1

EN BANC


ROBERT P. GUZMAN,
Petitioner
,








- versus -







COMMISSION ON ELECTIONS,
MAYOR RANDOLPH S. TING AND
SALVACION GARCIA,
Respondents.
G.R. No. 182380

Present:

PUNO, C.J.,
QUISUMBING
*
,
YNARES-SANTIAGO
*
,
CARPIO,
CORONA,
CARPIO MORALES,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO
**
and
ABAD
**
, JJ.


Promulgated:

August 28, 2009
x-----------------------------------------------------------------------------------------x

D E C I S I O N

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 theOmnibus
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. T-144428 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
2

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. 06-14
[3]
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 theOmnibus 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 termpublic works as to be in violation of Section 261 (v) of
the Omnibus Election Code; and
3


(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
4

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:
x x x
(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:
5


(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.

6

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, whichProfessor 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 theOmnibus 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 theOmnibus 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:

x x x
(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
7

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.
x x x

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.


8

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 94521 October 28, 1991
OLIVER O. LOZANO, petitioner,
vs.
HON. COMMISSIONER HAYDEE B. YORAC OF THE COMMISSION ON ELECTIONS, respondents.
G.R. No. 94626 October 28, 1991
OLIVER O. LOZANO, petitioner,
vs.
COMMISSIONER ON ELECTIONS and JEJOMAR C. BINAY, respondents.
Pedro Q. Quadra for petitioner.
Romulo B. Macalintal for private respondent.

REGALADO, J.:p
Petitioner Oliver L. Lozano filed these two special civil actions for certiorari, namely: G.R. No. 94521 which
seeks the review of the undated
order 1 of respondent Commissioner Haydee B. Yorac denying the motion for her voluntary inhibition
and/or disqualification in SPC No. 88-040, entitled "Oliver O. Lozano, et al. vs. Mayor Jejomar C.
Binay"; and G.R. No. 94626 which prays for a reversal of the en banc resolution 2 promulgated by
respondent Commission on Elections (COMELEC) on August 7, 1990 3 dismissing the disqualification
petition and criminal complaint for vote buying against respondent Mayor Jejomar C. Binay in connection
with the January 18, 1988 local elections, and its minute resolution of August 15, 1990 4denying due
course to petitioner's motion for reconsideration.
The backdrop of this case on record reveals the following antecedent facts:
1. On January 11, 1988, prior to the January 18, 1988 local elections, petitioner and Bernadette Agcorpa, a
registered voter of Makati, filed with the COMELEC a petition for disqualification against then candidate for
mayor Jejomar C. Binay on the ground that respondent Binay used P9.9 million of municipal funds to
enhance his candidacy and his entire ticket under the Lakas ng Bansa.
2. The disqualification case was assigned to the Second Division of the COMELEC composed of
Commissioner Haydee B. Yorac, as presiding officer, and Commissioners Andres R. Flores and Magdara B.
Dimaampao, as members.
3. The Second Division, through its Presiding Commissioner, referred the case to the Law Department of
respondent commission for preliminary investigation of the criminal aspect. On February 4, 1988, Binay
filed his counter-affidavit with said department.
4. On June 21, 1988, petitioner filed an Omnibus Motion praying for the inhibition and/or disqualification of
Commissioners Yorac and Africa. This was the first of several motions for inhibition filed by petitioner
before respondent commission. Petitioner also prayed that the disqualification petition be referred for
consideration en banc. Commissioner Yorac denied the motion for inhibition. On August 10, 1988, the
COMELEC en banc denied the prayer that the case be heard en banc, ruling that "no substantial reason
9

exists why this case should be taken en banc; and considering finally that the case is set for hearing by the
Second Division."
5. On October 26, 1988, petitioner Lozano himself filed a motion to disqualify Commissioner Yorac because
she postponed motu proprio a hearing set on the ground that she will study the issue of jurisdiction. Said
motion was denied.
6. On November 3, 1988, the COMELEC en banc promulgated Resolution No. 2050 which provides that
petitions for disqualification filed prior to the January 18, 1988 local elections based on Section 68 of the
Omnibus Election Code but not resolved before the elections shall be referred for preliminary investigation
to the Law Department which shall submit its report to the Commission en banc. Pursuant to said
resolution, the Second Division on even date referred back the disqualification case against respondent
Binay to the Law Department "before taking any action thereon."
7. On November 8, 1988, petitioner filed another motion praying that the disqualification case be heard
and decided en banc invoking therein COMELEC Resolution No. 2050. Instead of issuing a formal
resolution, respondent COMELEC authorized then Chairman Hilario G. Davide, Jr. (now a member of this
Court) to reply to petitioner's counsel.
8. On May 23, 1990, the Law Department submitted its investigation report 5 recommending that criminal
charges be filed against respondent Binay for violation of Section 261(a) of the Omnibus Election Code, as
follows:
PREMISES CONSIDERED, the Law Department (Investigation and Prosecution Division)
RECOMMENDS as follows:
1. To file the necessary information against Mayor Jejomar Binay before the proper
Regional Trial Court of the National Capital Region for violation of Section 261(a) of the
Omnibus Election Code, the prosecution thereof to be handled by the Special Prosecution
Committee;
2. To dismiss the charge against Mayor Jejomar Binay for threats and intimidation under
Section 261(e) of the Omnibus Election Code for lack of evidence; and
3. To dismiss the charge against Conchitina Bernardo for insufficiency of evidence.
9. On July 2, 1990, petitioner filed a motion praying that the disqualification case be, resolved jointly with
the investigation report of the Law Department.
10 On July 9, 1990, petitioner filed a third motion for the voluntary inhibition and/or disqualification of
Commissioner Yorac for having issued a previous memorandum addressed to the chairman and members
of respondent commission expressing her opinion that Binay should first be convicted by the regular courts
of the offense of vote buying before he could be disqualified. The full text of said memorandum 6 reads:
I submit for the Commission's consideration the matter of the procedural problems in the
above case.
The chronology of events, so far as this case is concerned, is as follows:
1. SPC No. 88-040 for the disqualification of Jejomar Binay, then candidate for Mayor of
Makati was filed on January 11, 1988. It was assigned to the second Division.
2. On July 29, 1988, petitioners filed a motion to set the case for hearing alleging that the
Commission on Audit (COA) had officially confirmed the allegations of the complainants.
3. Hearings were actually conducted on August 11, September 12, October 12 and
October 19, 1988.
10

4. On November 3, 1988, the Commission en banc adopted Resolution No. 88-2050,
which, inter aliaprovides that:
1. . . .
In case such complaint was not resolved before the election, the
commission may motu proprio, or on motion of any of the parties, refer
the complaint to the Law Department of the Commission as an
instrument of the latter in the exercise of its exclusive power to conduct
a preliminary investigation of all cases involving criminal infractions of
the election laws. Such recourse may be availed of irrespective of
whether the respondent has been elected or has lost in the election;
xxx xxx xxx
3. The Law Department shall terminate the preliminary investigation
within thirty (30) days from receipt of the referral and shall submit its
study, report and recommendation to the Commission en banc within
five (5) days from the conclusion of the preliminary investigation. If it
makes a prima facie finding of guilt, it shall submit with such study the
information for filing with the appropriate court.
5. On the same date, conformable with Resolution No. 88-2050, the Second Division
referred SPC No. 88-040 to the Law Department.
6. In the course of the investigation by the Law Department, the case became entangled
with procedural difficulties the resolution of which has been sought in the Second
Division.
My own personal thinking on the matter is that since the preliminary investigation is the
determination of criminal liability, with the administrative consequence of removal
imposable only as long term sanction, i.e., after final criminal conviction, the matter of
procedure in the preliminary investigation is one that should be addressed to the
commission en banc rather than to either of its divisions.
11. On August 2, 1990, petitioner received a notice setting the promulgation of judgment en banc for
August 6, 1990. Petitioner on August 3, 1990 filed an objection to the promulgation of judgment en
banc, allegedly because there was no showing that the case was referred to the commission en banc upon
unanimous vote of all the members of the Second Division.
12. In its aforestated August 7, 1990 resolution which is herein assailed, the COMELEC en banc dismissed
the petition for disqualification and the criminal complaint for vote buying against respondent Binay. During
the promulgation of judgment, petitioner asked that the same be suspended until after the resolution of
the legal issues raised involving constitutional and jurisdictional questions. Commissioner Yorac was
likewise requested by petitioner to decide the motion for her inhibition. In her undated order subject of the
petition in G.R. No. 94521, as stated in limine, Commissioner Yorac denied the motion for for inhibition,
stating that:
During the deliberations on this case, I seriously considered inhibiting myself from
participating and voting despite the flimsy basis which was cited for it. But I became
convinced, from the information that was coming in, that the motion was really part of a
numbers game, being played out on the basis of information emanating from the
Commission itself as to the developments in the deliberation and the voting. Reliable
information also shows that approaches have been made to influence the voting.
It is for this reason that I do not inhibit myself from the voting in this case consistent with
my reading of the law and the evidence.
11

13. The aforesaid resolution of August 7, 1990 dismissed the petition for disqualification for lack of merit.
The motion for reconsideration filed by herein petitioner was denied in a resolution dated August 15, 1990,
on the ground that "pursuant to Section 1(d), Rule 13 of the Comelec Rules of Procedure, a motion for
reconsideration of an en banc ruling of the Commission is one of the prohibited pleadings, and therefore
not allowed under the Rules.
Succinctly condensed, the petition filed against respondents COMELEC and Binay raises the following
issues:
1. Contrary to the requirement under Section 2, Rule 3 of the COMELEC Rules of
Procedure, SPC No. 88-040 was referred to the Comission en banc without the required
unanimous vote of all the members of the Second Division.
2. The minute resolution of August 15, 1990 is null and void for having been issued
without prior notice to the parties and without fixing a date for the promulgation thereof.
3. Respondent commission committed a grave abuse of discretion amount to lack of
jurisdiction in not finding Binay guilty of vote- buying, contrary to the evidence presented
by petitioner. 7
In G.R. No. 94521, this Court issued on August 16, 1990 a temporary restraining order 8 ordering
respondent Commissioner Yorac to cease and desist from participating in the deliberation and resolution of
the motion for reconsideration dated August 9, 1990 filed in SPC No. 88-040, entitled "Oliver O. Lozano, et
al. vs. Jejomar Binay." The order was served in the office of Commissioner Yorac on August 17, 1990 at
11:25 A.M.9 It appears, however, that the motion for reconsideration was denied by respondent
commission en banc in a resolution dated August 15, 1990, copy of which was served on petitioner on
August 17, 1990 at 12:35 P.M. Consequently, the issue on the inhibition and disqualification of
Commissioner Yorac has been rendered moot and academic.
Granting arguendo that the petition for inhibition of Commissioner Yorac has not been mooted by the
resolution en banc dismissing the main case for disqualification, petitioner's postulation that she should
have inhibited herself form hearing the main case, for allegedly having prejudged the case when she
advanced the opinion that respondent Binay could only be disqualified after conviction by the regional trial
court, is of exiguous validity. In the first place, the COMELEC Rules of Procedure, specifically Section 1,
Rule 4 thereof, prohibits a member from, among others, sitting in a case in which he has proof. There is no
showing that the memorandum wherein Commissioner Yorac rendered her opinion was ever made public
either by publication or dissemination of the same to the public. Furthermore, the opinion of Commissioner
Yorac was based on prior cases for disqualification filed with the COMELEC wherein prior conviction of the
respondent was considered a condition sine qua non for the filing of the disqualification case. 10 We
accordingly find no compelling reason to inhibit Commissioner Yorac from participating in the hearing and
decision of the case.
Similarly, we find the petition in G.R. No. 94626 devoid of merit. Petitioner first avers that under Section 2,
Rule 3 of the COMELEC Rules of Procedure, a case pending in a division may be referred to and decided by
the Commission en banc only on a unanimous vote of all the members of the division. It is contended that
SPC No. 88-040 which was pending before the COMELEC's Second Division was referred to the
Commission en banc without the required unanimous vote of all the division members, petitioner alleging
that Commissioner Andres R. Flores voted for the referral of the petition for disqualification to the division.
It is, therefore, the submission of petitioner that the resolution of the Commission en banc dated August
17, 1990 is null and void for lack of jurisdiction and for being unconstitutional.
The argument of petitioner is not well taken. COMELEC Resolution No. 1050 issued by the commission en
banc on November 3, 1988 is the applicable law in this disqualification case. It provides:
xxx xxx xxx
RESOLVED, as it hereby resolves, to formulate the following rules governing the
disposition of cases of disqualification filed by virtue of Section 68 of the Omnibus Election
12

Code in relation to Section 6 of R.A. 6646 otherwise known as the Electoral Reforms Law
of 1987:
1. Any complaint for the disqualification of a duly registered candidate based upon any of
the grounds specifically enumerated under Section 68 of the Omnibus Election Code, filed
directly with the Commission before an election in which the respondent is a candidate,
shall be inquired into by the Commission for the purpose of determining whether the acts
complained of have in fact been committed. Where the inquiry by the Commission results
in a finding before election, that the respondent candidate did in fact commit the acts
complained (of), the Commission shall order the disqualification of the respondent
candidate from continuing as such candidate.
In case such complaint was not resolved before the election, the Commission may motu
proprio, or on motion of any of the parties, refer the complaint to the Law Department of
the Commission as the instrument of the latter in the exercise of its exclusive power to
conduct a preliminary investigation of all cases involving criminal infractions of the
election laws. Such recourse may be availed of irrespective of whether the respondent
has been elected or has lost in the election.
2. Any complaint for disqualification based on Section 68 of the Omnibus Election Code in
relation to Section 6 of the Rep. Act No. 6646 filed after the election against a candidate
who has already been proclaimed as winner shall be dismissed as a disqualification case.
However, the complaint shall be referred for preliminary investigation to the Law
Department of the 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 the said court may order the
suspension of the proclamation if the evidence of guilt is strong.
3. The Law Department shall terminate the preliminary investigation within thirty (30)
days from receipt of the referral and shall submit its study, report and recommendation to
the Commission en banc within five (5) days from the conclusion of the preliminary
investigation. If it makes a prima faciefinding of guilt, it shall submit with such study the
information for filing with the appropriate court. 11
xxx xxx xxx
Contrary to petitioner's submission that said resolution has been repealed by the COMELEC Rules of
Procedure which took effect on November 15, 1988, there is nothing in the resolution which appears to be
inconsistent with the procedural rules issued by the COMELEC.
Firstly, Resolution No. 2050 was passed by reason of the variance in opinions of the members of
respondent commission on matters of procedure in dealing with cases of disqualification filed pursuant to
Section 68 of the Omnibus Election Code in relation to Section 6 of Republic Act No. 6646, or the Electoral
Reforms Law of 1987, and the manner of disposing of the same had not been uniform. Hence, the
COMELEC decided to lay down a definite policy in the disposition of these disqualification cases. Within this
purpose in mind, the Commission en banc adopted Resolution No. 2050. The transitory provision under
Section 2, Rule 44 of the COMELEC Rules of Procedure provides that these rules shall govern all cases
pending at the time of effectivity thereof, except to the extent that in the opinion of the commission, or the
court in appropriate cases, an application would not be feasible or would work injustice, in which event the
former procedure shall apply. We believe that Resolution No. 2050 qualifies and should be considered as
an exception to the generally retroactive effect of said rules.
13

Secondly, prior to the issuance of Resolution No. 2050, petitioner had filed several motions with the
Second Division asking for the referral of the disqualification case to the Commission en banc. After the
COMELEC en banc issued Resolution No. 2050, petitioner filed another motion for the referral of the case
to the Commission en banc, specifically invoking Resolution No.
2050. 12 In the words of petitioner in his said motion, under the aforesaid resolution, "once the petition
for disqualification is forwarded to the Law Department, the case is deemed en banc because the report is
submitted En banc by the law Department." Petitioner having invoked the jurisdiction of the
Commission en banc is now estopped from questioning the same after obtaining an adverse judgment
therefrom.
Thirdly, Commissioner Andres R. Flores, who opined that the disqualification case should first be resolved
by the Second Division, has since then clarified his position after he was reminded that Resolution No.
2050, which he had admittedly "completely forgotten" had "laid down a definite policy on the disposition of
disqualification cases contemplated in Section 68 of the Omnibus Election Code. 13
Lastly, Resolution No. 2050 specifically mandates a definite policy and procedure for disqualification cases.
The COMELEC Rules of Procedure speak of special actions, which include disqualification cases, in general.
Hence, as between a specific and a general rule, the former shall necessarily prevail.
Anent the propriety of the issuance of the resolution denying petitioner's motion for reconsideration, suffice
it to say that the requirement of notice in the promulgation of resolutions and decisions of the COMELEC
embodied in Section 5 of Rule 18 of the Rules does not apply in the case at bar for the simple reason that
a motion for reconsideration of an en banc ruling, resolution, order or decision is not allowed under Section
1, Rule 13 thereof.
Respondent COMELEC, in dismissing the petition for disqualification and in holding that respondent Binay is
not guilty of vote buying, ruled as follows:
xxx xxx xxx
The commission concurs with the findings of the Law Department on enumeration Nos. 2
and 3 but rejects exception to the recommendation for prosecution of respondent Binay
under No. 1 therefor, it appearing that there is a clear misappreciation of the evidence
submitted considering the inconsistencies in the testimonies of material witnesses for the
petitioners, as well as the correct interpretation and application of the law cited as basis
for the prosecution of respondent Binay.
xxx xxx xxx
The seventeen (17) Affidavits submitted by petitioners attached to their original petition
for disqualification dated January 11, 1988, differ form the twenty (20) affidavits attached
to the memorandum of petitioners filed with the Commission (Second Division) on August
22, 1988. The records of the case do not show that these seventeen (17) affidavits
attached to the original petition were affirmed by the affiants during the investigation
conducted by the Law Department of this Commission. Of the twenty (20) affidavits
appended to the Memorandum of August 22, 1988, only five (5) of the affiants were able
to affirm their testimonies before hearing officer Alioden Dalaig of the Law Department of
this Commission . . .
xxx xxx xxx
In his counter affidavit, respondent Jejomar C. Binay denied the allegations in the petition
for disqualification and interposed the defense that:
The Christmas gift-giving is an annual project of the Municipal
Government of Makati ever since the time of Mayors Estrella and Yabut
in the spirit of yuletide season wherein basic and essential items are
distributed to the less fortunate and indigent residents of Makati out of
14

funds appropriated for the purpose duly budgeted and subject to audit
by the Commission on Audit and same were prepared sometime on
October 1987 long before I filed my certificate of candidacy and ceased
to be the Acting Mayor of Makati, . . .
The alleged ticket bearing my name, assuming its existence, indicates
nothing of significance except that of a Christmas and New Year greeting
and is not suggestive of anything which may be considered or
interpreted to be political in nature such as indorsing my candidacy for
that matter. . . .
xxx xxx xxx
It is undisputed that at the time the supposed "gift-giving" transpired between the periods
of December 22-30, 1987, respondent Binay was no longer Mayor of the Municipality of
Makati having resigned from the position on December 2, 1987, to pursue his candidacy
for re-election to the same position. The OIC Mayor of Makati on the dates complained of,
December 22-30, 1987, was OIC Mayor Sergio S. Santos who stated in his affidavit dated
February 4, 1988, that he was Officer-in-Charge of Makati, Metro Manila, from December
2, 1987 to February 2, 1988, and that as such he implemented on December 18, 1987 the
municipal government's annual and traditional distribution of Christmas gifts.
There is ample evidence to show that it was not respondent Binay who "gave" the plastic
bags containing Christmas gifts to the witnesses who executed affidavits for the
petitioners. The "giver" was in fact the Municipality of Makati. And this is evidenced by the
following documents attached to the records of this case:
1) Certification dated January 11, 1988 issued by OIC Roberto A. Chang
attached as Annex A to respondent Binay's counter affidavit dated
February 5, 1988.
2) COA Report dated January 11, 1988 attached as Annex "R" to the
pleading denominated as Motion to Set Hearing filed by complainant
Oliver Lozano dated July 26, 1988, filed in connection with SPC No. 88-
040 for disqualification against respondent Binay;
The findings of the COA Report itself (dated June 21, 1988) upon which petitioners rely
heavily in their disqualifications case against respondent Binay, identify the "giver" of the
Christmas gifts as the Municipality of Makati and not respondent Binay. . . .
xxx xxx xxx
Respondent Binay's allegation that the gift-giving was an annual project of the Municipal
Government of Makati was not denied nor disputed by the petitioners who in fact made
capital of the aforequoted findings of the Commission on Audit in their charge against
respondent Binay for alleged misuse of public funds. Also, petitioners in their latest
pleading filed with the Commission on July 2, 1990, entitled "Motion To Resolve The
Disqualification Case Jointly With The Investigation Report of the Law Department"
instead of rebutting respondent Binay's allegation that the Christmas gift giving is an
annual project of the Municipal Government of Makati ever since the time of Mayors
Estrella and Yabut, merely stated that:
. . . Assuming arguendo that Mayor Estrella had practiced this gift-giving
every Christmas, the fact is, that there had been no electoral campaign
on-going during such distribution and/or no election was scheduled
during Mayor Estrella's tenure.
"This is also true in the case of Mayor Yabut."
15

More Petitioners' documentary evidence, among which are Exhibits "A", "A-1"; "A-2"; "A-
20";"B"; "B-1"; "B-2"; "B-25"; "C-1"; "C-2"; "C-27"; "D"; "E" and "F", all show indubitably
that the Christmas packages which were distributed between the periods of December 22-
30, 1987, were ordered, purchased and paid for by the Municipality of Makati and not by
respondent Binay. There is more than prima facieproofs to show that those gift packages
received by the witnesses for petitioners were intended as Christmas presents to Makati's
indigents in December 1988.
It would therefore appear from the evidence submitted by the petitioners themselves that
the giver, if any, of the Christmas gifts which were received by the witnesses for the
petitioners was in fact, the Municipality of Makati and not respondent Jejomar C. Binay.
The presence of respondent Binay, if at all true at the time the gifts were distributed by
the Municipality of Makati to the recipients of the Christmas gifts, was incidental. It did
not make respondent Binay as the "giver" of those Christmas gifts. Nor did the giving of
such gifts by the Municipal Government of Makati influence the recipients to vote for
respondent Binay considering that the affiants themselves who testified for the petitioners
admitted and were aware that the gift packages came from the Municipality of Makati and
not from respondent Jejomar C. Binay.
The foregoing conclusion is confirmed by petitioners' witnesses in the persons of Lolita
Azcarraga, Johnson Carillo, Rommel Capalungan, Renato Leonardo, Manuel Allado, Edwin
Pascua, Wilberto Torres, Apolonio De Jesus, Caridad Reposar, Artemus Runtal and Jose
Ermino who, in their sworn statements, uniformly described the gift package as labelled
with the words "Pamaskong Handog ng Makati", a clear indication that the "giver" of the
Christmas gifts was indeed the Municipality of Makati and not respondent Binay.
There is one aspect of this case which somehow lends credence to respondent Binay's
claim that the instant petition is a political harassment. It is noted by the commission that
while the criminal indictment against respondent Binay is for alleged violation of Section
261 (a) of the Omnibus Election Code, petitioners did not implead as party respondents
the affiants who received the Christmas packages apparently in exchange for their votes.
The law on "vote buying" [Section 261 (a)supra] also penalizes "vote-buying" and "vote-
selling", then the present indictment should have been pursued against both respondent
Binay and against the affiants, against the former for buying votes and against the latter
for selling the votes. 14
xxx xxx xxx
We uphold the foregoing factual findings, as well as the conclusions reached by respondent COMELEC, in
dismissing the petition for the disqualification of respondent Binay. No clear and convincing proof exists to
show that respondent Binay was indeed engaged in vote buying. The traditional gift-giving of the
Municipality of Makati during the Christmas season is not refuted. That it was implemented by respondent
Binay as OIC Mayor of Makati at that time does not sufficiently establish that respondent was trying to
influence and induce his constituents to vote for him. This would be stretching the interpretation of the law
too far. Petitioner deduces from this act of gift-giving that respondent was buying the votes of the Makati
residents. It requires more than a mere tenuous deduction to prove the offense of vote-buying. There has
to be concrete and direct evidence or, at least, strong circumstantial evidence to support the charge that
respondent was indeed engaged in vote-buying. We are convinced that the evidence presented, as swell as
the facts obtaining in the case at bar, do not warrant such finding.
Finally, we have consistently held that under the 1935 and 1973 Constitutions, and the same is true under
the present one, this court cannot review the factual findings of the Commission on Elections absent a
grave abuse of discretion and a showing of arbitratriness in its decision, order or resolution. Thus:
The principal relief sought by petitioner is predicated on the certiorari jurisdication of this
court as provided in Section 11, Article XII-C, 1973 Constitution. It is, as explained
in Aratuc vs. Commission on Elections, "not as broad as it used to be" under the old
Constitution and it "should be confined to instances of grave abuse of discretion
amounting to patent and substantial denial of due process." Moreover, the legislative
16

construction of the constitutional provision has narrowed down "the scope and extent of
the inquiry the Court is supposed to undertake to what is strictly the office of certiorarias
distinguished from review." And in Lucman vs. Dimaporo, a case decided under the
Constitution of 1935, this Court speaking through then Chief Justice Concepcion, ruled
that "this Court can not . . . review rulings or findings of fact of the Commission on
Elections," as there is "no reason to believe that the framers of our Constitution intended
to place the [said] Commission created and explicitly made "independent" by the
Constitution itself on a lower level" than statutory administrative organs (whose factual
findings are not "disturbed by courts of justice, except when there is absolutely no
evidence or no substantial evidence in support of such findings.") Factual matters were
deemed not proper for consideration in proceedings brought either "as an original action
for certiorari or as an appeal by certiorari. . . [for] the main issue in . . . certiorari is one
of jurisdiction lack of jurisdiction or grave abuse of discretion amounting to excess of
jurisdiction" while "petitions for review oncertiorari are limited to the consideration of
questions of law."
The aforementioned rule was reiterated in the cases of Ticzon and Bashier. Indeed, as
early as the year 1938, applying Section 4, Article VI of the 1935 Constitution, this Court
held that the Electoral Commission's "exclusive jurisdiction" being clear from the language
of the provision, "judgment rendered . . . in the exercise of such an acknowledged power
is beyond judicial interference, except "upon a clear showing of such arbitrary and
improvement use of the power as will constitute a denial of due process of law." Originally
lodged in the legislature, that exclusive function of being the "sole judge" of contests
"relating to the election, returns, and qualifications "of members of the legislature was
transferred "in its totality" to the Electoral Commission by the 1935 Constitution. That
grant of power, to use the language of the late justice Jose P. Laurel, "was intended to be
as complete and unimpaired as if it had remained originally in the legislature . . . " . . .
. . . A review of the respondent Commission's factual findings/conclusions made on the
basis of the evidence evaluated is urged by the petitioner, "if only to guard against or
prevent any possible misuse or abuse of power." To do so would mean "digging into the
merits and unearthing errors of judgment" rendered on matters within the exclusive
function of the Commission, which is proscribed by the Aratuc and other decisions of this
Court. . . . 15
The charge against respondent Binay for alleged malversation of public funds should be threshed out and
adjudicated in the appropriate proceeding and forum having jurisdiction over the same. Consequently, it
was properly dismissed by the Commission on Elections.
WHEREFORE, the questioned order of respondent Commissioner Haydee B. Yorac in G.R. No. 94521 and
the challenged resolutions of respondent Commission on Elections subject of the petition in G.R. No. 94626
are hereby AFFIRMED. The temporary restraining order issued in G.R. No. 94521 is hereby LIFTED and
SET ASIDE.
SO ORDERED.





17

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 87743 August 21, 1990
ROBERT F. ONG, petitioner
vs.
MARIA TERESITA HERRERA-MARTINEZ, THE CITY COUNCIL OF MANILA and THE CITY
TREASURER OF MANILA, respondents.
Claro Jordan M. Santamaria for petitioner.
F.B. Santiago, Nalus, Magtalas, Catalan & Associates for respondents.
Nemesio C. Garcia, Jr. for City Council.

PARAS, J.:
Petitioner Robert F. Ong assails the appointment and assumption of duties as Councilor in the City Council
of Manila of respondent Ma. Teresita Herrera-Martinez, in place of deceased Councilor Saturnino Herrera
who represented the Third District of Manila.
It appears that Saturnino Herrera, who was the father of respondent Martinez, was one of the Liberal Party
candidates duly elected as Councilor for Manila's Third District in the local elections of January 18, 1988.
He performed his duties as such councilor until his death on October 14, 1988, thus leaving the position
open for the appointment of a qualified replacement from the same political party where the deceased
councilor belonged.
Petitioner, who was a defeated candidate of the Liberal Party in the Third District of Manila, on the
strength of an indorsement by the Treasurer of the said party in the district which was allegedly supported
by 80% of the ward leaders of the party of the same district as embodied in their resolution, was
appointed on February 9, 1989 as member of the Sangguniang Panglunsod (City Council) by the Secretary
of Local Government to fill the vacancy created by the late Councilor Saturnino Herrera. On the same date,
petitioner took his oath of office as such councilor after which the Secretary of Local Government informed
Mayor Gemiliano Lopez, Jr. and Vice-Mayor and Presiding Officer Danilo Lacuna of the appointment of
petitioner. Likewise, in his lst Indorsement of March 13, 1989, the Undersecretary of Local Government
forwarded petitioner's appointment to Presiding Officer of the City Council Danilo Lacuna.
In the regular session of the City Council held on March 9, 1989, said Council, acting on the letter of the
Secretary of Local Government dated February 9, 1989 informing them of the four appointments including
that of petitioner, moved to exclude petitioner and the other appointees from the session hall. In the
subsequent session of the Council on March 14, 1989, petitioner and his co-appointees were formally
excluded from the session hall with sixteen (16) councilors voting for such exclusion and none against it,
with the rest of the Council members abstaining.
The records show that respondent Martinez went through the legal formalities or standard procedure prior
to her appointment to the vacated position subject of this. controversy.
Thus, on November 4, 1988, nine out of the eleven incumbent LP Councilors in the City Council endorsed
the appointment of respondent per their resolution. This resolution was forwarded to the Office of the
Chairman of the Liberal Party, Manila Chapter.
18

On March 1, 1989, aforesaid Chairman, in turn, nominated respondent for appointment per his letter-
nomination to President Corazon Aquino thru the Secretary of Local Government. On March 8, 1989,
Senate President Jovito Salonga as National Head of the Liberal Party was furnished with a copy of this
letter-nomination.
On March 13, 1989, Congressman Leonardo Fuguso as President of the LP Third District Chapter also
nominated respondent to National President Salonga of the Party. President Salonga, in turn, nominated
respondent to Secretary Luis Santos of the Department of Local Government pursuant to Section 50 of the
Local Government Code.
On March 17, 1989, Secretary Santos, acting for the President, issued an appointment to respondent.
Then on March 21, 1989, the first session day after respondent's appointment, the City Council, by a vote
of twenty-four members in favor with no member opposing recognized her as member of said Council.
Finally, the Presiding Officer of the City Council directed its Secretariat to include the name of respondent
in the payroll of the City Council.
Respondent thus assumed and performed her duties as Councilor for the Third District of Manila until the
restraining order of the Court issued on April 20, 1989 was received by respondent.
This petition now seeks to annul the appointment of respondent Martinez and to declare petitioner to be
the holder of the position of Councilor in place of deceased Saturnino Herrera.
Petitioner anchors his appeal on the following grounds:
1. The Secretary of the Department of Local Government, in appointing respondent Martinez on March 17,
1989, violated the election ban on appointments under Res. No. 2054 of the Comelec dated December 7,
1988 since her appointment was not cleared for exemption from the election ban and, therefore, the same
was made beyond and in excess of the Secretary's authority and by reason of which, the appointment is
null and void.
2. Respondent Martinez is not a member of the Liberal Party and cannot be appointed to the position of
Councilor, a vacancy created by the death of a member of said Party.
3. Petitioner's appointment is valid, complete and beyond recall.
4. Petitioner is entitled to the position held by respondent. Respondent, on the other hand, argues:
1. Petitioner misled the Court in claiming that he has a right to the contested position. His appointment
was indorsed only by the Treasurer of the LP Chapter, 3rd District of Manila. The Treasurer's indorsement
was not known nor authorized by the head of the LP in said district. Neither was the nomination brought to
the attention of the Chairman of the LP, Manila Chapter. The proper procedure was not observed by
petitioner. The unauthorized action of petitioner cannot be cured or ratified by an alleged resolution of
80% of ward leaders and which resolution was adopted long after the appointment of petitioner. Hence,
petitioner's appointment was void from the very beginning for lack of authority of the Treasurer who
nominated him.
Contrary to petitioner's claim, respondent also contends that the former has not assumed office; neither
has he exercised or performed the functions of the position because he was prevented from doing so by
the outright refusal of the City Council to recognize his appointment.
2. Petitioner has no right to the position and for which reason, he lacks the legal personality to institute the
present petition for quo warranto, mandamus and prohibition.
19

While petitioner claims that he took his oath on February 9, 1989 which was a calculated move to avoid
the election ban on appointments, he used a Residence Certificate issued on February 22, 1989 only. This
means that he could not have taken his alleged oath before the issuance of the residence certificate.
3. The appointment of respondent possesses all the requisites of a valid appointment according to legal
and regular procedures. She avers that her appointment was indorsed by nine out of eleven LP incumbent
councilors and that her nomination was favorably indorsed by the Liberal Party hierarchy from the
Chairman of the Third District, thru the Chairman of the Manila Chapter up to the National President of the
LP; and, that she was duly appointed on the basis of the series of nominations of the LP hierarchy.
4. The appointment of respondent is not covered by the election ban contemplated under Sec. 261 (g) of
the Omnibus Election Code.
The case for respondent appears meritorious. Respondent had gone through the regular and standard
nomination process which had been officially acknowledged by the Secretary of Local Government.
Sec. 50 of the Local Government Code specifically provides:
In case of permanent vacancy in the sangguniang panlalawigan, sangguniang
panglungsod, sangguniang bayan or sangguniang barangay, the President of the
Philippines, upon recommendation of the Minister of Local Government, shall appoint a
qualified person to fill the vacancy in the sangguniang panlalawigan and sangguniang
panglunsod of highly urbanized and component cities; the governor, in the case of
sangguniang bayan members; or the city or municipal mayor, in the case of sangguniang
barangay members. Except for the sangguniang barangay, the appointee shall come from
the political party of the sangguniang member who caused the vacancy, and shall serve
the unexpired term of the vacant office. (Emphasis supplied)
Since deceased Councilor Saturnino Herrera who had caused the contested vacancy comes from the Liberal
Party, it follows that his mode of replacement should be governed by the standing rules of the aforenamed
Party.
Thus, We quote the pertinent sections of the 1967 Liberal Party Revised Rules (1971 Reprint furnished by
the Comelec):
Rule 32. Approval of Resolution of District, Provincial, City of Municipal Government.
Resolutions adopted by provincial, district, city or municipal committee shall not be final
unless approved by the National Directorate, the Executive Committee, or the Party
President. (Under Chapter Ill on The Manila City Special Rules)
Thus, too, Section A (3) of Rule 10 of the Liberal Party Rules (on the Powers of the National Directorate)
provides:
3) To choose and proclaim official candidates of the Party for provincial positions, and
whenever necessary, convenient or proper, also for Municipal and City positions, in
accordance with the requirements of these Rules.
Conformably with the aforequoted provisions of the Liberal Party Rules, all resolutions, which may include
resolutions nominating replacements for deceased city councilors, should first be approved either by the
National Directorate, the Executive Committee or the Party President in order that said resolutions could be
considered final and valid.
Logically and by analogy, the National Directorate or in its stead, the Executive Committee or the Party
President may choose and nominate the party's proposed appointee, from among its members, to the
position vacated by a deceased city councilor.
20

Correspondingly, We quote hereunder the body of the letter-nomination of the then LP National President
Jovito R. Salonga explicitly manifesting the full support of the party hierarchy for herein respondent. Thus

I hereby nominate in behalf of the Liberal Party of which I am the incumbent President
Ms. Maria Teresita Herrera-Martinez, to take the place of Councilor Saturnino C. Herrera
of the Liberal Party who passed away on October 14,1988.
Ms. Martinez is likewise the recommendee of the Liberal Party, Manila Chapter headed by
former Assemblyman Lito Atienza. She is also recommended by Congressman Leonardo
Fuguso. Please be advised that the Liberal Party, under which the late Councilor Saturnino
C. Herrera was elected, has no nominee to the vacated position other than Ms. Maria
Teresita Herrera-Martinez. This is also to serve notice that no other person is authorized
to nominate any LP member to any vacancy in the City Council of Manila." (Emphasis
supplied)
Acting on the solid recommendation of the LP hierarchy, from the district level up to the national level, the
Secretary of Local Government correspondingly issued the letter-appointment to respondent Martinez, the
pertinent portion of which reads as follows:
Upon the recommendation of the President of the Liberal Party and the Chapter President
of the Liberal Party, 3rd District of the City of Manila, and pursuant to the provisions of
existing laws, you are hereby appointed member of the Sangguniang Panglungsod, City of
Manila, Vice Councilor Saturnino C. Herrera. (Emphasis supplied)
Notably, respondent's appointment was accepted or recognized by the City Council in its session of March
21, 1989. The minutes of said session reveal that twenty-four (24) councilors voted to accept the
appointment of respondent and not a single member objected to or opposed the acceptance. Right then
and there, the Presiding Officer announced the acceptance of respondent's appointment and the Chair
directed the Secretariat to include her name as a new member of the City Council.
In the case of petitioner, however, a very different scenario took place. The letter dated February 9, 1989
of Secretary Luis Santos informing Vice-Mayor and Presiding Officer Lacuna that he had appointed
petitioner and three other appointees, carried a request that due recognition be accorded to them,
particularly petitioner as member of the Council. Petitioner and the other appointees, as per minutes of the
Council's session of March 9, 1989, were excluded from the session hall by reason of the seconded motion
of the Majority Floor Leader. In the subsequent session of the Council on March 14, 1989, petitioner and
his co-appointees were formally excluded from the session hall when sixteen (1 6) members of the Council
voted in favor of their exclusion and no one against it. Significantly, such exclusion meant that the City
Council refused to recognize their appointments.
As a conclusive confirmation of the non-recognition of petitioner's defective appointment, the Secretary of
Local Government recalled the former's appointment in his letter of March 17, 1989. The letter thus reads:
Dear Mr. Ong:
In connection with our letter of February 9,1989, appointing you as Sangguniang
Panglunsod member of the City of Manila as a consequence of the death of Councilor
Saturnino C. Herrera, please be informed that we are recalling said appointment it
appearing that you were not recommended for the position by the appropriate leader of
the Liberal Party as mandated by the sub-section b(1) Rule XIX of the, Rules and
Regulations Implementing the Local Government Code (Batas Pambansa Blg. 337).
(Emphasis supplied)
Both petitioner and respondent have invoked the election ban imposed under Sec. 261 (g) of the Omnibus
Election Code. The election ban covered the period from February 11 to March 27, 1989 by reason of the
Barangay election held on March 28, 1989. Both parties have capitalized on the prohibitive provision for the
purpose of having their respective appointments declared illegal or null and void.
21

Sec. 261 (g) of the Omnibus Election Code provides thus:
(g) Appointment of new employees, creation of new position, promotion, or giving salary
increases. During the period of forty- five days before a regular election and thirty days
before a special election, (1) any head, official or appointing officer of a government
office, agency or instrumentality, whether national or local, including government-owned
or controlled corporations, who appoints or hires any new employee whether provisional,
temporary or casual, or creates and fills any new position, except upon prior authority of
the Commission. The Commission shall not grant the authority sought unless, it is
satisfied that the position to be filled is essential to the proper functioning of the office or
agency concerned, and that the position shall not be filled in a manner that may influence
the election.
As an exception to the foregoing provisions, a new employee may be appointed in case of
urgent need: Provided, however, That notice of the appointment shall be given to the
Commission within three days from the date of the appointment. Any appointment or
hiring in violation of this provision shall be null and void.
The aforequoted provision does not apply to both assailed appointments because of the following reason:
The permanent vacancy for councilor exists and its filling up is governed by the Local Government Code
while the appointment referred to in the election ban provision is covered by the Civil Service Law.
For having satisfied the formal requisites and procedure for appointment as Councilor, which is an official
position outside the contemplation of the election ban, respondent's appointment is declared valid.
The issue on the alleged discrepancy between the dates of petitioner's oath and his residence certificate
need not be tackled now because it will not anymore affect the recalled appointment of petitioner. If ever,
the matter casts a doubt on petitioner's credibility and honesty.
WHEREFORE, the petition is hereby DISMISSED, and the temporary restraining order is correspondingly
LIFTED.
SO ORDERED.











22

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 115022 August 14, 1995
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. WILFREDO D. REYES, Presiding Judge, RTC, Branch 36, Manila and BUENAVENTURA C.
MANIEGO,respondents.

PUNO, J.:
This is a petition for certiorari and mandamus under Rule 65 of the Revised Rules of Court to annul and set
aside the orders dated September 23, 1993 and January 25, 1994 of respondent Judge Wilfredo D. Reyes,
Regional Trial Court, Branch 36, Manila in Criminal Case No. 93-120275.
The facts reveal that respondent Buenaventura C. Maniego, Collector of Customs, Collection District II,
Bureau of Customs, Manila International Container Port (MICP), issued MICP Customs Personnel Order No.
21-92 dated January 10, 1992 assigning Jovencio D. Ebio, Customs Operation Chief, MICP to the Office of
the Deputy Collector of Customs for Operations as Special Assistant.
1
The actual transfer of Ebio was
made on January 14, 1992.
On May 4, 1992, Ebio filed with the Commission on Elections (COMELEC) a letter-complaint protesting his
transfer. Ebio claimed that his new assignment violated COMELEC Resolution No. 2333 and section 261 (h)
of B.P. Blg. 881, the Omnibus Election Code, which prohibit the transfer of any employee in the civil service
120 days before the May 11, 1992 synchronized national and local elections.
After a preliminary investigation, the COMELEC filed on May 6, 1995 an information with the Regional Trial
Court, Branch 36, Manila charging respondent Maniego with a violation of Section 261 (h) of B. P. Blg. 881
committed as follows:
That on or about January 14, 1992 which was within the election period of the May 11, 1992
synchronized elections and within the effectivity of the ban on transfer or detail of officers and
employees in the civil service, in the City of Manila, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, a public official, being the Collector of Customs VI,
Manila International Container Port, Bureau of Customs, by taking advantage of his position and
abuse of authority, did, then and there, wilfully and unlawfully, transfer Jovencio D. Ebio, Chief of
the Piers and Inspection Division, Manila International Container Port, Bureau of Customs, to
Special Assistant in the office of the Deputy Collector for Operations, of the same office, without a
prior written authority from the Commission on Elections.
2

Before the arraignment, respondent Maniego moved to quash the information on the ground that the facts
alleged do not constitute an offense. He contended that the transfer of Ebio on January 14, 1992 did not
violate B.P. Blg. 881 because on that date the act was not yet punishable as an election offense. It
purportedly became punishable only on January 15, 1992, the date of effectivity of COMELEC Resolution
No. 2333 implementing Section 261 (h) of B.P. Blg. 881. Petitioner, through the COMELEC, opposed the
motion to quash.
23

On September 23, 1993, the trial court granted private respondent's motion to quash and dismissed
Criminal Case No. 93-120275.
3
Petitioner moved to reconsider but the same was denied on January 25,
1995.
4
Petitioner forthwith elevated the case to this Court on a pure question of law.
We affirm.
The basic law supposed to have been violated by respondent Maniego is Section 261 (h) of B.P. Blg. 881
which reads as follows:
Sec. 261. Prohibited acts. The following shall be guilty of any election offense:
xxx xxx xxx
(h) Transfer of officers and employees in the civil service. 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 supplied)
The Constitution has fixed the election period for all elections to commence ninety (90) days before the
day of election and end thirty (30) days thereafter, unless otherwise fixed in special cases by the
COMELEC.
5
For the May 11, 1992 synchronized national and local elections, the COMELEC fixed a longer
election period of one hundred twenty (120) days before the scheduled elections and thirty (30) days
thereafter. It issued Resolution No. 2314 on September 23, 1991 primarily adopting therein a calendar of
activities. In the process, it designated January 12, 1992 to June 10, 1992 as the election period, viz.:
RESOLUTION NO. 2314
Pursuant to the powers vested in it by the Constitution of the Republic of the Philippines, the
Omnibus Election Code (B.P. Blg. 881), and Republic Act No. 7166, the Commission on Elections
has RESOLVED to adopt, the following calendar of activities for the May 11, 1992 elections:
Date/Period Activities
November 28, 1991 Start of the period of nomination and selection of official candidates for
President, Vice-President and Senators (165 days, SEC. 6, R.A.7166)
January 2, 1992 Last day for appointment of members of boards of election inspectors
(Sec.164, OEC) (Subject to appointments which may be extended later in account of lack of public
school teachers and disqualifications due to relationship to candidates.)
January 12, 1992 ELECTION PERIOD (120 (Sunday) todays, per Res. No. ____ )
June 10, 1992 Bans on carrying of firearms Wednesday suspension of elective local officials,
organization of strike forces, etc. (Sec. 261,
OEC)
6

xxx xxx xxx
On January 2, 1992, the COMELEC promulgated Resolution No. 2328 for the sole and specific purpose of
fixing for the said elections the election period from January 12, 1992 to June 10, 1992.
7
This Resolution
was published in the January 5, 1992 issue of the Manila Times and the January 6, 1992 issue of
the Philippine Times Journal.
8

On January 2, 1992, the COMELEC also passed Resolution No. 2333 which promulgated the necessary
rules to enforce Section 261 of B.P. Blg. 881. We quote its pertinent portions:
RESOLUTION NO. 2333
24

WHEREAS, the Omnibus Election Code of the Philippines provides:
Sec. 261. Prohibited acts, The following shall be guilty of an election offense:
xxx xxx xxx
(h) Transfer of officers and employees in the civil service. 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.
xxx xxx xxx
WHEREAS, to enforce effectively the foregoing provisions, there is need to promulgate the
necessary rules for the guidance of all concerned;
NOW, THEREFORE, pursuant to the power vested in it by the Constitution, the Omnibus Election
Code, Republic Acts No. 6646 and 7166 and other election laws, the Commission has RESOLVED
to promulgate, as it hereby promulgates, the following rules to implement the provisions of Sec.
261, subsections (g), (h) and (x) of the Omnibus Election Code.
xxx xxx xxx
Sec. 2. Request for authority of the Commission. Any request for authority to make or cause
any transfer or detail of any officer or employee in the civil service, including public school
teachers, shall be submitted in writing to the Commission indicating therein the office and place to
which the officer or employee is proposed to be transferred or detailed, and stating the reason
therefor.
xxx xxx xxx
Sec. 6. Effectivity. This resolution shall take effect on the seventh day after its publication in
two (2) newspapers of general circulation in the Philippines.
xxx xxx xxx
Resolution No. 2333 was published in the January 8, 1992 issues of Malaya and the Manila Standard.
Hence, it took effect on January 15, 1992, the seventh day after its publication.
It is undeniable that the transfer of complainant Ebio on January 14, 1992 was made during the election
period. The question, however, is whether this transfer ipso facto makes respondent Maniego liable for an
election offense under Section 261 (h) of B.P. Blg. 881.
We rule in the negative.
We start with the constitutional injunction that no officer or employee in the civil service shall engage,
directly or indirectly, in any electioneering or partisan political campaign.
9
This prohibition is reiterated in
the Administrative Code of 1987.
10
Section 261 (h) of B.P. Blg. 881 implements this constitutional
prohibition.
It ought to be immediately obvious that Section 261 (h) of B.P. Blg. 881 does not per se outlaw the
transfer of a government officer or employee during the election period. To be sure, the transfer or detail
of a public officer or employee is a prerogative of the appointing authority.
11
It is necessary to meet the
exigencies of public service sometimes too difficult to perceive and predict. Without this inherent
prerogative, the appointing authority may not be able to cope with emergencies to the detriment of public
service. Clearly then, the transfer or detail of government officer or employee will not be penalized by
Section 261 (h) of B.P. Blg. 881 if done to promote efficiency in the government service. Hence, Section 2
25

of Resolution No. 2333 provides that the COMELEC has to pass upon the reason for the proposed transfer
or detail, viz: "Any request for authority to make or cause any transfer or detail of any officer or employee
in the civil service, including public school teachers, shall be submitted in writing to the Commission
indicating therein the office and place to which the officer or employee is proposed to be transferred or
detailed, and stating the reason therefor.
12

Prescinding from this predicate, two (2) elements must be established to prove a violation of Section 261
(h) of B.P. Blg. 881, viz: (1) The fact of transfer or detail of a public officer or employee 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.
In the case at bench, respondent Maniego transferred Ebio, then the Customs Operation Chief, MICP to the
Office of the Deputy Collector of Customs for Operations as Special Assistant on January 14, 1992. On this
date, January 14, 1992, the election period for the May 11, 1992 synchronized elections had already been
fixed to commence January 12, 1992 until June 10, 1992. As aforestated, this election period had been
determined by the COMELEC in its Resolution No. 2314 dated November 20, 1991 and Resolution No. 2328
January 2, 1992. Nonetheless, it was only in Resolution No. 2333 which took effect on January 15,
1992 that COMELEC promulgated the necessary rules on how to get its approval on the transfer or detail of
public officers or employees during the election period. Before the effectivity of these rules, it cannot be
said that Section 261 (h) of B.P. Blg. 881, a penal provision, was already enforceable. Needless to state,
respondent Maniego could not be charged with failing to secure the approval of the COMELEC when he
transferred Ebio on January 14, 1992 as on that day, the rules of the COMELEC on the subject were yet in
existent.
IN VIEW WHEREOF, the petition is dismissed and the orders dated September 23, 1993 and January 25,
1995 of the respondent judge in Criminal Case No. 93-120275 are affirmed.
SO ORDERED.
Narvasa, C.J., Regalado, Mendoza and Francisco, JJ., concur.

















26

EN BANC
[G.R. No. 136587. August 30, 1999]
ERNESTO BIBOT A. DOMINGO, JR., petitioner, vs. COMMISSION ON ELECTIONS and
BENJAMIN BENHUR D. ABALOS, JR., respondents.
D E C I S I O N
GONZAGA-REYES, J.:
Assailed in this special civil action for certiorari are the En Banc Resolution of the Commission on
Elections (COMELEC), dated December 1, 1998,
[1]
and the Resolution of the COMELEC First Division,
dated July 2, 1998,
[2]
in SPA No. 98-361, which dismissed, for lack of merit, the petition for disqualification
filed against herein private respondent, the incumbent mayor of Mandaluyong City.
In the May 11, 1998 elections, petitioner Ernesto Domingo, Jr. and private respondent Benjamin
Abalos, Jr. were both mayoralty candidates of Mandaluyong City. After private respondents proclamation
on May 17, 1998, petitioner filed the instant petition for disqualification, on the ground that, during the
campaign period, private respondent prodded his father, then incumbent Mandaluyong City Mayor
Benjamin Abalos, Sr., to give substantial allowances to public school teachers appointed as chairpersons
and members of the Boards of Election Inspectors (BEIs) for Mandaluyong City.
Petitioners allegations obtain from an incident on April 14, 1998, wherein, in a Pasyal-Aral outing
for Mandaluyong City public school teachers in Sariaya, Quezon, then Mayor Benjamin Abalos, Sr.
announced that the teachers appointed to the BEIs will each be given a hazard pay of P1,000.00 and food
allowance of P500.00, in addition to the allowance of P1,500.00.
[3]
In the petition for disqualification filed
before the COMELEC First Division, petitioner charged that private respondents influence over his father on
this matter was evident from the following declaration of father Abalos, Sr.:
Your President [referring to Mr. Alfredo de Vera, President of the Federation of Mandaluyong Public School
Teachers], together with Benhur, walang tigil yan kakapunta sa akin at not because he is my son siya ang
nakikipag-usap sa kanila and came up with a beautiful compromise. xxx
[4]

As alleged by petitioner, the foregoing statement was revealing of how private respondent prodded
his father, then Mayor Abalos, Sr., to award substantial allowances to the public school teachers who will
assume seats in the BEIs in the May 11, 1998 elections, as to influence them into voting for him and
ensuring his victory.
Mayor Abalos, Sr.s speech, as well, as other activities in the aforesaid Pasyal-Aral outing, were
recorded on videotape per instructions of Mr. Perfecto Doroja, an associate of petitioner.
[5]
In addition to
the videotape, petitioner also submitted photographs of a streamer, hung at the entrance of the Tayabas
Bay Beach Resort, Sariaya, Quezon, declaring Mayor Benjamin S. Abalos, Sr. as co-sponsor of the Pasyal-
Aral,
[6]
as well as affidavits of three public school teachers who participated in the said activity.
[7]

Petitioner alleges that private respondents act of prodding his father, then incumbent mayor
Benjamin S. Abalos, Sr., to give substantial allowances to the Mandaluyong City public school teachers
constitutes a violation of Section 68 of the Omnibus Election Code, the pertinent provisions of which read:
Sec. 68. Disqualifications. Any candidate who, in an action or protest in which he is a party is declared
by final decision of a competent court guilty of, or found by the Commission of having (a) given money or
other material consideration to influence, induce or corrupt the voters or public officials performing
electoral functions; xxx shall be disqualified from continuing as a candidate, or if he has been elected, from
holding the office. xxx
In dismissing the petition for disqualification for insufficiency of evidence and lack of merit, the
COMELEC First Division admonished petitioner and his counsel for attempting to mislead the COMELEC by
27

making false and untruthful statements
[8]
in his petition. On reconsideration, the COMELEC, En Banc,
affirmed the findings and conclusions of its First Division.
Before us, petitioner assails the Resolutions of public respondent COMELEC for being violative of his
right to due process, and thus, issued with grave abuse of discretion. It is petitioners argument that the
dismissal of his petition for disqualification on the ground of insufficiency of evidence was unfounded,
considering that no hearing on the merits was conducted by public respondent on the matter.
Petitioner next contends that grave abuse of discretion was likewise attendant in public respondents
act of dismissing the petition for disqualification for insufficiency of evidence, despite the overwhelming
pieces of evidence of petitioner, consisting of the video cassette, pictures and affidavits, which were not
denied by private respondent.
[9]
Petitioner further decries the fact that private respondent presented no
evidence to substantiate his defense, while all the pieces of evidence that he submitted in his petition for
disqualification were strong enough to prove violation by private respondent of Section 68 of the Omnibus
Election Code.
[10]

Before touching on the merits, we shall first resolve the procedural matters raised by private
respondent; namely, forum-shopping and failure to file this petition on time.
It is not disputed that, in addition to the petition for disqualification, petitioner also filed a criminal
complaint
[11]
and an election protest ex abundante cautelam
[12]
with public respondent COMELEC. Private
respondent contends that, inasmuch as the petition for disqualification and the complaint for election
offense involve the same issues and charges, i.e., vote-buying, exerting undue influence on BEI members,
petitioner should be held liable for forum-shopping.
We rule to the contrary. Forum-shopping exists when the petitioner files multiple petitions or
complaints involving the same issues in two or more tribunals or agencies.
[13]
The issues in the two cases
are different. The complaint for election offense is a criminal case which involves the ascertainment of the
guilt or innocence of the accused candidate and, like any other criminal case, requires a conviction on
proof beyond reasonable doubt.
[14]
A petition for disqualification, meanwhile, requires merely the
determination of whether the respondent committed acts as to merit his disqualification from office, and is
done through an administrative proceeding which is summary in character and requires only a clear
preponderance of evidence.
[15]

Next, petitioner admits receiving a copy of the assailed COMELEC First Division Resolution on July 13,
1998. He also admits filing a motion for reconsideration of the said COMELEC First Division Resolution on
July 20, 1998. A copy of the assailed COMELEC En Banc Resolution dated December 1, 1998 was received
by petitioner on December 4, 1998. Under Section 3, Rule 64 of the Revised Rules of Court, petitions
for certiorari from orders or rulings of the COMELEC
shall be filed within thirty (30) days from notice of the judgment or final order or resolution sought to be
reviewed. The filing of a motion for new trial or reconsideration of the said judgment or final order or
resolution xxx shall interrupt the period herein fixed. If the motion is denied, the aggrieved party may file
the petition within the remaining period, but which shall not be less than five (5) days in any event,
reckoned from notice of denial.
Section 4 of Rule 19 of the COMELEC Rules of Procedure likewise provides:
Effect of motion for reconsideration on period to appeal. A motion to reconsider a decision, resolution,
order or ruling when not pro-forma, suspends the running of the period to elevate the matter to the
Supreme Court.
Inasmuch as the filing of a motion for reconsideration interrupts the 30-day period within which to file
a petition for certiorari with this Court, petitioner has effectively consumed seven days of the abovestated
30-day period when he filed his motion for reconsideration. Thus, as correctly pointed out by private
respondent, when petitioner received a copy of the assailed COMELEC En Banc Resolution, he only had 23
days from December 4, 1998, the date when he received the COMELEC En Banc Resolution, or until
December 27, 1998
[16]
, to file the instant petition for certiorari. This petition was filed on January 4, 1999.
In any event, whether the petition was filed on time or not, an examination of the records leaves us
satisfied that public respondent COMELEC did not commit grave abuse of discretion in dismissing the
petition for disqualification.
28

First, on the issue of due process, we find no violation thereof when public respondent COMELEC
decided to dismiss the petition for disqualification without hearing. Well-established is the rule that the
essence of due process is simply an opportunity to be heard.
[17]
In Zaldivar vs. Sandiganbayan
[18]
, cited in
the recent case of Bautista vs. COMELEC
[19]
, we held that the right to be heard does not only refer to the
right to present verbal arguments in court. A party may also be heard through his pleadings. Where
opportunity to be heard is accorded, either through oral arguments or pleadings, there is no denial of
procedural due process.
Furthermore, the filing by petitioner of a motion for reconsideration accorded him ample opportunity
to dispute the findings of the COMELEC First Division, so that he was as fully heard as he might have been
had oral arguments actually taken place. Deprivation of due process cannot be successfully invoked where
a party was given the chance to be heard in his motion for reconsideration.
[20]

Next, petitioner re-asserts before us the sufficiency of his evidence to prove that private respondent
influenced the Mandaluyong City public school teachers, through his father, Abalos, Sr., in the performance
of their functions as members of the BEIs.
Petitioners evidence fails to persuade. First, the affidavits of the three teachers who participated in
the controversial Pasyal-Aral do not contain anything but the following bare declarations: (1) that they
heard Abalos, Sr. promise that he will give hazard pay of P1,000.00 and food allowance of P500.00, in
addition to the regular living allowance of P1,500.00, and (2) that, before the May 11, 1998 elections they
each received P1,500.00, or half of the total allowances promised by Abalos, Sr. in his speech. Nothing in
these affidavits suggests, let alone sets out, knowledge on any degree of participation of private
respondent in the grant of these allowances. The name of private respondent was not even mentioned or
alluded to by any of the three affiants.
Petitioner also submitted photographs taken of the streamer at the entrance of the Tayabas Bay
Beach Resort, welcoming the participants to the Pasyal-Aral and declaring the Mandaluyong City School
Board and then mayor Abalos, Sr. as co-sponsors of the affair. Since by law, the mayor is a co-chairman
of the City School Board
[21]
, we find nothing unusual in his having co-sponsored the said event. We fail to
see the connection between these pictures and the alleged influence wielded by private respondent on the
public school teachers of Mandaluyong City.
Yet it is upon the videotape recordings that petitioner lays much reliance on, in proving his case for
disqualification. The recordings are supposed to document how former mayor Abalos, Sr. announced that
his son, private respondent herein, prodded his father to release substantial allowances to teachers who
will act as members of the BEIs. As found by the COMELEC First Division, the name uttered in the
announcement was not Benhur, private respondents nickname and what petitioner alleged was uttered,
but Lito Motivo, a name which truly sounded unlike Benhur.
[22]
Also, when the COMELEC, through its
First Division, viewed the videotape submitted by petitioner, the speech of Mayor Abalos, Sr. was cut and
so (they) also did not see and hear that part of Mayor Abalos, Sr.s speech allegedly uttered by him.
[23]

In the Petition, petitioners counsel admitted that the assailed quotation in the petition for
disqualification was based on an erroneous transcript of the speech which was prepared by somebody
else, and which he in turn failed to verify for errors. However, he denies having intended to mislead the
COMELEC with the inclusion of this statement, but instead submits that the word Benhur was derived
from the succeeding pronouncement of Abalos, Sr., not because he is my son, which may in turn be
inferred to refer to private respondent, who was a mayoralty candidate at the time.
[24]

We find no grave abuse of discretion in the COMELECs finding that Abalos, Sr.s controversial
statement, effectively reduced to this:
Your President, together with Lito Motivo, walang tigil yan kakapunta sa akin at not because he is my
son siya ang nakikipag-usap sa kanila and came up with a beautiful compromise. xxx
was seriously insufficient and vague to prove violation of Section 68 of the Omnibus Election Code. The
burden of proving that private respondent indirectly influenced the public school teachers of Mandaluyong
City, through his father, Abalos, Sr., was a burden that petitioner failed to meet.
Neither is this burden overcome by the argument that private respondent, for himself, had no
evidence to rebut petitioners allegations, since the burden of proving factual claims rests on the party
raising them.
[25]
Besides, it is not true that private respondent gave only denials and did not present any
evidence to his defense, or to offer an explanation for his fathers actions, which were assailed as having
29

been influenced by him. Private respondent presented in evidence a certified true copy of Joint Circular
No. 1, series of 1998,
[26]
issued by the Department of Education, Culture and Sports, Department of Budget
and Management and Department of Interior and Local Government, which authorized the payment of
allowances of public school teachers chargeable to local government funds.
[27]
The Joint Circular provided
the basis for private respondents argument that the disbursement of funds by then mayor Abalos, Sr. was
valid as having been made pursuant to administrative circular, and was not an unlawful attempt made in
conspiracy with private respondent to secure the latters victory in the elections.
In fine, we find no grave abuse of discretion in the COMELECs decision to dismiss the petition for
disqualification. The conclusion that petitioners evidence is insufficient to support the charge of violation
of Section 68 of the Omnibus Election Code was arrived at only after a careful scrutiny of the evidence at
hand, especially of the videotapes of petitioner. This is clearly evident from the discussion of the COMELEC
First Division, in the Resolution dated July 2, 1998, which quoted extensively from the pleadings and
evidence of petitioners, and provided adequate explanation for why it considered petitioners evidence
insufficient and unconvincing.
Clearly, where there is no proof of grave abuse of discretion, arbitrariness, fraud or error of law in the
questioned Resolutions, the Court may not review the factual findings of COMELEC, nor substitute its own
findings on the sufficiency of evidence.
[28]

Finally, the foregoing conclusion is without prejudice to the election protest and election offense cases
involving the same parties pending with public respondent COMELEC.
WHEREFORE, the petition is DISMISSED. The assailed COMELEC Resolutions dated July 2, 1998
and December 1, 1998, dismissing the petition for insufficiency of evidence and lack of merit, and affirming
the proclamation of private respondent Benjamin Abalos, Jr. as duly elected mayor of Mandaluyong City,
are hereby AFFIRMED. No costs.
SO ORDERED.




















30

Republic of the Philippines
Supreme Court
Manila

EN BANC

ATTY. REYNANTE B. ORCEO,
Petitioner,








- versus -









COMMISSION ON ELECTIONS,
Respondent.
G.R. No. 190779

Present:

PUNO, C.J.,
*

CARPIO,
**

CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.

Promulgated:
March 26, 2010
x---- ------------------------------------------------------------------------------------x

D E C I S I O N


PERALTA, J.:

This is a petition for certiorari
[1]
questioning the validity of Resolution No. 8714 insofar as it
provides that the term firearm includes airsoft guns and their replicas/imitations, which results in their
coverage by the gun ban during the election period this year.
Resolution No. 8714 is entitled Rules and Regulations on the: (1) Bearing, Carrying or
Transporting of Firearms or other Deadly Weapons; and (2) Employment, Availment or Engagement of the
Services of Security Personnel or Bodyguards, During the Election Period for the May 10, 2010 National and
Local Elections. The Resolution was promulgated by the Commission on Elections (COMELEC)
on December 16, 2009, and took effect on December 25, 2009.

Resolution No. 8714 contains the implementing rules and regulations of Sec. 32 (Who May Bear
Firearms) and Section 33 (Security Personnel and Bodyguards) of Republic Act (R.A.) No. 7166, entitled An
Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing
Appropriations Therefor, and for Other Purposes.

Section 1 of Resolution No. 8714 prohibits an unauthorized person from bearing, carrying or
transporting firearms or other deadly weapons in public places, including all public buildings, streets, parks,
and private vehicles or public conveyances, even if licensed to possess or carry the same, during the
election period.

Under Section 2 (b) of Resolution No. 8714, the term firearm includes airgun, airsoft guns, and
their replica/imitation in whatever form that can cause an ordinary person to believe that they are
real. Hence, airsoft guns and their replicas/imitations are included in the gun ban during the election
period from January 10, 2010 to June 9, 2010.

31

Petitioner claims that he is a real party-in-interest, because he has been playing airsoft since the
year 2000. The continuing implementation of Resolution No. 8714 will put him in danger of sustaining
direct injury or make him liable for an election offense
[2]
if caught in possession of an airsoft gun and its
replica/imitation in going to and from the game site and playing the sport during the election period.

Petitioner contends that the COMELEC gravely abused its discretion amounting to lack or excess of
jurisdiction in including airsoft guns and their replicas/imitations in the definition of firearm in
Resolution No. 8714, since there is nothing in R.A. No. 7166 that mentions airsoft guns and their
replicas/imitations. He asserts that the intendment of R.A. No. 7166 is that the term firearm refers to
real firearm in its common and ordinary usage. In support of this assertion, he cites the Senate
deliberation on the bill,
[3]
which later became R.A. No. 7166, where it was clarified that an unauthorized
person caught carrying a firearm during the election period is guilty of an election offense under Section
261 (q) of the Omnibus Election Code.

Further, petitioner alleges that there is no law that covers airsoft guns. By including airsoft guns
in the definition of firearm, Resolution No. 8714, in effect, criminalizes the sport, since the possession of
an airsoft gun or its replica/imitation is now an election offense, although there is still no law that governs
the use thereof.

Petitioner prays that the Court render a decision as follows: (1) Annulling Resolution No. 8714
insofar as it includes airsoft guns and their replicas/imitations within the meaning of firearm, and
declaring the Resolution as invalid; (2) ordering the COMELEC to desist from further implementing
Resolution No. 8714 insofar as airsoft guns and their replicas/imitations are concerned; (3) ordering the
COMELEC to amend Resolution No. 8714 by removing airsoft guns and their replicas/imitations within the
meaning of firearm; and (4) ordering the COMELEC to issue a Resolution directing the Armed Forces of
the Philippines, Philippine National Police and other law enforcement agencies deputized by the COMELEC
to desist from further enforcing Resolution No. 8714 insofar as airsoft guns and their replicas/imitations are
concerned.

The main issue is whether or not the COMELEC gravely abused its discretion in including airsoft
guns and their replicas/imitations in the term firearm in Section 2 (b) of R.A. No. 8714.

The Court finds that the COMELEC did not commit grave abuse of discretion in this case.

R.A. No. 7166 (An Act Providing for Synchronized National and Local Elections and for Electoral
Reforms, Authorizing Appropriations Therefor, and for Other Purposes)
[4]
provides:

SEC. 32. Who May Bear Firearms. During the election period, no person shall
bear, carry or transport firearms or other deadly weapons in public places, including any
building, street, park, private vehicle or public conveyance, even if licensed to possess or
carry the same, unless authorized in writing by the Commission. The issuance of firearms
licenses shall be suspended during the election period.

Only regular members or officers of the Philippine National Police, the Armed Forces
of the Philippines and other law enforcement agencies of the Government who are duly
deputized in writing by the Commission for election duty may be authorized to carry and
possess firearms during the election period: Provided, That, when in the possession of
firearms, the deputized law enforcement officer must be: (a) in full uniform showing clearly
and legibly his name, rank and serial number, which shall remain visible at all times; and (b)
in the actual performance of his election duty in the specific area designated by the
Commission.

x x x x

SEC. 35. Rules and Regulations. The Commission shall issue rules and
regulations to implement this Act. Said rules shall be published in at least two (2)
national newspapers of general circulation.

32

Pursuant to Section 35 of R.A. No. 7166, the COMELEC promulgated Resolution No. 8714,
which contains the implementing rules and regulations of Sections 32 and 33 of R.A. No. 7166. The
pertinent portion of the Resolution states:

NOW, THEREFORE, pursuant to the powers vested in it by the Constitution of the
Republic of the Philippines, the Omnibus Election Code (B.P. Blg. 881), Republic Acts Nos.
6646, 7166, 8189, 8436, 9189, 9369 and other elections laws, the Commission
RESOLVED, as it hereby RESOLVES, to promulgate the following rules and regulations to
implement Sections 32 and 33 of Republic Act No. 7166 in connection with the conduct of
the May 10, 2010 national and local elections:

SECTION 1. General Guiding Principles. During the election period: (a) no
person shall bear, carry or transport firearms or other deadly weapons in
public places, including all public buildings, streets, parks, and private vehicles
or public conveyances, even if licensed to possess or carry the same; and (b) no
candidate for public office, including incumbent public officers seeking election to any
public office, shall employ, avail himself of or engage the services of security personnel or
bodyguards, whether or not such bodyguards are regular members or officers of the
Philippine National Police (PNP), the Armed Forces of the Philippines (AFP) or other law
enforcement agency of the Government.

The transport of firearms of those who are engaged in the manufacture,
importation, exportation, purchase, sale of firearms, explosives and their spare parts or
those involving the transportation of firearms, explosives and their spare parts, may, with
prior notice to the Commission, be authorized by the Director General of the PNP provided
that the firearms, explosives and their spare parts are immediately transported to the
Firearms and Explosives Division, CSG, PNP.

SEC. 2. Definition of Terms. As used in this Resolution:

(a) Election Period refers to the election period prescribed in Comelec
Resolution No. 8646 dated 14 July 2009 which is from 10 January 2010 to 09 June 2010;

(b) Firearm shall refer to the "firearm" as defined in
existing laws, rules and regulations. The term also includes
airgun,airsoft guns, and their replica/imitation in whatever form that can
cause an ordinary person to believe that they are real;

(c) Deadly weapon includes bladed instrument, handgrenades or other
explosives, except pyrotechnics.
x x x x

SEC. 4. Who May Bear Firearms. Only the following persons who are in the
regular plantilla of the PNP or AFP or other law enforcement agencies are authorized to
bear, carry or transport firearms or other deadly weapons during the election period:

(a) Regular member or officer of the PNP, the AFP and other law enforcement
agencies of the Government, provided that when in the possession of
firearm, he is: (1) in the regular plantilla of the said agencies and is receiving
regular compensation for the services rendered in said agencies; and (2) in
the agency-prescribed uniform showing clearly and legibly his name, rank
and serial number or, in case rank and serial number are inapplicable, his
agency-issued identification card showing clearly his name and position,
which identification card shall remain visible at all times; (3) duly licensed to
possess firearm and to carry the same outside of residence by means of a
valid mission order or letter order; and (4) in the actual performance of
official law enforcement duty, or in going to or returning from his
residence/barracks or official station.

33

x x x x

(b) Member of privately owned or operated security, investigative, protective or
intelligence agencies duly authorized by the PNP, provided that when in the
possession of firearm, he is: (1) in the agency-prescribed uniform with his
agency-issued identification card prominently displayed and visible at all
times, showing clearly his name and position; and (2) in the actual
performance of duty at his specified place/area of duty.

x x x x

SEC. 8. Enforcement. Any person who, not wearing the authorized uniform
mentioned herein, bears, carries or transports firearm or other deadly weapon, shall be
presumed unauthorized to carry firearms and subject to arrest.
[5]



Petitioner contends that under R.A. No. 7166, the term firearm connotes real firearm. Moreover,
R.A. No. 7166 does not mention airsoft guns and their replicas/imitations. Hence, its implementing rules
and regulations contained in Resolution No. 8714 should not include airsoft guns and their
replicas/imitations in the definition of the term firearm.

The Court is not persuaded.
Holy Spirit Homeowners Association, Inc. v. Defensor
[6]
held:

Where a rule or regulation has a provision not expressly stated or contained in
the statute being implemented, that provision does not necessarily contradict the statute.
A legislative rule is in the nature of subordinate legislation, designed to implement a
primary legislation by providing the details thereof. All that is required is that the
regulation should be germane to the objects and purposes of the law; that the
regulation be not in contradiction to, but in conformity with, the standards
prescribed by the law.
[7]



Evidently, the COMELEC had the authority to promulgate Resolution No. 8714 pursuant to Section
35 of R.A. No. 7166. It was granted the power to issue the implementing rules and regulations of Sections
32 and 33 of R.A. No. 7166. Under this broad power, the COMELEC was mandated to provide the details
of who may bear, carry or transport firearms or other deadly weapons, as well as the definition of
firearms, among others. These details are left to the discretion of the COMELEC, which is a constitutional
body that possesses special knowledge and expertise on election matters, with the objective of ensuring
the holding of free, orderly, honest, peaceful and credible elections.

In its Comment,
[8]
the COMELEC, represented by the Office of the Solicitor General, states that the
COMELECs intent in the inclusion of airsoft guns in the term firearm and their resultant coverage by the
election gun ban is to avoid the possible use of recreational guns in sowing fear, intimidation or terror
during the election period. An ordinary citizen may not be able to distinguish between a real gun and an
airsoft gun. It is fear subverting the will of a voter, whether brought about by the use of a real gun or a
recreational gun, which is sought to be averted. Ultimately, the objective is to ensure the holding of free,
orderly, honest, peaceful and credible elections this year.
Contrary to petitioners allegation, there is a regulation that governs the possession and carriage
of airsoft rifles/pistols, namely, Philippine National Police (PNP) Circular No. 11 dated December 4, 2007,
entitled Revised Rules and Regulations Governing the Manufacture, Importation, Exportation, Sale,
Possession, Carrying of Airsoft Rifles/Pistols and Operation of Airsoft Game Sites and Airsoft Teams. The
Circular defines an airsoft gun as follows:

Airsoft Rifle/Pistol x x x includes battery operated, spring and gas type powered
rifles/pistols which discharge plastic or rubber pellets only as bullets or ammunition. This
differs from replica as the latter does not fire plastic or rubber pellet.


34

PNP Circular No. 11 classifies the airsoft rifle/pistol as a special type of air gun, which is restricted
in its use only to sporting activities, such as war game simulation.
[9]
Any person who desires to possess an
airsoft rifle/pistol needs a license from the PNP, and he shall file his application in accordance with PNP
Standard Operating Procedure No. 13, which prescribes the procedure to be followed in the licensing of
firearms.
[10]
The minimum age limit of the applicant is 18 years old.
[11]
The Circular also requires a Permit
to Transport an airsoft rifle/pistol from the place of residence to any game or exhibition site.
[12]


A license to possess an airsoft gun, just like ordinary licenses in other regulated fields, does not
confer an absolute right, but only a personal privilege to be exercised under existing restrictions, and such
as may thereafter be reasonably imposed.
[13]


The inclusion of airsoft guns and airguns in the term firearm in Resolution No. 8714 for purposes
of the gun ban during the election period is a reasonable restriction, the objective of which is to ensure the
holding of free, orderly, honest, peaceful and credible elections.

However, the Court excludes the replicas and imitations of airsoft guns and airguns from the term
firearm under Resolution No. 8714, because they are not subject to any regulation, unlike airsoft guns.

Petitioner further contends that Resolution No. 8714 is not in accordance with the State policies in
these constitutional provisions:

Art. II, Sec. 12. The State recognizes the sanctity of family life and shall protect
and strengthen the family as a basic autonomous social institution. x x x

Art. XV, Sec. 1. The State recognizes the Filipino family as the foundation of the
nation. Accordingly, it shall strengthen its solidarity and actively promote its total
development.

Art. II, Sec. 17. The State shall give priority to x x x sports to foster patriotism
and nationalism, accelerate social progress, and promote total human liberation and
development.


Petitioner asserts that playing airsoft provides bonding moments among family members. Families
are entitled to protection by the society and the State under the Universal Declaration of Human
Rights. They are free to choose and enjoy their recreational activities. These liberties, petitioner contends,
cannot be abridged by the COMELEC.

In its Comment, the COMELEC, through the Solicitor General, states that it adheres to the
aforementioned state policies, but even constitutional freedoms are not absolute, and they may be
abridged to some extent to serve appropriate and important interests.

As a long-time player of the airsoft sport, it is presumed that petitioner has a license to possess an
airsoft gun. As a lawyer, petitioner is aware that
a licensee of an airsoft gun is subject to the restrictions imposed upon him by PNP Circular No. 11 and
other valid restrictions, such as Resolution No. 8714. These restrictions exist in spite of the
aforementioned State policies, which do not directly uphold a licensees absolute right to possess or carry
an airsoft gun under any circumstance.

Petitioners allegation of grave abuse of discretion by respondent COMELEC implies such capricious
and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, the exercise
of power in an arbitrary manner by reason of passion, prejudice or personal hostility, and it must be so
patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty
enjoined or to act at all in contemplation of law.
[14]


The Court holds that the COMELEC did not gravely abuse its discretion in including airsoft guns
and airguns in the term firearm in Resolution No. 8714 for purposes of the gun ban during the election
period, with the apparent objective of ensuring free, honest, peaceful and credible elections this
year. However, the replicas and imitations of airsoft guns and airguns are excluded from the term
firearm in Resolution No. 8714.
35


WHEREFORE, the petition is PARTLY GRANTED insofar as the exclusion of replicas and
imitations of airsoft guns from the term firearm is concerned. Replicas and imitations of airsoft guns
and airguns are hereby declared excluded from the term firearm in Resolution No. 8714. The petition
is DISMISSED in regard to the exclusion of airsoft guns from the term firearm in Resolution No.
8714. Airsoft guns and airguns are covered by the gun ban during the election period.

No costs.
SO ORDERED.