright shows that the non-payment of fees was not considered by it as a legal obstacle to entertaining the same. Be that as it may, the procedural defects have been cured by the subsequent payment of docket fees, and private respondent was served with summons, albeit belatedly, and he submitted his answer to the complaint. Hence, private respondent has no cause to complain that no docket fee was paid, no summons served upon him, or that he was not required to answer. Neither do we agree with the conclusions of the COMELEC. We discern nothing in COMELEC Resolution No. 2050 declaring, ordering or directing the dismissal of a disqualification case filed before the election but which remained unresolved after the election. What the Resolution mandates in such a case is for the Commission to refer the complaint to its Law Department for investigation to determine whether the acts complained of have in fact been committed by the candidate sought to be disqualified. The findings of the Law Department then become the basis for disqualifying the erring candidate. This is totally different from the other two situations contemplated by Resolution No. 2050, i.e., a disqualification case filed after the election but before the proclamation of winners and that filed after the election and the proclamation of winners, wherein it was specifically directed by the same Resolution to be dismissed as a disqualification case. Moreover, Resolution No. 2050 as interpreted in Silvestre v. Duavit infringes on Sec. 6 of RA No. 6646, 10 which
provides:

Sec. 6. Effects of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong (emphasis supplied). Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion, i.e., until judgment is rendered thereon. The word "shall" signifies that this requirement of the law is mandatory, operating to impose a positive duty which must be enforced. 11 The implication is that the COMELEC is left
with no discretion but to proceed with the disqualification case even after the election. Thus, in providing for the outright dismissal of the disqualification case which remains unresolved after the election, Silvestre v. Duavit in effect disallows what RA No. 6646 imperatively requires. This amounts to a quasi-judicial legislation by the COMELEC which cannot be countenanced and is invalid for having been issued beyond the scope of its authority. Interpretative rulings of quasijudicial bodies or administrative agencies must always be in perfect harmony with statutes and should be for the sole purpose of carrying their general provisions into effect. By such interpretative or administrative rulings, of course, the scope of the law itself cannot be limited. Indeed, a quasi-judicial body or an administrative agency for that matter cannot amend an act of Congress. Hence, in case of a discrepancy between the basic law and an interpretative or administrative ruling, the basic law prevails.

Besides, the deleterious effect of the Silvestre ruling is not difficult to foresee. A candidate guilty of election offenses would be undeservedly rewarded, instead of punished, by the dismissal of the disqualification case against him simply because the investigating body was unable, for any reason caused upon it, to determine before the election if the offenses were indeed committed by the candidate sought to be disqualified. All that the erring aspirant would need to do is to employ delaying tactics so that the disqualification case based on the commission of election offenses would not be decided before the election. This scenario is productive of more fraud which certainly is not the main intent and purpose of the law. The fact that Trinidad was already proclaimed and had assumed the position of mayor did not divest the COMELEC of authority and jurisdiction to continue the hearing and eventually decide the disqualification case. InAguam v. COMELEC 12 this Court held Time and again this Court has given its imprimatur on the principle that COMELEC is with authority to annul any canvass and proclamation which was illegally made. The fact that a candidate proclaimed has assumed office, we have said, is no bar to the exercise of such power. It of course may not be availed of where there has been a valid proclamation. Since private respondent's petition before the COMELEC is precisely directed at the annulment of the canvass and proclamation, we perceive that inquiry into this issue is within the area allocated by the Constitution and law to COMELEC . . . Really, were a victim of a proclamation to

be precluded from challenging the validity thereof after that proclamation and the assumption of office thereunder, baneful effects may easily supervene. It must be emphasized that the purpose of a disqualification proceeding is to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of the election laws. Obviously, the fact that a candidate has been proclaimed elected does not signify that his disqualification is deemed condoned and may no longer be the subject of a separate investigation. It is worth to note that an election offense has criminal as well as electoral aspects. Its criminal aspect involves the ascertainment of the guilt or innocence of the accused candidate. Like in any other criminal case, it usually entails a full-blown hearing and the quantum of proof required to secure a conviction is beyond reasonable doubt. Its electoral aspect, on the other hand, is a determination of whether the offender should be disqualified from office. This is done through an administrative proceeding which is summary in character and requires only a clear preponderance of evidence. Thus, under Sec. 4 of the COMELEC Rules of Procedure, petitions for disqualification "shall be heard summarily after due notice." It is the electoral aspect that we are more concerned with, under which an erring candidate may be disqualified even without prior criminal conviction. 13 It is quite puzzling that the COMELEC never acted on Sunga's motion to suspend the proclamation of Trinidad. The last sentence of Sec. 6 of RA No. 6646 categorically declares that the Commission may order the suspension of the proclamation of a candidate sought to be disqualified whenever the evidence of his guilt is strong. And there is not a scintilla of doubt that the evidence of Trinidad's guilt was strong as shown in the Report and Recommendation of the COMELEC Law Department Parenthetically, there is merit to petitioner's petition against the respondent for disqualification for the alleged commission of election offenses under Sec. 68 of the Omnibus Election Code, such as use of armed men and act of terrorism, intimidation and coercion of voters, massive vote-buying and others, duly supported by affidavits of witnesses and other documents. Consequently, the petitioner's evidence supporting the disqualification of respondent remain unrebutted simply because respondent has expressly waived his right to present evidence in SPA No. 95-213 in his Manifestation and objection to the presentation of evidence in SPA No. 95-213 dated 16 June 1995, thus the waiver is the intentional relinquishing of a known right of respondent TRINIDAD. In fact, on the basis of this Report and Recommendation the COMELEC directed the filing of four (4) criminal informations against Trinidad before the Regional Trial Court, an indication that there was indeed prima facieevidence of violation of election laws. However, Sunga's contention that he is entitled to be proclaimed as the duly elected Mayor of the Municipality of Iguig, Province of Cagayan, in the event that Trinidad is disqualified finds no support in law and jurisprudence. The fact that the candidate who obtained the highest number of votes is later disqualified for the office to which he was elected does not entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a disqualified person may not be valid to install the winner into office or maintain him there. But in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was qualified, they should not be treated as stray, void or meaningless. 14 Sunga totally miscontrued the nature of our democratic electoral process as well as the sociological and psychological elements behind voters' preferences. Election is the process of complete ascertainment of the expression of the popular will. Its ultimate purpose is to give effect to the will of the electorate by giving them direct participation in choosing the men and women who will run their government. Thus, it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed winner and imposed as the representative of a constituency, the majority of whom have positively declared through their ballots that they do not choose him. 15 While Sunga may have garnered the second highest number of votes, the fact remains that he was not the choice of the people of Iguig, Cagayan. "The wreath of victory cannot be transferred from the disqualified winner to the repudiated loser because the law then as now only authorizes a declaration of election in favor of the person who has obtained a plurality of votes and does not entitle a candidate receiving the next highest number of votes to be declared elected." 16 In Aquino v. COMELEC, 17 this Court made the following pronouncement: To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the voter. The second placer is just that, a second placer. He lost the election. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate; the conditions would have substantially changed. We are not prepared to extrapolate the results under such circumstances. Also, what Sunga wants us to do is to disregard the express mandate of Sec. 44, RA No. 7160, 18 which provides in
part

Sec. 44. Permanent vacancies in the office of the Governor, Vice-Governor, Mayor, Vice-Mayor. (a) If a permanent vacancy occurs in the office of the Governor or Mayor, the Vice-Governor or Vice-Mayor concerned shall become the Governor or Mayor . . . For purposes of this chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns or is otherwise permanently incapacitated to discharge the functions of his office . . . . This provision is echoed in Art. 83 of the Implementing Rules and Regulations of the Local Government Code of 1991. The language of the law is clear, explicit and unequivocal, thus admits no room for interpretation but merely application. This is the basic legal precept. Accordingly, in the event that Trinidad is adjudged to be disqualified, a permanent vacancy will be created for failure of the elected mayor to qualify for the said office. In such eventuality, the duly elected vice-mayor shall succeed as provided by law. 19 WHEREFORE, the petition is PARTIALLY GRANTED. The 17 May 1996 and 30 July 1996 Resolutions of the COMELEC are ANNULLED and SET ASIDE. COMELEC is ordered to REINSTATE SPA No. 95-213, "Manuel C. Sunga v. Ferdinand B. Trinidad," for disqualification, and ACT on the case taking its bearings from the opinion herein expressed. No costs. SO ORDERED.

G.R. Nos. 140850-51 May 4, 2000 EUGENIO "JING-JING" FAELNAR, petitioner, vs. PEOPLE OF THE PHILIPPINES, HON. RAMON CODILLA, in his capacity as Presiding Judge of the RTC, Branch 19, Cebu City, and COMMISSION ON ELECTIONS, respondents.

MENDOZA, J.: This is a petition for certiorari to set aside the order, dated July 29, 1999, of the Regional Trial Court, Branch 19, Cebu City, denying petitioner's motion to quash in Criminal Cases Nos. CBU-499411 and 49942,2 and the order, dated October 4, 1999, denying petitioner's motion for reconsideration. The facts are as follows: On April 8, 1997, petitioner Eugenio Faelnar filed a certificate of candidacy for the position of Barangay Chairman of Barangay Guadalupe, Cebu City in the May 12, 1997 barangay elections. The following day, on April 9, 1997, a basketball tournament, dubbed the "2nd JING-JING FAELNAR'S CUP," opened at the Guadalupe Sports Complex and lasted up to April 30, 1997. This gave rise to a complaint for electioneering filed against petitioner and Cecilio Gillamac by Antonio Luy. The complaint alleged that the basketball tournament was actually a campaign gimmick staged outside the campaign period which officially started on May 1, 1997, in violation of the Omnibus Election Code. Luy alleged that: (1) during the tournament, a streamer bearing petitioner's name was placed on the facade of the Guadalupe Sports Complex; (2) petitioner's name was repeatedly mentioned over the microphone during the games; (3) the tournament was widely published in the local newspaper; and (4) a raffle sponsored by Cecilio Gillamac was held with home appliances given away as prizes. Petitioner denied participation in the tournament and claimed that its major sponsor was Gillamac Marketing, Inc. He contended that the same was purely a sporting event for the benefit of the youth. The complaint was investigated by Atty. Edwin Cadungog, election officer of Cebu City, who later recommended the dismissal of the charges against petitioner and Gillamac. On the other hand, the Law Department of the COMELEC recommended the filing of a case against petitioner and Gillamac for violation of 80,3 in relation to 262,4 of the Omnibus Election Code, and 50 of COMELEC Resolution No. 2888, in relation to 12 of Republic Act No. 6679.5 In its Resolution No. 97-3040, dated September 16, 1997, the COMELEC en banc resolved to dismiss the case. However, on motion of Antonio Luy, the COMELEC reconsidered its action and ordered the filing of the necessary Informations against petitioner and Gillamac. Accordingly, petitioner and Gillamac were formally charged in the Regional Trial Court, Cebu City under two Informations in Criminal Cases Nos. CBU-49941 and CBU-49942. Petitioner moved to quash the information or, in the alternative, for reinvestigation of the case, contending that Resolution No. 97-3040, which dismissed the complaint against him, was immediately executory and could no longer be reconsidered. Petitioner's motion was denied by the trial court in an order dated July 29, 1999. He moved for reconsideration, but his motion was likewise denied by the court in its order, dated October 4, 1999. Hence this petition. Petitioner reiterates his argument in the trial court that COMELEC Resolution No. 97-3040, which dismissed the complaint against him, can no longer be reconsidered by the COMELEC. He contends that under the Rules of Procedure of the COMELEC, the dismissal of the complaint was immediately final and executory. Additionally, he avers that Antonio Luy's Motion for Reconsideration of Resolution No. 97-3040 is a prohibited pleading under the Commission's Rules of Procedure. He avers that since the resolution in question was immediately final and executory, it was no longer within the power of the COMELEC to reconsider. Consequently, Resolution No. 982914, in directing the filing of charges in court, was "ultra-vires," and the Informations filed against him should have been quashed.6 The petition is without merit. First. While the instant petition challenges the trial court's orders denying petitioner's motion to quash the complaints in Criminal Cases Nos. CBU-49941 and 49942, the grounds relied upon by petitioner are directed at the validity of Resolution No. 98-2914 of the COMELEC. Thus, petitioner prays that said resolution be declared null and void.7 This petition is nothing but an attempt to circumvent a final resolution of the COMELEC.

Resolution No. 98-2914 was promulgated by the COMELEC en banc on October 29, 1998. Petitioner's remedy was to seek its annulment by way of a special civil action of certiorari under Rule 65 of the Rules of Court. Rule 64, 2 provides: Sec. 2. Mode of Review. A judgment or final order or resolution of the Commission on Elections and the Commission on Audit may be brought by the aggrieved party to the Supreme Court oncertiorari under Rule 65, except as hereinafter provided. Sec. 3 of said Rule provides that such petition shall be filed within 30 days from notice of the resolution sought to be reviewed. No such petition was ever filed. The present petition to set aside the orders of the trial court denying its motion to quash and motion for reconsideration was filed only on November 12, 1999, more than a year after Resolution No. 98-2194 was promulgated on October 29, 1998. Consequently, the resolution is now final and binding upon the parties. Even if said resolution is erroneous for being contrary to the provisions of the Rules of Procedure of the COMELEC, the same is not void. Since it has become final and executory, it is already binding and effective.8 Second. The above discussion should be enough to dispose of this petition. However, we think there is an important question of law that must not be left undecided, i.e., is the resolution of the COMELEC dismissing the criminal complaint for violation of the election laws immediately final and executory, as petitioner contends? The contention is untenable. In support of his claims, petitioner cites Rule 13, 1(d) of the Rules of Procedure of the COMELEC which provides: Sec. 1. What pleadings are not allowed. The following pleadings are not allowed: xxx xxx xxx (d) motion for reconsideration of an en banc ruling, resolution, order or decision; . . . . The above quoted provision, however, is taken from the 1988 COMELEC Rules of Procedure which has already been amended. The 1993 Rules of Procedure, now provides: Rule 13. Prohibited Pleadings. Sec. 1. What pleadings are not allowed. The following pleadings are not allowed: xxx xxx xxx (d) motion for reconsideration of an en banc ruling, resolution, order or decision except in election offense cases; . . . (Emphasis added). Under the present rule, therefore, a motion for reconsideration of a ruling, resolution or decision of the COMELECen banc is allowed in cases involving election offenses. Here, there is no question that what is involved is a resolution of the COMELEC en banc in an election offense. Hence, a motion for reconsideration of such resolution is allowed under the Rules of Procedure of the COMELEC. Petitioner likewise invokes Rule 34, 10 of the COMELEC Rules of Procedure which provides that Sec. 10. Appeals from the Action of the State Prosecutor, Provincial or City Fiscal. Appeals from the resolution of the State Prosecutor, or Provincial or City Fiscal on the recommendation or resolution of investigating officers may be made only to the Commission within ten (10) days from receipt of the resolution of said officials, provided, however that this shall not divest the Commission of its power to motu proprio review, revise, modify or reverse the resolution of the chief state prosecutor and/or provincial/city prosecutors. The decision of the Commission on said appeals shall be immediately executory and final. (Emphasis added) Even a cursory reading of the above rule, however, will show that it governs appeals from the action of the State Prosecutor or Provincial or City Fiscal on the recommendation or resolution of investigating officers. The present case does not involve such an appeal but a resolution of the COMELEC itself in the exercise of its exclusive power to conduct preliminary investigation of election offense cases.9 Such distinction can be easily explained. In cases where the State Prosecutor, or Provincial or City Fiscal exercises the delegated power 10 to conduct preliminary investigation of election offense cases, after the investigating officer submits his recommendation, said officers already resolve the issue of probable cause. From such resolution, appeal to the COMELEC lies. As the exercise by the Commission of its review powers would, at this point, already constitute a second look on the issue of probable cause, the COMELEC's ruling on the appeal would be immediately final and executory.

On the other hand, if the preliminary investigation of a complaint for election offense is conducted by the COMELEC itself, its investigating officer prepares a report upon which the Commission's Law Department makes its recommendation to the COMELEC en banc on whether there is probable cause to prosecute. It is thus the COMELEC en banc which determines the existence of probable cause. 11 Consequently, an appeal to the Commission is unavailing. Under the present Rules of Procedure of the COMELEC, however, a motion for reconsideration of such resolution is allowed. This effectively allows for a review of the original resolution, in the same manner that the COMELEC, on appeal or motu proprio, may review the resolution of the State Prosecutor, or Provincial or City Fiscal. Reliance by petitioner upon Rule 34, 10 of the COMELEC Rules of Procedure is thus without any basis. WHEREFORE, the petition for certiorari is DENIED. SO ORDERED.

G.R. No. 135691 September 27, 1999 EMMANUEL SINACA, petitioner, vs. MIGUEL MULA and COMMISSION ON ELECTIONS, respondents.

DAVIDE, JR., C.J.: Before us is a special civil action for certiorari, mandamus and prohibition, with a prayer for preliminary injunction and/or temporary restraining order assailing the Resolution of 6 October 1998, of respondent Commission on Elections (hereafter COMELEC) in SPA No. 98-292, declaring as invalid the substitution of mayoralty candidate Teodoro F. Sinaca, Jr. by herein petitioner Emmanuel D. Sinaca. 1 The records disclose that in the 11 May 1998 elections, the two opposing factions of the ruling party LAKAS-NUCDUMPD (hereafter LAKAS) filled in separate candidates for the position of mayor of the Municipality of Malimano, Surigao del Norte. One faction headed by Robert Z. Barbers (hereafter "BARBERS Wing") nominated Grachil G. Canoy (hereafter CANOY), while the other group lead by Francisco T. MATUGAS (hereafter "MATUGAS Wing") endorsed the candidacy of Teodoro F. Sinaca, Jr. (hereafter TEODORO). Miguel H. Mula (hereafter MULA), a candidate for vice-mayor and belonging to the "BARBERS Wing," filed before the COMELEC a petition for disqualification against TEODORO which was docketed as SPA 98-021. On 8 May 1998, the Second Division of the COMELEC issued a resolution disqualifying TEODORO as candidate for mayor of the Municipality of Malimono, Surigao del Norte and ordering the cancellation of his certificate of candidacy because of prior conviction of bigamy, a crime involving moral turpitude. 2 On 10 May 1998, TEODORO filed a motion for reconsideration of the aforesaid resolution. On even date, herein petitioner Emmanuel D. Sinaca, (hereafter EMMANUEL), an independent candidate, withdrew his certificate of candidacy for Sangguniang Bayan Member, joined and became a member of the LAKAS party and was nominated by the LAKAS "MATUGAS Wing" as the substitute mayoralty candidate for the Municipality of Malimono, Surigao del Norte. On the basis of said nomination, EMMANUEL filed his certificate of candidacy 3 attached thereto is his
certificate of nomination as LAKAS mayoralty candidate signed by Governor Francisco T. MATUGAS (hereafter MATUGAS), as party provincial chairman together with EMMANUEL's written acceptance of the party's nomination. 4

On 11 May 1998, MULA filed through mail another petition for disqualification, this time against EMMANUEL, which was received by the COMELEC on 14 May 1998 and was docketed as SPA No. 98292. In his petition MULA contended that the nomination of EMMANUEL as substitute candidate is illegal on the following grounds: a) The substitute, before he filed his Certificate of Candidacy as LAKAS candidate, was an independent candidate. Being so, he cannot rightfully substitute the disqualified one; b) The nomination of respondent substitute bears only the approval of Provincial Chairman Matugas and without consultation and consent of the higher political hierarchy especially Mr. Robert Ace Barbers who has also a say on nomination of candidates within his jurisdiction, as evidenced by an authority hereto attached as Annex "E"; c) Substitution generally takes place when by reason of a candidate's disqualification the party to which he belongs loses such representation. In the instant case, the disqualification did not at all prejudice LAKAS NUCD-UMDP because Mr. Garchil G. Canoy is still there representing the party after the disqualification. The substitution is a redundancy and not necessary under the circumstances, more so that it was done with malice and without the required consensus of the political hierarchy. 5 In his answer, EMMANUEL moved for the dismissal of the petition for the following reasons: a) The petition does not state a cause of action as it is not based on any of the grounds for disqualification as provided under Sec. 68 of the Omnibus Election Code and Sec. 40(A) of the Local Government Code of 1991;

b) The issue of who in LAKAS has the authority to nominate candidates for local officials, is an intra-party matter hence beyond the jurisdiction of the Comelec; c) Gov. Matugas was duly authorized by LAKAS as its Provincial Chairman and official candidate for Provincial Governor to nominate the party's local candidates; and d) The petition is already moot and academic because of the proclamation of EMMANUEL as mayor of the Municipality of Malimono, Surigao del Norte.6 On 28 May 1998, the COMELEC Second Division dismissed the petition for disqualification and upheld the candidacy for mayor of EMMANUEL. 7 The pertinent part of the resolution reads: It is therefore clear, that candidate for governor Matugas was clothed with the authority to nominate the respondent as substitute candidate for the position of mayor of Malimono, Surigao del Norte, vice the disqualified candidate, Apropos thereto, Section 77 of the Omnibus Election Code states: xxx xxx xxx Considering that on May 10, 1998 the proper nomination was issued by the official of the party authorized therefor, it stands to reason that the substitution was valid, respondent having accepted the nomination and his certificate of candidacy dated May 10, 1998, correspondingly filed. Respondent is correct in stating that the question of nomination is a party concern which is beyond the ambit of the Commission. What matters is, the candidate has been certified as a party member and the nomination duly issued in his favor.
1wphi 1.nt

Be that as it may, the petition is rendered moot and academic by the proclamation of respondent on May 12, 1998, as evidenced by the certificate of canvass and proclamation of winning candidates for municipal offices with SN 16671298 and his oath of office dated May 13, 1998, which forms part of the record of this case. WHEREFORE, premises considered, the Commission (Second Division) RESOLVES to DISMISS the instant petition for lack of merit. MULA filed a motion for reconsideration raising in the main that the signature alone of MATUGAS in the nomination was not sufficient because the party's authority to nominate was given to both MATUGAS and Senator Robert S. Barbers (hereafter BARBERS), in their joint capacity, and that the nomination of EMMANUEL is void since he was an independent candidate prior to his nomination. 8 On 6 October 1998, the COMELEC en banc issued a Resolution 9 which set aside the resolution dated 28 May 1998 of
the Second Division and disqualified EMMANUEL, for the following reasons:

In the motion for reconsideration, petitioner argues that the signature only of Governor Matugas in the nomination was not sufficient because the party's authority to nominate was given to both Governor Matugas and Senator Robert Barbers, in their joint capacity. We do not have to resolve this issue because the more important issue is whether respondent is disqualified as a substitute candidate. He was an independent candidate for councilor at the time he filed his certificate of candidacy for mayor as a substitute of a disqualified candidate. Thus, he did not belong to the same political party as the substituted candidate. We sustain petitioner's position. We declare that the substitution of disqualified mayoralty candidate Teodoro F. Sinaca, Jr. by respondent Emmanuel D. Sinaca was not valid because the latter was an independent candidate for councilor prior to his nomination as substitute candidate in place of the withdrawing candidate who was a Lakas party member. IN VIEW WHEREOF, the Commission en banc hereby resolves to SET ASIDE the Commission (Second Division)'s resolution dated May 28, 1998. We declare Emmanuel D. Sinaca DISQUALIFIED to be a substitute candidate for mayor of Malimono, Surigao del Norte, and ANNUL his proclamation as such being void ab initio. Upon finality of this resolution, he is ordered to vacate the position of mayor of the municipality of Malimono, Surigao del Norte, to which the vice-mayor elected in the May 11, 1998 elections shall succeed by operation of law. Not satisfied therewith, EMMANUEL is now before us alleging that the COMELEC committed grave abuse of discretion in issuing the assailed Resolution. EMMANUEL principally contends that his nomination as a substitute

candidate was regular and valid hence, his proclamation as mayor of the Municipality of Malimono, Surigao del Norte must be upheld. In the assailed resolution, the COMELEC disqualified EMMANUEL solely on the basis that he was an independent candidate prior to his nomination as a substitute candidate. The rule on substitution of an official candidate of a registered or accredited political party who dies, withdraws or is disqualified for any cause after the last day for the filing of certificates of candidacy is governed by Sec. 77 of the Omnibus Election Code which provides: If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of the day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day, said certificate maybe filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission. Thus, under the said provision it is necessary, among others, that the substitute candidate must be of the same political party as the original candidate and must be duly nominated as such by the political party. In the instant case, there was substantial compliance with the above said requirements. EMMANUEL was properly nominated as substitute candidate by the LAKAS party "MATUGAS wing" to which TEODORO, the disqualified candidate, belongs, as evidenced by the Certificate of Nomination and Acceptance signed by MATUGAS, the Party's provincial chairman. 10 That EMMANUEL is a bona fide member of the LAKAS party is shown not only by the
certificate of membership, 11 which is being controverted for having been presented as new evidence for the first time before this court, but more importantly by his certificate of candidacy filed before the COMELEC stating therein that he belongs to the LAKAS party. 12

A certificate of candidacy is in the nature of a formal manifestation to the whole world of the candidate's political creed or lack of political creed. 13 It is a statement of a person seeking to run for a public office certifying that he
announces his candidacy for the office mentioned and that he is eligible for the office, the name of the political party to which he belongs, if he belongs to any, and his post-office address for all election purposes being as well stated. 14

The certificate of candidacy of EMMANUEL permitted the placing of his name before the electorate. It constituted an authorized badge, which the voter could scrutinize before casting his ballot. Thus, with the declaration of EMMANUEL in his certificate of candidacy that he is affiliated with the LAKAS party, he was effectively voted by the electorate not as an independent candidate, but as a member of the LAKAS party. His allegation in the certificate of candidacy as to political party to which he belongs is sufficient to make the electorate conscious of the platform of the said political party. 15 The fact that EMMANUEL was an independent candidate prior to his nomination is immaterial. What is more significant is that he had previously withdrawn his certificate of candidacy as independent candidate for Sangguniang member before he filed his certificate of candidacy as a substitute for TEODORO at which time he was, for all intents and purposes, already deemed a member of the LAKAS party "MATUGAS wing." As such, EMMANUEL is obliged to pursue and carry out the party's ideology, political ideas and platforms of government. As the official candidate of an organized political party, he is bound by the party's rule. He owes loyalty to the party, its tenet and its policies, its platforms and programs of government. To the electorate he represents the party, its principles, ideals and objectives. 16 Even the fact that EMMANUEL only became a member of the LAKAS party after the disqualification of TEODORO, will not affect the validity of the substitution. There is nothing in the Constitution or the statute which requires as a condition precedent that a substitute candidate must have been a member of the party concerned for a certain period of time before he can be nominated as such. Section 77 of the Omnibus Election Code only mandates that a substitute candidate should be a person belonging to and certified by the same political party as the candidate to be replaced. We cannot provide for an additional requirement or condition not provided under the said provision without encroaching into the domain of the legislative department. As aptly observed by Commissioner Teresita Dy-Liacco Flores in her dissenting opinion, to wit: . . . . With due respect to the majority opinion, I find that at the time the substitute candidate filed his certificate of candidacy for mayor and at the time of his election as such, he was an independent candidate no more. He was, at that time, a nominee of the LAKAS NUCD-UMDP Political Party. This fact is evidenced by the Certificate of Nomination and Acceptance dated 10 May 1998 executed by the Provincial Chairman of the said party of Surigao del Norte and by herein respondent. This certificate bonafide member of the said party. To rule that respondent was still an independent candidate and not a member of the LAKAS NUCD-UMDP political party at the time of filing his

certificate of candidacy as a substitute candidate for mayor is to arrogate upon this Commission what would have been the sole and exclusive prerogative of any political organization to determine party membership and its nominees to elective positions. It is an accepted fact that, in this country, politicians switch party affiliations more frequently than the ebb and flow of the tides. 17 The argument advanced by private respondent MULA that MATUGAS has no authority to nominate a candidate without the concurrence of BARBERS is devoid or merit. Firstly, MATUGAS, was designated by the LAKAS National Headquarters through its Deputy Secretary General and National Secretariat Executive Director Reynaldo L. Maclang, as the party officer authorized to nominate, sign, attest under oath, and issue Certificates of Nomination and Acceptance for the Party's official candidates for the positions of Board Members, City Councilors, Municipal Mayors, Vice-mayors and councilors for the Province of Surigao del Norte. 18 This authorization which was dated March 26, 1998 replaced and/or modified the former authorization given by the party of both BARBERS and MATUGAS. 19 Both BARBERS and MATUGAS were given separate and distinct
authorizations when the mother of BARBERS ran for governor against MATUGAS.

Secondly, there are only two official candidates for mayor of Malimono, Surigao del Norte, namely TEODORO and CANOY, 20 both of whom are members of the LAKAS party but from different factions. TEODORO was indorsed by the
"MATUGAS wing" and CANOY by the "BARBERS Wing." The certificates of candidacy of these candidates were never questioned despite the fact that they belong to the same political party and were separately and independently endorsed by either BARBERS or MATUGAS. Therefore, if the absence of a joint nomination is to be considered fatal to the validity of the certificate of candidacy of TEODORO or CANOY, then there would in effect no candidates running for mayor in the Municipality of Malimono, Surigao del Norte.

Verily, it stands to reason that with the disqualification of TEODORO, who is a member of the LAKAS "MATUGAS wing," the substitute must come from the same faction as the candidate to be substituted and since it was MATUGAS who indorsed the nomination of TEODORO, then MATUGAS' nomination of EMMANUEL in substitution of TEODORO is sufficient and in order. There is also no irregularity in the act of EMMANUEL in joining a political party. The right of individuals to form an association as guaranteed by the fundamental law includes the freedom to associate or refrain from association.21 No man is compelled by law to become a member of a political party; or after having become such, to
remain a member. He may join such a party for whatever reason reasons seems good to him, and may quit the party for any cause, good, bad, or indifferent, or without cause. 22 The decision of a candidate on whether to run as an independent candidate or to join a political party, group or aggrupation is left entirely to his discretion. 23

We also agree with the contention of EMMANUEL that the decision as to which member a party shall nominate as its candidate is a party concern which is not cognizable by the courts. A political party has the right to identify the people who constitute the association and to select a standard bearer who best represents the party's ideologies and preference. 24 Political parties are generally free to conduct their internal
affairs free from judicial supervision; this common-law principle of judicial restraint, rooted in the constitutionally protected right of free association, serves the public interest by allowing the political processes to operate without undue interference. 25 Thus, the rule is that the determination of disputes as to party nominations rests with the party, in the absence of statutes giving the court's jurisdiction. 26

Quintessentially, where there is no controlling statute or clear legal right involved, the court will not assume jurisdiction to determine factional controversies within a political party, but will leave the matter for determination by the proper tribunals of the party itself or by the electors at the polls. 27 Similarly, in the absence of specific constitutional
or legislative regulations defining how nominations are to be made, or prohibiting nominations from being made in certain ways, political parties may handle party affairs, including nominations, in such manner as party rules may establish. 28

An election in which the voters have fully, fairly, and honestly expressed their will is not invalid even though an improper method is followed in the nomination of candidates. 29 This is because in determining the effect of a particular
irregularity in a party nomination for office on the result of the general election, the pivotal issue is whether the irregularity complained of has prevented a full, fair, and free expression of the public will. Thus, in the absence of a statutory provision to the contrary, an election may not even be invalidated by the fact that the nomination of the successful candidate was brought about by fraud, and not in the manner prescribed by the statute, provided it appears that noncompliance with the law did not prevent a fair and free vote. 30

None of the situations adverted to above are obtaining in the case at bar as to warrant this Court's intervention in ascertaining the propriety of EMMANUEL's nomination as a substitute candidate by the LAKAS "MATUGAS wing." Finally, the issue as to the validity of EMMANUEL's nomination as substitute candidate has been rendered moot and academic by his proclamation on May 12, 1998, by the Board of Canvassers of Malimono as the duly elected municipal mayor and after he has assumed into office. The fact that the nomination of a substitute lacks the signature of one of the authorized signatory is but a technicality which cannot be used to frustrate the will of the electorate.

It has been held that the provisions of the election law regarding certificates of candidacy, such as signing and swearing on the same, as well as the information required to be stated therein, are considered mandatory prior to the elections. Thereafter, they are regarded as merely directory. With respect to election laws, it is an established rule of interpretation that mandatory provisions requiring certain steps before election will be construed as directory after the elections, to give effect to the will of the electorate. Thus, even if the certificate of candidacy was not duly signed or if it does not contain the required data, the proclamation of the candidate as winner may not be nullified on such ground. The defects in the certificate should have been questioned before the election; they may not be questioned after the election without invalidating the will of the electorate, which should not be done. 30 In Guzman
v. Board of Canvassers, 32 the Court held that the "will of the people cannot be frustrated by a technicality that the certificate of candidacy had not been properly sworn to. This legal provision is mandatory and non-compliance therewith before the election would be fatal to the status of the candidate before the electorate, but after the people have expressed their will, the result of the election cannot be defeated by the fact that the candidate has not sworn to his certificate of candidacy."

Thus, were a candidate has received popular mandate, overwhelmingly and clearly expressed, all possible doubts should be resolved in favor of the candidate's eligibility for to rule otherwise is to defeat the will of the people. 33Above and beyond all, the determination of the true will of the electorate should be paramount. It is their voice,
not ours or of anyone else, that must prevail. This, in essence, is the democracy we continue to hold sacred.
34

WHEREFORE, the petition is GRANTED. The assailed resolution of 6 October 1998 of the COMELEC en banc is hereby REVERSED and SET ASIDE and another one rendered declaring EMMANUEL SINACA as having been duly elected mayor of the Municipality of Malimono, Surigao del Norte.
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SO ORDERED.