EN BANC

[G.R. No. 189034. January 11, 2010.]

CELESTINO A. MARTINEZ III, petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL AND BENHUR L. SALIMBANGON, respondents.

DECISION

VILLARAMA, JR., J p:

This petition for certiorari under Rule 65 seeks to nullify the Decision 1 dated May 28, 2009 of the House of Representatives Electoral Tribunal in HRET Case No. 07-035 dismissing the election protest and declaring private respondent as the duly elected Representative of the Fourth Legislative District of Cebu, and the Resolution 2 dated July 30, 2009 denying petitioner's motion for reconsideration thereof.

The Facts

In the May 14, 2007 elections, petitioner Martinez and private respondent Salimbangon were among the candidates for Representative in the Fourth Legislative District of Cebu Province. On March 29, 2007, Edilito C. Martinez, a resident of Barangay Tambongon, Daan-Bantayan, Cebu, filed his certificate of candidacy for the same position.

On April 3, 2007, Martinez filed a petition to declare Edilito C. Martinez a nuisance candidate.  3 However, the Commission on Elections Second Division issued its Resolution declaring Edilito C. Martinez a nuisance candidate only on June 12, 2007 or almost one (1) month after the elections.

On July 9, 2007, Salimbangon was proclaimed winner in the congressional elections for the Fourth Legislative District of Cebu on the basis of official results showing that he garnered sixty-seven thousand two hundred seventy-seven (67,277) votes as against Martinez who garnered sixty-seven thousand one hundred seventy-three (67,173) votes, or a difference of one hundred four (104) votes.

Martinez filed an Election Protest Ad Cautelam on July 18, 2007 and on July 26, 2007, the HRET granted his motion to convert the same into a Regular Protest of all one thousand one hundred twenty-nine (1,129) precincts of the Fourth Legislative District of Cebu. cCSTHA

The election protest is based on three hundred (300) ballots more or less with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative which the Board of Election Inspectors (BEI) did not count for Martinez on the ground that there was another congressional candidate (Edilito C. Martinez) who had the same surname. Martinez further alleged that he lost several thousand votes as a result of incorrect appreciation of ballots not counted in his favor while clearly marked ballots, groups of ballots which appeared to have been prepared by one (1) person, individual ballots which appeared to have been prepared by two (2) or more persons, and fake and unofficial ballots were read and counted in favor of Salimbangon. He also claimed that the votes reflected in the election returns were unlawfully increased in favor of Salimbangon while votes in his favor were unlawfully decreased. 4

Salimbangon filed his Answer with Counter-Protest stating that the Minutes of Voting (MOV) inside the ballot boxes in all the protested precincts contain no recorded objections regarding straying of votes claimed by Martinez, and that it was very seldom, if at all, that there were ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative. He counter-protested 954 precincts on grounds of coercion/intimidation and duress; massive vote-buying; "lansadera"; misreading/miscounting/misappreciation of votes; and other electoral anomalies and irregularities.

During the revision, ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative were not counted and temporarily classified as stray. These comprise majority of the 9,831 stray ballots claimed by Martinez. 5

HRET Ruling

In its Decision dated May 28, 2009, the HRET resolved each of the claims and objections respectively raised by protestant and protestee applying the rules for appreciation of ballots. The Tribunal recognized as most crucial the issue of whether or not ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative should be counted in favor of Martinez. Thus, the election protest "will rise or fall on how the Tribunal [appreciates said] ballots." 6

Ruling on the issue, the HRET sustained the BEI in considering the ballots as stray in accordance with Sec. 211 (1) of the Omnibus Election Code which provides:

"Where only the first name of a candidate or only his surname is written, the vote for such candidate is valid, if there is no other candidate with the same first name or surname for the same office." 7 [EMPHASIS SUPPLIED.] cHCSDa

Since the name of Edilito C. Martinez was still included in the official list of candidates on election day (May 14, 2007), the HRET held that five thousand four hundred one (5,401) ballots with "MARTINEZ" or "C. MARTINEZ" only written on the line for Representative were properly denied on the ground that there was no way of determining the real intention of the voter. These ballots were included in the 7,544 ballots denied as votes for Martinez in 961 precincts. 8

Commiserating with Martinez on the delayed resolution of SPA Case No. 07-133 (PES), the HRET stated:

"We sympathize to (sic) the protestant that he is the victim of the inaction of the Comelec in failing to decide the petition to disqualify Edilito C. Martinez as nuisance candidate on or before the May 14, 2007 elections. After all, it appears that the latter did not even lift a finger to oppose the petition for his declaration as nuisance candidate and that per its decision rendered only twenty-nine (29) days after the May 14, 2007 elections, Edilito C. Martinez was indeed a nuisance candidate.

"As it is, the delay committed by the Comelec in deciding the petition to disqualify Edilito C. Martinez as nuisance candidate on or before May 14, 2007 election did not only cause injustice to herein protestant but worst, had resulted to (sic) the disenfranchisement of five thousand four hundred one (5,401) electorates whose votes could have changed the number of votes garnered by the parties herein if not changed altogether the outcome of the election itself." 9

The final overall results of recount and appreciation of ballots, election documents and other evidence in the entire 1,129 precincts as determined by the HRET are as follows : 10

Overall Fourth District of Cebu VotesPROTESTANT PROTESTEE1] Votes per physical count * in 961 57,758 57,132precincts where there was ballot appreciation2] Votes in 12 precincts ** without ballots 998 660found during revision (based on electionreturns)3] Votes per election returns in 156 9,937 7,815precincts in which several spurious ballotswere placed after elections, countingand/or canvassing of votes68,693 65,607Less: Objected ballots rejected *** 4,333 860Add: Claimed ballots admitted *** 2,287 2,348Unclaimed ballots admitted *** 8 11Restored Ballots 2Total Votes in the Contested 66,655 67,108Precincts After Appreciation ofEvidence TDAcCaPLURALITY OF PROTESTEE'S 453VOTES

On the basis of the foregoing, the HRET dismissed the election protest, affirmed the proclamation of Salimbangon and declared him to be the duly elected Representative of the Fourth Legislative District of Cebu, having won by a plurality margin of 453 votes.

Martinez moved for reconsideration of the Decision, but the HRET denied it by Resolution dated July 30, 2009. 11

The Petition

Petitioner alleges that the HRET gravely abused its discretion when it failed to credit the "MARTINEZ" or "C. MARTINEZ" votes in his favor despite the finality of the COMELEC resolution declaring Edilito C. Martinez a nuisance candidate. Petitioner argues that the Decision disenfranchised 5,401 voters when it ruled that said votes cannot be counted as votes for him since "there is no way of determining the real intention of the voter", in utter disregard of the mandate of Art. VIII, Sec. 14 of the Constitution. He maintains that there is no clear and good reason to justify the rejection of those 5,401 ballots, and points out that at the time private respondent was proclaimed by the Board of Canvassers, only 104 votes separated private respondent from him (private respondent was credited with 67,277 votes as against 67,173 votes of petitioner, while nuisance candidate Edilito C. Martinez got a measly 363 votes.) 12

Petitioner further alleges that the HRET invalidated ballots for him without stating the legal and factual bases therefor, and on grounds other than the objections raised by private respondent. He contends that the HRET erred in concluding that the ruling in Bautista v. Commission on Elections 13 cannot be applied in view of circumstances which supposedly distinguish the present case from Bautista. Finally, petitioner cites the dissenting opinion of the Honorable Associate Justice Antonio Eduardo B. Nachura who disagreed with the majority ruling and posited that the final declaration by COMELEC that Edilito C. Martinez was a nuisance candidate and the cancellation of his certificate of candidacy should be deemed effective as of the day of the election. 14

In his Comment, private respondent assails the apparent desire of petitioner for this Court to review the physical appreciation of ballots conducted by the HRET when he assigned as issues the alleged erroneous invalidation by the HRET of petitioner's ballots which were ruled as written by two (2) persons, and when he even appreciated ballots that were declared by the HRET as marked ballots. Private respondent details the mostly post-election anomalies and irregularities, particularly in Bogo City, perpetrated by the petitioner as found by the HRET such as tampering of election returns and statement of votes and vote padding/tampering.

As to the "MARTINEZ" and "C. MARTINEZ" ballots, private respondent asserts that the HRET correctly refused to credit petitioner with these votes, stressing that there were admittedly three (3) candidates for the position of Representative for the Fourth Legislative District of Cebu as of May 14, 2007. Not a single voter in the district knew of any nuisance congressional candidate on election day. Private respondent argues that it would be illogical and most unfair to count the said ballots in favor of petitioner as it is erroneous to base the voter's intent on the supervening circumstance which was inexistent on the date the ballot was accomplished and cast. The HRET likewise did not err in holding that the Bautista ruling is inapplicable, there being no announced declaration yet of one (1) of the candidates as nuisance candidate when the voters cast their ballots on election day. EcHaAC 

The Issues

What then is the legal effect of declaring a nuisance candidate as such in a final judgment after the elections? Should ballots containing only the similar surname of two (2) candidates be considered as stray votes or counted in favor of the bona fide candidate?

Our Ruling

The Court finds the petition meritorious.

Section 69 of the Omnibus Election Code provides:

"Section 69. Nuisance candidates. — The Commission may motu proprio or upon a verified petition of an interested party, refuse to give due course to or cancel a certificate of candidacy if it is shown that said certificate has been filed to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate."

Republic Act No. 6646, otherwise known as "The Electoral Reforms Law of 1987" provides in Section 5 thereof:

"SEC. 5. Procedure in Cases of Nuisance Candidates. —

(a) A verified petition to declare a duly registered candidate as a nuisance candidate under Section 69 of Batas Pambansa Blg. 881 shall be filed personally or through duly authorized representative with the Commission by any registered candidate for the same office within five (5) days from the last day for the filing of certificates of candidacy. Filing by mail shall not be allowed.

"(b) Within three (3) days from the filing of the petition, the Commission shall issue summons to the respondent candidate together with a copy of the petition and its enclosures, if any.

"(c) The respondent shall be given three (3) days from receipt of the summons within which to file his verified answer (not a motion to dismiss) to the petition, serving copy thereof upon the petitioner. Grounds for a motion to dismiss may be raised as affirmative defenses.

"(d) The Commission may designate any of its officials who are lawyers to hear the case and receive evidence. The proceeding shall be summary in nature. In lieu of oral testimonies, the parties may be required to submit position papers together with affidavits or counter-affidavits and other documentary evidence. The hearing officer shall immediately submit to the Commission his findings, reports, and recommendations within five (5) days from the completion of such submission of evidence. The Commission shall render its decision within five (5) days from receipt thereof. acITSD

"(e) The decision, order, or ruling of the Commission shall, after five (5) days from receipt of a copy thereof by the parties, be final and executory unless stayed by the Supreme Court.

"(f) The Commission shall within twenty-four hours, through the fastest available means, disseminate its decision or the decision of the Supreme Court to the city or municipal election registrars, boards of election inspectors and the general public in the political subdivision concerned." [EMPHASIS SUPPLIED.]

By their very nature, proceedings in cases of nuisance candidates require prompt disposition. The declaration of a duly registered candidate as nuisance candidate results in the cancellation of his certificate of candidacy. The law mandates the Commission and the courts to give priority to cases of disqualification to the end that a final decision shall be rendered not later than seven days before the election in which the disqualification is sought.  15 In many instances, however, proceedings against nuisance candidates remained pending and undecided until election day and even after canvassing of votes had been completed.

Here, petitioner sought to declare Edilito C. Martinez as a nuisance candidate immediately after the latter filed his certificate of candidacy as an independent candidate and long before the May 14, 2007 elections. Petitioner averred that Edilito C. Martinez who was a driver of a motorcycle for hire, locally known as "habal-habal", did not own any real property in his municipality, had not filed his income tax return for the past years, and being an independent candidate did not have any political machinery to propel his candidacy nor did he have political supporters to help him in his campaign. Petitioner claimed that Edilito C. Martinez after the filing of his certificate of candidacy, was never heard of again and neither did he start an electoral campaign. Given such lack of bona fide intention of Edilito C. Martinez to run for the office for which he filed a certificate of candidacy, petitioner contended that his candidacy would just cause confusion among the voters by the similarity of their surnames, considering that petitioner was undeniably the frontrunner in the congressional district in the Fourth Legislative District of Cebu as his mother, Rep. Clavel A. Martinez, was the incumbent Representative of the district. 16

The COMELEC's Second Division granted the petition and declared Edilito C. Martinez as a nuisance candidate. It noted that the failure of said candidate to answer and deny the accusations against him clearly disclosed the fact that he had no bona fide intention to run for public office. Thus, it concluded that his only purpose for filing his certificate of candidacy was to put the election process into mockery and cause confusion among the voters by the similarity of his surname with that of petitioner. 17

No motion for reconsideration was filed by Edilito C. Martinez and neither did he appeal before this Court the resolution declaring him a nuisance candidate. Said decision had thus become final and executory after five (5) days from its promulgation in accordance with the COMELEC Rules of Procedure. 18 But having come too late, the decision was an empty victory for petitioner who lost to private respondent by a slim margin of 104 votes. In his election protest,

petitioner sought to have ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative counted in his favor. The HRET, however, considered such ballots numbering 5,401 as stray and rejected petitioner's argument that the ruling in Bautista v. Comelec (supra) is applicable in this case.

Bautista involves a mayoralty candidate (Cipriano "Efren" Bautista) during the May 11, 1998 elections who filed a petition to declare as nuisance candidate Edwin "Efren" Bautista, who filed a certificate of candidacy for the same position at the last minute. The COMELEC granted the petition, declared Edwin Bautista a nuisance candidate and ordered the cancellation of his certificate of candidacy. Consequently, Edwin Bautista's name was not included in the official list of candidates for the position of mayor of Navotas City and copies of the list were distributed to the boards of election inspectors (BEI). On May 8, 1998, Edwin filed a motion for reconsideration and as a result, the Election Officer of Navotas issued a directive to the BEI to include the name of Edwin Bautista in the certified list of candidates, only to recall said order in the afternoon. In view of the conflicting directives, counsel for petitioner requested the COMELEC that instructions be given to the BEI to tally separately the votes for "EFREN BAUTISTA", "EFREN", "E. BAUTISTA" and "BAUTISTA." HDCAaS

On May 13, 1998, the COMELEC denied Edwin Bautista's motion for reconsideration. When the canvass of the election returns was commenced, the Municipal Board of Canvassers refused to canvass as part of the valid votes of petitioner the separate tallies of ballots on which were written "EFREN BAUTISTA," "EFREN," "E. BAUTISTA" and "BAUTISTA." Petitioner then filed with the COMELEC a petition to declare illegal the proceedings of the Municipal Board of Canvassers. Meanwhile Edwin Bautista filed a petition for certiorari with this Court assailing the actions of COMELEC declaring him a nuisance candidate and ordering the cancellation of his certificate of candidacy. The Court dismissed said petition finding no grave abuse of discretion committed by the COMELEC and subsequently also denied with finality the motion for reconsideration filed by Edwin Bautista.

As to the petition to declare as illegal the proceedings of the Municipal Board of Canvassers for its refusal to include the stray votes in the separate tally sheet, the COMELEC dismissed the same, citing Sec. 211 (4) 19 of the Omnibus Election Code. Petitioner Bautista elevated the case to the Supreme Court which ruled in his favor, thus:

"At the outset and initially setting aside all the ramifications of the substantive issue of the instant petition, the primordial concern of the Court is to verify whether or not on the day of the election, there was only one 'Efren Bautista' as a validly registered candidate as far as the electorate was concerned.

"xxx xxx xxx

"Edwin Bautista moved for reconsideration on May 8, 1998. Unfortunately, said motion was not resolved as of election day. Technically, the April 30, 1998 decision was not yet final as of May 11, 1998, and this technicality created serious problems on election day.

"xxx xxx xxx

"An analysis of the foregoing incidents shows that the separate tallies were made to remedy any prejudice that may be caused by the inclusion of a potential nuisance candidate in the Navotas mayoralty race. Such inclusion was brought about by technicality, specifically Edwin Bautista's filing of a motion for reconsideration, which prevented the April 30, 1998 resolution disqualifying him from becoming final at that time.

"Ideally, the matter should have been finally resolved prior to election day. Its pendency on election day exposed petitioner to the evils brought about by the inclusion of a then potential, later shown in reality to be nuisance candidate. We have ruled that a nuisance candidate is one whose certificate of candidacy is presented and filed to cause confusion among the electorate by the similarity of the names of the registered candidate or by other names which demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate (Fernandez vs. Fernandez, 36 SCRA 1 [1970]). TAIaHE 

"It must be emphasized that the instant case involves a ground for disqualification which clearly affects the voters' will and causes confusion that frustrates the same. This is precisely what election laws are trying to protect. They give effect to, rather than frustrate, the will of the voter. Thus, extreme caution should be observed before any ballot is invalidated. Further, in the appreciation of ballots, doubts are resolved in favor of their validity. (Silverio vs. Castro, 19 SCRA 521 [1967]).

"xxx xxx xxx

"As discussed in the COMELEC's April 30, 1998 decision, in accordance with Section 69, Edwin Bautista was found to be a nuisance candidate. First and foremost, he was running under the name of Edwin 'Efren' Bautista, when it had been established that he was really known as 'Boboy' or 'Boboy Tarugo.' Second, the following circumstances saliently demonstrate that he had no bona fide intention of running for the office for which he filed his certificate of candidacy: He is said to be engaged in a 'buy and sell' business, but he has no license therefor. He declared that he had a monthly income of P10,000.00 but with expenses totalling P9,000.00. He does not own any real property. He did not file his income tax return for the years 1995 and 1996 and when asked why, he said he did not have any net income and that he was only earning enough to defray household expenses. He even violated COMELEC rules since he failed to submit the names of individuals who paid for his campaign materials as well as the printing press he dealt with. He did not have a political line-up and had no funds to support his campaign expenses. He merely depended on friends whose names he did not submit to the COMELEC. And as straightforwardly found by the COMELEC, he 'has not demonstrated any accomplishment/achievement in his twenty-six (26) years of existence as a person that would surely attract the electorate to choose him as their representative in government.'

"In contrast, it was shown that petitioner had previously held under his name Cipriano and appellation, 'Efren' Bautista, various elective positions, namely: Barangay Captain of Navotas in 1962, Municipal Councilor of Navotas in 1970, and Vice-Mayor of Navotas in 1980. He is a duly registered Naval Architect and Marine Engineer, and a member of various civic organizations such as the Rotary Club of Navotas and the Philippine Jaycees.

"It seems obvious to us that the votes separately tallied are not really stray votes. Then COMELEC Chairman Bernardo P. Pardo himself, now a respected member of the Court, in his May 14, 1998 Memorandum, allowed the segregation of the votes for "Bautista," "Efren," and "Efren Bautista," and "E. Bautista" into a separate improvised tally, for the purpose of later counting the votes. In fine, the COMELEC itself validated the separate tallies since they were meant to be used in the canvassing later on to the actual number of votes cast. These separate tallies actually made the will of the electorate determinable despite the apparent confusion caused by a potential nuisance candidate. What remained unsaid by the COMELEC Chairman was the fact that as early as May 13, 1998, the COMELEC had already spoken and stated its final position on the issue of whether or not Edwin Bautista is a nuisance candidate. It had already denied Edwin's motion for reconsideration in its May 13, 1998 Order . . .

"xxx xxx xxx

"This important detail only shows that as of May 14, 1998, when Chairman Pardo issued the aforestated Memorandum, Edwin Bautista had already been finally declared as a nuisance candidate by the COMELEC. And when Edwin Bautista elevated the matter to this Court, we upheld such declaration. How then can we consider valid the votes for Edwin Bautista whom we finally ruled as disqualified from the 1998 Navotas mayoralty race? That is like saying one thing and doing another. These are two incompatible acts the contrariety and inconsistency of which are all too obvious." 20 [EMPHASIS SUPPLIED.] caADSE

Petitioner now invokes this Court's pronouncement in Bautista to the effect that votes indicating only the surname of two (2) candidates should not be considered as stray but counted in favor of the bona fide candidate after the other candidate with a similar surname was declared a nuisance candidate. In refusing to apply the ruling in  Bautista, the HRET said that the factual circumstances in said case are different, thus:

"Protestant strongly asserts that the 'MARTINEZ' or 'C. MARTINEZ' only votes be counted in his favor invoking the ruling in the case of Bautista vs. Comelec, G.R. No. 133840, November 13, 1998 (298 SCRA 480) where the Supreme Court held that the final and conclusive ruling on the declaration of a nuisance candidate retroacts on the day of the election.

"We disagree.

"While the Bautista vs. Comelec case also involves a candidate declared as nuisance by the Comelec, the case herein is not on all fours with it. . . .

"xxx xxx xxx

"It is clear from the foregoing facts of the Bautista case that the nuisance candidate, Edwin Bautista, was declared as such on April 30, 1998, eleven (11) days before the May 11, 1998 elections. Although the decision was not yet final on Election Day because of a Motion for Reconsideration that Edwin Bautista had filed on May 8, 1998, nevertheless, his name was not included in the list of candidates for the position of Mayor for Navotas. This is not the situation in the present case for Edilito C. Martinez was not yet declared disqualified during the May 14, 2007 elections. There were, therefore, two (2) congressional candidates on the day of the election with "MARTINEZ" as surname, Celestino A. Martinez and Edilito C. Martinez.

"More importantly, in the Bautista case, while the Comelec's decision declaring Edwin Bautista a nuisance candidate had not yet attained finality on election day, May 11, 1998, the voters of Navotas were informed of such disqualification by virtue of newspaper releases and other forms of notification. The voters in said case had constructive as well as actual knowledge of the action of the Comelec delisting Edwin Bautista as a candidate for mayor. This is not so in the present case for Edilito C. Martinez was not yet disqualified as nuisance candidate during the May 14, 2007 elections. There were no newspaper releases and other forms of notification to the voters of the Fourth District of Cebu on or before May 14, 2007 elections that Edilito C. Martinez was disqualified as a nuisance candidate." 21 [EMPHASIS SUPPLIED.]

It is clear that Bautista is anchored on the factual determination that the COMELEC resolution declaring Edwin Bautista a nuisance candidate was already final since his motion for reconsideration was already denied by the Commission when canvassing of the votes started. Hence, the segregated and separately tallied votes containing only the similar first names/nicknames and surnames of the two (2) candidates were considered as not really stray votes. We held that the separate tallies validated by the COMELEC actually made the will of the electorate determinable despite the apparent confusion caused by a nuisance candidate. DSIaAE

In the case at bar, there was no segregation or separate tally of votes for petitioner. Unlike in Bautista, there was simply no opportunity for petitioner to request the segregation and separate tally of expected ballots containing only the surname "MARTINEZ" as the resolution granting his petition was promulgated only a month later. The HRET, while not closing its eyes to the prejudice caused to petitioner by COMELEC's inaction and delay, as well as the disenfranchisement of the 5,401 voters, refused to credit him with those votes on the ground that there was no way of determining the real intention of the voter.

We disagree.

The purpose of an election protest is to ascertain whether the candidate proclaimed by the board of canvassers is the lawful choice of the people. What is sought is the correction of the canvass of votes, which was the basis of proclamation of the winning candidate. Election contests, therefore, involve the adjudication not only of private and pecuniary interests of rival candidates, but also of paramount public interest considering the need to dispel uncertainty over the real choice of the electorate. 22

In controversies pertaining to nuisance candidates as in the case at bar, the law contemplates the likelihood of confusion which the similarity of surnames of two (2) candidates may generate. A nuisance candidate is thus defined as one who, based on the attendant circumstances, has no bona fide intention to run for the office for which the certificate of candidacy has been filed, his sole purpose being the reduction of the votes of a strong candidate, upon the expectation that ballots with only the surname of such candidate will be considered stray and not counted for either of them.

In elections for national positions such as President, Vice-President and Senator, the sheer logistical challenge posed by nuisance candidates gives compelling reason for the Commission to exercise its authority to eliminate nuisance candidates who obviously have no financial capacity or serious intention to mount a nationwide campaign. Thus we explained in Pamatong v. Commission on Elections: 23

"The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who have not evinced a bona fide intention to run for office is easy to divine. The State has a compelling interest to ensure that its electoral exercises are rational, objective, and orderly. Towards this end, the State takes into account the practical considerations in conducting elections. Inevitably, the greater the number of candidates, the greater the opportunities for logistical confusion, not to mention the increased allocation of time and resources in preparation for the election. These practical difficulties should, of course, never exempt the State from the conduct of

a mandated electoral exercise. At the same time, remedial actions should be available to alleviate these logistical hardships, whenever necessary and proper. Ultimately, a disorderly election is not merely a textbook example of inefficiency, but a rot that erodes faith in our democratic institutions. As the United States Supreme Court held: 

[T]here is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization and its candidates on the ballot — the interest, if no other, in avoiding confusion, deception and even frustration of the democratic [process]. TcEaAS

"xxx xxx xxx

"There is a need to limit the number of candidates especially in the case of candidates for national positions because the election process becomes a mockery even if those who cannot clearly wage a national campaign are allowed to run. Their names would have to be printed in the Certified List of Candidates, Voters Information Sheet and the Official Ballots. These would entail additional costs to the government. . . .

"The preparation of ballots is but one aspect that would be affected by allowance of "nuisance candidates" to run in the elections. Our election laws provide various entitlements for candidates for public office, such as watchers in every polling place, watchers in the board of canvassers, or even the receipt of electoral contributions. Moreover, there are election rules and regulations the formulations of which are dependent on the number of candidates in a given election.

"Given these considerations, the ignominious nature of a nuisance candidacy becomes even more galling. The organization of an election with bona fide candidates standing is onerous enough. To add into the mix candidates with no serious intentions or capabilities to run a viable campaign would actually impair the electoral process. . . .

"xxx xxx xxx" 24 [EMPHASIS SUPPLIED]

Given the realities of elections in our country and particularly contests involving local positions, what emerges as the paramount concern in barring nuisance candidates from participating in the electoral exercise is the avoidance of confusion and frustration of the democratic process by preventing a faithful determination of the true will of the electorate, more than the practical considerations mentioned in Pamatong. A report published by the Philippine Center for Investigative Journalism in connection with the May 11, 1998 elections indicated that the tactic of fielding nuisance candidates with the same surnames as leading contenders had become one (1) "dirty trick" practiced in at least 18 parts of the country. The success of this clever scheme by political rivals or operators has been attributed to the last-minute disqualification of nuisance candidates by the Commission, notably its "slow-moving" decision-making. 25

As illustrated in Bautista, the pendency of proceedings against a nuisance candidate on election day inevitably exposes the bona fide candidate to the confusion over the similarity of names that affects the voter's will and frustrates the same. It may be that the factual scenario in Bautista is not exactly the same as in this case, mainly because the Comelec resolution declaring Edwin Bautista a nuisance candidate was issued before and not after the elections, with the electorate having been informed thereof through newspaper releases and other forms of notification on the day of election. Undeniably, however, the adverse effect on the voter's will was similarly present in this case, if not worse, considering the substantial number of ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative — over five thousand — which have been declared as stray votes, the invalidated ballots being more than sufficient to overcome private respondent's lead of only 453 votes after the recount. TcHDIA

Bautista upheld the basic rule that the primordial objective of election laws is to give effect to, rather than frustrate, the will of the voter. The inclusion of nuisance candidates turns the electoral exercise into an uneven playing field where the bona fide candidate is faced with the prospect of having a significant number of votes cast for him invalidated as stray votes by the mere presence of another candidate with a similar surname. Any delay on the part of the COMELEC increases the probability of votes lost in this manner. While political campaigners try to minimize stray votes by advising the electorate to write the full name of their candidate on the ballot, still, election woes brought by nuisance candidates persist.

The Court will not speculate on whether the new automated voting system to be implemented in the May 2010 elections will lessen the possibility of confusion over the names of candidates. What needs to be stressed at this point is the

apparent failure of the HRET to give weight to relevant circumstances that make the will of the electorate determinable,following the precedent in Bautista. These can be gleaned from the findings of the Commission on the personal circumstances of Edilito C. Martinez clearly indicating lack of serious intent to run for the position for which he filed his certificate of candidacy, foremost of which is his sudden absence after such filing. In contrast to petitioner who is a well-known politician, a former municipal mayor for three (3) terms and a strong contender for the position of Representative of the Fourth Legislative District of Cebu (then occupied by his mother), it seems too obvious that Edilito C. Martinez was far from the voters' consciousness as he did not even campaign nor formally launch his candidacy. The HRET likewise failed to mention the total number of votes actually cast for Edilito C. Martinez, which can support petitioner's contention that the "MARTINEZ" and "C. MARTINEZ" votes could not have been intended as votes for Edilito C. Martinez.

Petitioner should not be prejudiced by COMELEC's inefficiency and lethargy. Nor should the absence of objection over straying of votes during the actual counting bar petitioner from raising the issue in his election protest. The evidence clearly shows that Edilito C. Martinez, who did not even bother to file an answer and simply disappeared after filing his certificate of candidacy, was an unknown in politics within the district, a "habal-habal" driver who had neither the financial resources nor political support to sustain his candidacy. The similarity of his surname with that of petitioner was meant to cause confusion among the voters and spoil petitioner's chances of winning the congressional race for the Fourth Legislative District of Cebu. As it turned out, there were thousands of ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative, votes considered stray by the BEI and not counted in favor of petitioner, and which the HRET affirmed to be invalid votes. Had the Commission timely resolved the petition to declare Edilito C. Martinez a nuisance candidate, all such ballots with "MARTINEZ" or "C. MARTINEZ" would have been counted in favor of petitioner and not considered stray, pursuant to COMELEC Resolution No. 4116, 26 issued in relation to the finality of resolutions or decisions in disqualification cases, which provides:

"This pertains to the finality of decisions or resolutions of the Commission en banc or division, particularly on Special Actions (Disqualification Cases). EcIDaA

Special Action cases refer to the following:

(a) Petition to deny due course to a certificate of candidacy;

(b) Petition to declare a candidate as a nuisance candidate;

(c) Petition to disqualify a candidate; and

(d) Petition to postpone or suspend an election.

Considering the foregoing and in order to guide field officials on the finality of decisions or resolutions on special action cases (disqualification cases) the Commission, RESOLVES, as it is hereby RESOLVED, as follows:

(1) the decision or resolution of the En Banc of the Commission on disqualification cases shall become final and executory after five (5) days from its promulgation unless restrained by the Supreme Court;

xxx xxx xxx

(4) the decision or resolution of the En Banc on nuisance candidates, particularly whether the nuisance candidate has the same name as the bona fide candidate shall be immediately executory;

(5) the decision or resolution of a DIVISION on nuisance candidate, particularly where the nuisance candidate has the same name as the bona fide candidate shall be immediately executory after the lapse of five (5) days unless a motion for reconsideration is seasonably filed. In which case, the votes cast shall not be considered stray but shall be counted and tallied for the bona fide candidate.

All resolutions, orders and rules inconsistent herewith are hereby modified or repealed." [EMPHASIS SUPPLIED.]

We held in several cases that the judgments of the Electoral Tribunals are beyond judicial interference, unless rendered without or in excess of their jurisdiction or with grave abuse of discretion. 27 The power of judicial review may be invoked in exceptional cases upon a clear showing of such arbitrary and improvident use by the Tribunal of its power as constitutes a clear denial of due process of law, or upon a demonstration of a very clear unmitigated error, manifestly constituting such grave abuse of direction that there has to be a remedy for such abuse.  28 Grave abuse of discretion implies capricious and whimsical exercise of judgment amounting to lack of jurisdiction, or arbitrary and despotic exercise of power because of passion or personal hostility. The grave abuse of discretion must be so patent and gross as to amount to an evasion or refusal to perform a duty enjoined by law. 29 Respondent HRET gravely abused its discretion in affirming the proclamation of respondent Salimbangon as the duly elected Representative of the Fourth Legislative District of Cebu despite the final outcome of revision showing 5,401 ballots with only "MARTINEZ" or "C. "MARTINEZ" written on the line for Representative, votes which should have been properly counted in favor of petitioner and not nullified as stray votes, after considering all relevant circumstances clearly establishing that such votes could not have been intended for "Edilito C. Martinez" who was declared a nuisance candidate in a final judgment. IHTaCE 

Ensconced in our jurisprudence is the well-founded rule that laws and statutes governing election contests especially appreciation of ballots must be liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated by technical infirmities. An election protest is imbued with public interest so much so that the need to dispel uncertainties which becloud the real choice of the people is imperative. 30 The prohibition against nuisance candidates is aimed precisely at preventing uncertainty and confusion in ascertaining the true will of the electorate. Thus, in certain situations as in the case at bar, final judgments declaring a nuisance candidate should effectively cancel the certificate of candidacy filed by such candidate as of election day. Otherwise, potential nuisance candidates will continue to put the electoral process into mockery by filing certificates of candidacy at the last minute and delaying resolution of any petition to declare them as nuisance candidates until elections are held and the votes counted and canvassed.

We therefore hold that ballots indicating only the similar surname of two (2) candidates for the same position may, in appropriate cases, be counted in favor of the bona fidecandidate and not considered stray, even if the other candidate was declared a nuisance candidate by final judgment after the elections. Accordingly, the 5,401 votes for "MARTINEZ" or "C. MARTINEZ" should be credited to petitioner giving him a total of 72,056 votes as against 67,108 total votes of private respondent. Petitioner thus garnered more votes than private respondent with a winning margin of 4,948 votes.

WHEREFORE, the petition is GRANTED. The Decision dated May 28, 2009 and Resolution dated July 30, 2009 of the House of Representatives Electoral Tribunal in HRET Case No. 07-035 are ANNULLED and SET ASIDE. Petitioner Celestino A. Martinez III is hereby declared the duly elected Representative of the Fourth Legislative District of Cebu in the May 14, 2007 elections. This decision is immediately executory.

Let a copy of the decision be served personally upon the parties and their counsels.

No pronouncement as to costs.

SO ORDERED.

EN BANC

[G.R. No. 161872. April 13, 2004.]

REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner, vs. COMMISSION ON ELECTIONS, respondent.

R E S O L U T I O N

TINGA, J p:

Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on December 17, 2003. Respondent Commission on Elections (COMELEC) refused to give due course to petitioner’s Certificate of Candidacy in its Resolution No. 6558 dated January 17, 2004. The decision, however, was not unanimous since Commissioners Luzviminda G. Tancangco and Mehol K. Sadain voted to include petitioner as they believed he had parties or movements to back up his candidacy.

On January 15, 2004, petitioner moved for reconsideration of Resolution No. 6558. Petitioner’s Motion for Reconsideration was docketed as SPP (MP) No. 04-001. The COMELEC, acting on petitioner’s Motion for Reconsideration and on similar motions filed by other aspirants for national elective positions, denied the same under the aegis ofOmnibus Resolution No. 6604 dated February 11, 2004. The COMELEC declared petitioner and thirty-five (35) others nuisance candidates who could not wage a nationwide campaign and/or are not nominated by a political party or are not supported by a registered political party with a national constituency. Commissioner Sadain maintained his vote for petitioner. By then, Commissioner Tancangco had retired.

In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which were allegedly rendered in violation of his right to “equal access to opportunities for public service” under Section 26, Article II of the 1987 Constitution, 1 by limiting the number of qualified candidates only to those who can afford to wage a nationwide campaign and/or are nominated by political parties. In so doing, petitioner argues that the COMELEC indirectly amended the constitutional provisions on the electoral process and limited the power of the sovereign people to choose their leaders. The COMELEC supposedly erred in disqualifying him since he is the most qualified among all the presidential candidates, i.e., he possesses all the constitutional and legal qualifications for the office of the president, he is capable of waging a national campaign since he has numerous national organizations under his leadership, he also has the capacity to wage an international campaign since he has practiced law in other countries, and he has a platform of government. Petitioner likewise attacks the validity of the form for the Certificate of Candidacy prepared by the COMELEC. Petitioner claims that the form does not provide clear and reasonable guidelines for determining the qualifications of candidates since it does not ask for the candidate’s bio-data and his program of government.

First, the constitutional and legal dimensions involved.

Implicit in the petitioner’s invocation of the constitutional provision ensuring “equal access to opportunities for public office” is the claim that there is a constitutional right to run for or hold public office and, particularly in his case, to seek the presidency. There is none. What is recognized is merely a privilege subject to limitations imposed by law. Section 26, Article II of the Constitution neither bestows such a right nor elevates the privilege to the level of an enforceable right. There is nothing in the plain language of the provision which suggests such a thrust or justifies an interpretation of the sort.

The “equal access” provision is a subsumed part of Article II of the Constitution, entitled “Declaration of Principles and State Policies.” The provisions under the Article are generally considered not self-executing, 2 and there is no plausible reason for according a different treatment to the “equal access” provision. Like the rest of the policies enumerated in Article II, the provision does not contain any judicially enforceable constitutional right but merely specifies a guideline for legislative or executive action. 3 The disregard of the provision does not give rise to any cause of action before the courts. 4

An inquiry into the intent of the framers 5 produces the same determination that the provision is not self-executory. The original wording of the present Section 26, Article II had read, “The State shall broaden opportunities to public office and prohibit public dynasties.” 6 Commissioner (now Chief Justice) Hilario Davide, Jr. successfully brought forth an amendment that changed the word “broaden” to the phrase “ensure equal access,” and the substitution of the word “office” to “service.” He explained his proposal in this wise:

I changed the word “broaden” to “ENSURE EQUAL ACCESS TO” because what is important would be equal access to the opportunity. If you broaden, it would necessarily mean that the government would be mandated to create as many offices as are possible to accommodate as many people as are also possible. That is the meaning of broadening opportunities to public service. So, in order that we should not mandate the State to make the government the number one employer and to limit offices only to what may be necessary and expedient yet offering equal opportunities to access to it, I change the word “broaden.” 7 (emphasis supplied)

Obviously, the provision is not intended to compel the State to enact positive measures that would accommodate as many people as possible into public office. The approval of the “Davide amendment” indicates the design of the framers to cast the provision as simply enunciatory of a desired policy objective and not reflective of the imposition of a clear State burden.

Moreover, the provision as written leaves much to be desired if it is to be regarded as the source of positive rights. It is difficult to interpret the clause as operative in the absence of legislation since its effective means and reach are not properly defined. Broadly written, the myriad of claims that can be subsumed under this rubric appear to be entirely open-ended. 8 Words and phrases such as “equal access,” “opportunities,” and “public service” are susceptible to countless interpretations owing to their inherent impreciseness. Certainly, it was not the intention of the framers to inflict on the people an operative but amorphous foundation from which innately unenforceable rights may be sourced. HCTEDa

As earlier noted, the privilege of equal access to opportunities to public office may be subjected to limitations. Some valid limitations specifically on the privilege to seek elective office are found in the provisions 9 of the Omnibus Election Code on “Nuisance Candidates” and COMELEC Resolution No. 6452 10 dated December 10, 2002 outlining the instances wherein the COMELEC may motu proprio refuse to give due course to or cancel a Certificate of Candidacy.

As long as the limitations apply to everybody equally without discrimination, however, the equal access clause is not violated. Equality is not sacrificed as long as the burdens engendered by the limitations are meant to be borne by any one who is minded to file a certificate of candidacy. In the case at bar, there is no showing that any person is exempt from the limitations or the burdens which they create.

Significantly, petitioner does not challenge the constitutionality or validity of Section 69 of the Omnibus Election Code and COMELEC Resolution No. 6452 dated 10 December 2003. Thus, their presumed validity stands and has to be accorded due weight.

Clearly, therefore, petitioner’s reliance on the equal access clause in Section 26, Article II of the Constitution is misplaced.

The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who have not evinced a bona fide intention to run for office is easy to divine. The State has a compelling interest to ensure that its electoral exercises are rational, objective, and orderly. Towards this end, the State takes into account the practical considerations in conducting elections. Inevitably, the greater the number of candidates, the greater the opportunities for logistical confusion, not to mention the increased allocation of time and resources in preparation for the election. These practical difficulties should, of course, never exempt the State from the conduct of a mandated electoral exercise. At the same time, remedial actions should be available to alleviate these logistical hardships, whenever necessary and proper. Ultimately, a disorderly election is not merely a textbook example of inefficiency, but a rot that erodes faith in our democratic institutions. As the United States Supreme Court held:

[T]here is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization and its candidates on the ballot — the interest, if no other, in avoiding confusion, deception and even frustration of the democratic [process]. 11

The COMELEC itself recognized these practical considerations when it promulgated Resolution No. 6558 on 17 January 2004, adopting the study Memorandum of its Law Department dated 11 January 2004. As observed in the COMELEC’s Comment:

There is a need to limit the number of candidates especially in the case of candidates for national positions because the election process becomes a mockery even if those who cannot clearly wage a national campaign are allowed to run. Their names would have to be printed in the Certified List of Candidates, Voters Information Sheet and the Official Ballots. These would entail additional costs to

the government. For the official ballots in automated counting and canvassing of votes, an additional page would amount to more or less FOUR HUNDRED FIFTY MILLION PESOS (P450,000,000.00).

. . . [I]t serves no practical purpose to allow those candidates to continue if they cannot wage a decent campaign enough to project the prospect of winning, no matter how slim.12

 

The preparation of ballots is but one aspect that would be affected by allowance of “nuisance candidates” to run in the elections. Our election laws provide various entitlements for candidates for public office, such as watchers in every polling place, 13 watchers in the board of canvassers, 14 or even the receipt of electoral contributions. 15 Moreover, there are election rules and regulations the formulations of which are dependent on the number of candidates in a given election.

Given these considerations, the ignominious nature of a nuisance candidacy becomes even more galling. The organization of an election with bona fide candidates standing is onerous enough. To add into the mix candidates with no serious intentions or capabilities to run a viable campaign would actually impair the electoral process. This is not to mention the candidacies which are palpably ridiculous so as to constitute a one-note joke. The poll body would be bogged by irrelevant minutiae covering every step of the electoral process, most probably posed at the instance of these nuisance candidates. It would be a senseless sacrifice on the part of the State.

Owing to the superior interest in ensuring a credible and orderly election, the State could exclude nuisance candidates and need not indulge in, as the song goes, “their trips to the moon on gossamer wings.”

The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the compelling State interest to ensure orderly and credible elections by excising impediments thereto, such as nuisance candidacies that distract and detract from the larger purpose. The COMELEC is mandated by the Constitution with the administration of elections 16 and endowed with considerable latitude in adopting means and methods that will ensure the promotion of free, orderly and honest elections. 17 Moreover, the Constitution guarantees that only bona fide candidates for public office shall be free from any form of harassment and discrimination. 18 The determination of bona fide candidates is governed by the statutes, and the concept, to our mind is, satisfactorily defined in the Omnibus Election Code.

Now, the needed factual premises.

However valid the law and the COMELEC issuance involved are, their proper application in the case of the petitioner cannot be tested and reviewed by this Court on the basis of what is now before it. The assailed resolutions of the COMELEC do not direct the Court to the evidence which it considered in determining that petitioner was a nuisance candidate. This precludes the Court from reviewing at this instance whether the COMELEC committed grave abuse of discretion in disqualifying petitioner, since such a review would necessarily take into account the matters which the COMELEC considered in arriving at its decisions.

Petitioner has submitted to this Court mere photocopies of various documents purportedly evincing his credentials as an eligible candidate for the presidency. Yet this Court, not being a trier of facts, can not properly pass upon the reproductions as evidence at this level. Neither the COMELEC nor the Solicitor General appended any document to their respective Comments.

The question of whether a candidate is a nuisance candidate or not is both legal and factual. The basis of the factual determination is not before this Court. Thus, the remand of this case for the reception of further evidence is in order.

A word of caution is in order. What is at stake is petitioner’s aspiration and offer to serve in the government. It deserves not a cursory treatment but a hearing which conforms to the requirements of due process.

As to petitioner’s attacks on the validity of the form for the certificate of candidacy, suffice it to say that the form strictly complies with Section 74 of the Omnibus Election Code. This provision specifically enumerates what a certificate of candidacy should contain, with the required information tending to show that the candidate possesses the minimum qualifications for the position aspired for as established by the Constitution and other election laws.

IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby remanded to the COMELEC for the reception of further evidence, to determine the question on whether petitioner Elly Velez Lao Pamatong is a nuisance candidate as contemplated in Section 69 of the Omnibus Election Code.

The COMELEC is directed to hold and complete the reception of evidence and report its findings to this Court with deliberate dispatch.

SO ORDERED. 

EN BANC

[G.R. No. 135886. August 16, 1999.]

VICTORINO SALCEDO II, petitioner, vs. COMMISSION ON ELECTIONS and ERMELITA CACAO SALCEDO, respondents.

Brillantes Navarro Jumamil Arcilla Escolin & Martinez Law Office for petitioner.

Justiniani Romero & Associates for private respondent.

SYNOPSIS

Petitioner and private respondent both ran for the position of mayor of the municipality of Sara, Iloilo in the May 11, 1998 elections. Petitioner filed with the Commission on Elections (Comelec) a petition seeking the cancellation of private respondent's certificate of candidacy on the ground that she had made a false representation therein by stating that her surname was "Salcedo." Petitioner contended that private respondent had no right to use said surname because she was not legally married to Neptali Salcedo. Private respondent was eventually proclaimed as the duly elected mayor of Sara, Iloilo. The Comelec's Second Division ruled by a vote of 2 to 1, that since there is an existing valid marriage between Neptali Salcedo and a certain Agnes Celiz, the subsequent marriage of the former with private respondent is null and void. According to the Comelec, the use by private respondent of the surname "Salcedo" constitutes material representation and is a ground for the cancellation of her certificate of candidacy. However, in its en bancResolution, the Comelec overturned its previous resolution, ruling that private respondent's jurisdiction by way of a petition for certiorari under Rule 65, claiming that public respondent's ruling was issued in grave abuse of discretion. The main issue is whether private respondent's use of such surname constitutes a material misrepresentation under Section 78 of the Omnibus Election Code.

The Supreme Court held that the use of private respondent of the surname "Salcedo" does not constitute material misrepresentation under Section 78 of the Omnibus Election Code. According to the Court, the material misrepresentation contemplated by the Code refers to qualifications for elective office. The Court also ruled that a false representation under Section 78 must be made with the intention to deceive the electorate as to one's qualifications for public office. The Court stressed that the use of a surname, when not intended to mislead or deceive the public as to one's identity, is not within the scope of the provision.

SYLLABUS

1. POLITICAL LAW; ELECTION LAW; OMNIBUS ELECTION CODE; SECTION 78 THEREOF; THE MATERIAL MISREPRESENTATION CONTEMPLATED BY SAID PROVISION REFER TO QUALIFICATIONS FOR ELECTIVE OFFICE; IT COULD NOT HAVE BEEN THE INTENTION OF THE LAW TO DEPRIVE A PERSON OF SUCH A BASIC AND SUBSTANTIVE POLITICAL RIGHT TO BE VOTED FOR A PUBLIC OFFICE UPON JUST ANY INNOCUOUS MISTAKE. — The material misrepresentation contemplated by Section 78 of the Code refer to qualifications for elective office. This conclusion is strengthened by the fact that the consequences imposed upon a candidate guilty of having made a false representation in his certificate of candidacy are grave — to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of the election laws. It could not have been the intention of the law to deprive a person of such a basic and substantive political right to be voted for a public office upon just any innocuous mistake. Petitioner has made no allegations concerning private respondent's qualifications to run for the office of mayor. Aside from his contention that she made a misrepresentation in the use of the surname "Salcedo," petitioner does not claim that private respondent lacks the requisite residency, age, citizenship or any other legal qualification necessary to run for a local elective as provided for in the Local Government Code. Thus, petitioner has failed to discharge the burden of proving that the misrepresentation allegedly made by respondent in her certificate of candidacy pertains to a material matter.

2. ID.; ID.; ID.; ID.; THE FALSE REPRESENTATION UNDER SECTION 78 MUST BE MADE WITH THE INTENTION TO DECEIVE THE ELECTORATE AS TO ONE'S QUALIFICATION FOR PUBLIC OFFICE; THE USE OF SURNAME, WHEN NOT INTENDED TO MISLEAD OR DECEIVE THE PUBLIC AS TO ONE'S IDENTITY, IS NOT WITHIN THE SCOPE OF THE PROVISION. — Aside from the requirement of materiality, a false representation under Section 78 must consist of a "deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible." In other words, it must be made with an intention to deceive the electorate as to one's qualifications for public office. The use of a surname, when not intended to mislead or deceive the public as to one's identity, is not within the scope of the provision. There is absolutely no showing that the inhabitants of Sara, Iloilo were deceived by the use of such surname by private respondent. Petitioner does not allege that the electorate did not know who they were voting for when they cast their ballots in favor of "Ermelita Cacao Salcedo" or that they were fooled into voting for someone else by the use of such name. It may safely be assumed that the electorate knew who private respondent was, not only by name, but also by face and

may have even been personally acquainted with her since she has been residing in the municipality of Sara, Iloilo since at least 1986. Bolstering this assumption is the fact that she has been living with Neptali Salcedo, the mayor of Sara for three consecutive terms, since 1970 and the latter has held her out to the public as his wife. Also arguing against petitioner's claim that private respondent intended to deceive the electorate is the fact that private respondent started using the surname "Salcedo" since 1986, several years before the elections. In her application for registration of her rice and corn milling business filed with the Department of Trade and Industry in 1993, private respondent used the name "Ermelita Cacao Salcedo." From 1987 to 1997, she also used the surname "Salcedo" in the income tax returns filed by herself and by Neptali Salcedo. The evidence presented by private respondent on this point, which has remained uncontested by petitioner, belie the latter's claims that private respondent merely adopted the surname "Salcedo" for purposes of improving her chances of winning in the local elections by riding on the popularity of her husband. Thus, we hold that private respondent did not commit any material misrepresentation by the use of the surname "Salcedo" in her certificate of candidacy.

3. ID.; ID.; COMMISSION ON ELECTIONS; THERE IS NO LEGAL PROSCRIPTION IMPOSED UPON THE DECIDING BODY AGAINST ADOPTING A POSITION CONTRARY TO ONE PREVIOUSLY TAKEN. — Petitioner does not indicate what legal provision or equitable principle the Comelec transgressed by the commission of these acts. We find nothing legally assailable with the Comelec's adoption in its en banc Resolution of the reasoning contained in the dissenting opinion of Commissioner Desamito; nor is the en bancResolution rendered infirm by the mere change of position adopted by Chairman Pardo and Guiani of the Second Division. Precisely; the purpose of a motion for reconsideration it to allow the adjudicator a second opportunity to review the case and to grapple with the issues therein, deciding anew a question previously raised. There is no legal proscription imposed upon the deciding body against adopting a position contrary to one previously taken. AEcIaH

D E C I S I O N

GONZAGA-REYES, J p:

This is a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure of the en banc Resolution of the Commission on Elections (Comelec) dated October 6, 1998, which reversed the earlier Resolution issued by its Second Division on August 12, 1998. LibLex

From the pleadings and the annexes, the following uncontroverted facts have been established —

On February 18, 1968, Neptali P. Salcedo married Agnes Celiz, which marriage is evidenced by a certified true copy of the marriage contract issued by the Municipal Civil Registrar of Ajuy, Iloilo. 1 Without his first marriage having been dissolved, Neptali P. Salcedo married private respondent Ermelita Cacao in a civil ceremony held on September 21, 1986. 2 Two days later, on September 23, 1986, Ermelita Cacao contracted another marriage with a certain Jesus Aguirre, as shown by a marriage certificate filed with the Office of the Civil Registrar. 3

Petitioner Victorino Salcedo II and private respondent Ermelita Cacao Salcedo both ran for the position of mayor of the municipality of Sara, Iloilo in the May 11, 1998 elections, both of them having filed their respective certificates of candidacy on March 27, 1998. 4 However, on April 17, 1998, petitioner filed with the Comelec a petition 5 seeking the cancellation of private respondent's certificate of candidacy on the ground that she had made a false representation therein by stating that her surname was "Salcedo." Petitioner contended that private respondent had no right to use said surname because she was not legally married to Neptali Salcedo. On May 13, 1998, private respondent was proclaimed as the duly elected mayor of Sara, Iloilo. 6

In her answer, private respondent claimed that she had no information or knowledge at the time she married Neptali Salcedo that he was in fact already married; that, upon learning of his existing marriage, she encouraged her husband to take steps to annul his marriage with Agnes Celiz because the latter had abandoned their marital home since 1972 and has not been heard from since that time; that on February 16, 1998, Neptali Salcedo filed a petition for declaration of presumptive death before Branch 66 of the Regional Trial Court of Barotac Viejo, Iloilo, which was granted by the court in its April 8, 1998 decision; that Neptali Salcedo and Jesus Aguirre are one and the same person; and that since 1986 up to the present she has been using the surname "Salcedo" in all her personal, commercial and public transactions. 7

 

On August 12, 1998, the Comelec's Second Division ruled, by a vote of 2 to 1, 8 that since there is an existing valid marriage between Neptali Salcedo and Agnes Celiz, the subsequent marriage of the former with private respondent is null and void. Consequently, the use by private respondent of the surname "Salcedo" constitutes material misrepresentation and is a ground for the cancellation of her certificate of candidacy. The pertinent portion of the Resolution reads as follows —

The only issue to be resolved is whether or not the use by respondent of the surname "Salcedo" in her certificate of candidacy constitutes material misrepresentation under Section 78 in relation to Section 74 of the Omnibus Election Code. Cdpr

Section 78 of the of the (sic) Omnibus Election Code reads:

"A verified petition seeking to deny due course to or cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material misrepresentation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election."

A candidate's name or surname contained in the certificate of candidacy is required under Section 74 of the Omnibus Election Code and is a material mispresentation.

Gleaned from the records, respondent admitted that she married Neptali Salcedo on September 21, 1986 in a civil ceremony held in Sara, Iloilo and that she married Jesus Aguirre on September 23, 1986. For the petitioner, this admission is supported by a marriage contract (attached as Annex "C" of the Petition) and a certificate of marriage (attached as Annex "D" of the petition) where the contracting parties are "Jesus Aguirre" and "Ermelita Cacao". On the other hand, respondent tries to create the impression that "Neptali Salcedo" and "Jesus Aguirre" are one and the same persons. This Commission, however, holds the view that regardless of whether Neptali Salcedo and Jesus Aguirre are the same persons, the fact remains irrefutable is that at the time respondent contracted marriage with Neptali Salcedo, the latter has a valid existing marriage with Agnes Celiz and this was sufficiently established by a marriage contract executed on February 18, 1968 and attached to the petition as Annex "E". Respondent cannot seek refuge in her bare assumption that since Agnes Celiz was declared as presumptively dead by the Regional Trial Court of Barotac Viejo, Iloilo, she was free to marry Neptali Salcedo. In point of fact and law, there was considerably NO pronouncement to the effect that the marriage of Neptali Salcedo and Agnes Celiz was annulled by the court and that Salcedo became free to marry respondent.

From all indications, it is to be fairly assumed that since there is an existing valid marriage between Neptali Salcedo and Agnes Celiz, the subsequent marriage of the former with the respondent is null and void. Consequently, the use by the respondent of the surname "Salcedo" constitutes material misrepresentation and is a ground for the cancellation of her certificate of candidacy.

WHEREFORE, this Commission (SECOND DIVISION) RESOLVED, as it hereby RESOLVES, to CANCEL the Certificate of Candidacy of respondent for the position of Municipal Mayor of Sara, Iloilo in the May 11, 1998 elections. 9

However, in its en banc Resolution dated October 6, 1998, the Comelec overturned its previous resolution, ruling that private respondent's certificate of candidacy did not contain any material misrepresentation. It disposed of the case in this manner —

The record shows that respondent Ermelita C. Salcedo married Neptali Salcedo on September 21, 1986. Under Article 370 of the Civil Code, the respondent may use her husband's surname. Hence, there is no material misrepresentation nor usurpation of another's name. LLpr

At any rate, its has been said that the "filing of a certificate of candidacy is a technicality that should be enforced before the election, but can be disregarded after the electorate has made the choosing" (Collado vs. Alonzo, 15 SCRA 526). This rule is in consonance with the policy announced in many decisions that "the rules and regulations, for the conduct of elections, are mandatory before the elections, but when it is sought to enforce them after the elections, they are held to be directory only" (Lambonao vs. Tero, 15 SCRA 716).

Furthermore, the municipal board of canvassers proclaimed the respondent last May 13, 1998, as the duly elect mayor of the municipality of Sara, Province of Iloilo. Any defect in the respondent's certificate of candidacy should give way to the will of the electorate.

WHEREFORE, the COMMISSION resolves to GRANT the instant Motion for Reconsideration. We REVERSE the resolution (Second Division) promulgated on August 12, 1998, cancelling the certificate of candidacy of the respondent Ermelita C. Salcedo. The proclamation of Ermelita C. Salcedo, as mayor of Sara, Iloilo, remains valid, there being no legal ground to set it aside. 10

This last resolution of the Comelec prompted petitioner to repair to this Court by way of a petition for certiorari under Rule 65, claiming that public respondent's ruling was issued in grave abuse of its discretion.

Contrary to petitioner's contention, we are of the opinion that the main issue in this case is not whether or not private respondent is entitled to use a specific surname in her certificate of candidacy, 11 but whether the use of such surname constitutes a material misrepresentation under section 78 of the Omnibus Election Code (the "Code") so as to justify the cancellation of her certificate of candidacy. We hold that it does not.

Every person aspiring to hold any elective public office must file a sworn certificate of candidacy. 12 One of the things which should be stated therein is that the candidate is eligible for the office. 13

In case there is a material misrepresentation in the certificate of candidacy, the Comelec is authorized to deny due course to or cancel such certificate upon the filing of a petition by any person pursuant to section 78 of the Code which states that —

A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material misrepresentation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election.

If the petition is filed within the statutory period and the candidate is subsequently declared by final judgment to be disqualified before the election, he shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or the Comelec shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.  14 The fifteen-day period in section 78 for deciding the petition is merely directory. 15

As stated in the law, in order to justify the cancellation of the certificate of candidacy under section 78, it is essential that the false representation mentioned therein pertain to a material matter for the sanction imposed by this provision would affect the substantive rights of a candidate — the right to run for the elective post for which he filed the certificate of candidacy. Although the law does not specify what would be considered as a "material representation," the Court has interpreted this phrase in a line of decisions applying section 78 of the Code. LibLex

In Abella vs. Larrazabal, supra, a petition was filed with the Comelec seeking the disqualification of private respondent Larrazabal for alleged false statements in her certificate of candidacy regarding residence. The Court held that the challenge made against private respondent's claimed residence was properly classified as a proceeding under section 78, despite the fact that it was filed only on the very day of the election. 16

Meanwhile, in Labo vs. Commission on Elections, 17 the disqualification proceeding filed by respondent pursuant to section 78 of the Code sought to cancel the certificate of candidacy filed by petitioner Ramon Labo, who ran for mayor of Baguio City in the last May 11, 1992 elections, based on the ground that Labo made a false representation when he stated therein that he is natural-born citizen of the Philippines. The Court, speaking through Justice Abdulwahid A. Bidin, held that Labo, having failed to submit any evidence to prove his reacquisition of Philippine citizenship, is not a Filipino citizen and respondent Comelec did not commit any grave abuse of discretion in cancelling his certificate of candidacy. The Court went on to say that the possession of citizenship, being an indispensable requirement for holding public office, may not be dispensed with by the fact of having won the elections for it "strikes at the very core of petitioner Labo's qualification to assume the contested office."

A similar issue was dealt with in the Frivaldo vs. Commission on Elections cases 18 wherein Frivaldo's qualification for public office was questioned in a petition filed by petitioner Raul R. Lee, praying that Frivaldo be disqualified from seeking or holding any public office or position and that his certificate of candidacy be cancelled by reason of his not yet being a citizen of the Philippines. The Court held that Frivaldo had reacquired Philippine citizenship by virtue of his repatriation under P.D. 725 and was qualified to hold the position of governor of Sorsogon.

 

The Court has likened a proceeding under section 78 to a quo warranto proceeding under section 253 since they both deal with the qualifications of a candidate. In the case ofAznar vs. Commission on Elections, 19 wherein a petition was filed asking the Comelec to disqualify private respondent Emilio Osmena on the ground that he does not possess the requisite Filipino citizenship, the Court said —

There are two instances where a petition questioning the qualifications of a registered candidate to run for the office for which his certificate of candidacy was filed can be raised under the Omnibus Election Code (B.P. Blg. 881), to wit:

"(1) Before election, pursuant to Section 78 thereof which provides that:

'SECTION 78. Petition to deny due course or to cancel a certificate of candidacy . — A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material misrepresentation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. Cdpr

and

"(2) After election, pursuant to Section 253 thereof, viz:

'SECTION 253. Petition for quo warranto. — Any voter contesting the election of any Member of the Batasang Pambansa 20 , regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the proclamation of the results of the election."

(emphasis supplied)

The only difference between the two proceedings is that, under section 78, the qualifications for elective office are misrepresented in the certificate of candidacy and the proceedings must be initiated before the elections, whereas a petition for quo warranto under section 253 may be brought on the basis of two grounds — (1) ineligibility or (2) disloyalty to the Republic of the Philippines, and must be initiated within ten days after the proclamation of the election results. Under section 253, a candidate is ineligible if he is disqualified to be elected to office, 21 and he is disqualified if he lacks any of the qualifications for elective office.

In still another case, where the petition to disqualify petitioner was based upon an alleged false representation in the certificate of candidacy as to the candidate's age, the Court once again drew a parallel between a petition for  quo warranto and a petition to cancel a certificate of candidacy when it stated that ". . . if a person qualified to file a petition to disqualify a certain candidate fails to file the petition within the 25-day period prescribed by Section 78 of the Code for whatever reasons, the election laws do not leave him completely helpless as he has another chance to raise the disqualification of the candidate by filing a petition for quo warranto within ten (10) days from the proclamation of the results of the election, as provided under Section 253 of the Code." 22

Therefore, it may be concluded that the material misrepresentation contemplated by section 78 of the Code refer to qualifications for elective office. This conclusion is strengthened by the fact that the consequences imposed upon a candidate guilty of having made a false representation in his certificate of candidacy are grave — to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of the election laws. 23 It could not have been the intention of the law to deprive a person of such a basic and substantive political right to be voted for a public office upon just any innocuous mistake.

Petitioner has made no allegations concerning private respondent's qualifications to run for the office of mayor. Aside from his contention that she made a misrepresentation in the use of the surname "Salcedo," petitioner does not claim that private respondent lacks the requisite residency, age, citizenship or any other legal qualification necessary to run for a local elective office as provided for in the Local Government Code. 24 Thus, petitioner has failed to discharge the burden of proving that the misrepresentation allegedly made by private respondent in her certificate of candidacy pertains to a material matter.

Aside from the requirement of materiality, a false representation under section 78 must consist of a "deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible." 25 In other words, it must be made with an intention to deceive the electorate as to one's qualifications for public office. The use of a surname, when not intended to mislead or deceive the public as to one's identity, is not within the scope of the provision. dctai

There is absolutely no showing that the inhabitants of Sara, Iloilo were deceived by the use of such surname by private respondent. Petitioner does not allege that the electorate did not know who they were voting for when they cast their ballots in favor of "Ermelita Cacao Salcedo" or that they were fooled into voting for someone else by the use of such name. It may safely be assumed that the electorate knew who private respondent was, not only by name, but also by face and may have even been personally acquainted with her since she has been residing in the municipality of Sara, Iloilo since at least 1986. 26 Bolstering this assumption is the fact that she has been living with Neptali Salcedo, the mayor of Sara for three consecutive terms, since 1970 and the latter has held her out to the public as his wife. 27

Also arguing against petitioner's claim that private respondent intended to deceive the electorate is the fact that private respondent started using the surname "Salcedo" since 1986, several years before the elections. In her application for registration of her rice and corn milling business filed with the Department of Trade and Industry in 1993, private respondent used the name "Ermelita Cacao Salcedo." 28 From 1987 to 1997, she also used the surname "Salcedo" in the income tax returns filed by herself and by Neptali Salcedo. 29 The evidence presented by private respondent on this point, which has remained uncontested by petitioner, belie the latter's claims that private respondent merely adopted the surname "Salcedo" for purposes of improving her chances of winning in the local elections by riding on the popularity of her husband.

Thus, we hold that private respondent did not commit any material misrepresentation by the use of the surname "Salcedo" in her certificate of candidacy.

Having disposed of the major issues, we will now proceed to tackle the secondary issues raised in the petition. Petitioner claims that the following circumstances constitute grave abuse of discretion on the part of the Comelec: (1) the October 6, 1998 en banc Resolution of the Comelec, sustaining the validity of private respondent's certificate of candidacy, merely duplicated the dissenting opinion of Commissioner Desamito of the Second Division in the August 12, 1998 Resolution; (2) Chairman Pardo, the ponente of the en bancResolution, and Commissioner Guiani, both members of the Second Division who ruled in favor of petitioner in the August 12, 1998 Resolution, reversed their positions in the en banc resolution; and (3) the en banc Resolution was promulgated on the very same day that Chairman Pardo took his oath of office as Associate Justice of the Supreme Court.

Petitioner does not indicate what legal provision or equitable principle the Comelec transgressed by the commission of these acts. We find nothing legally assailable with the Comelec's adoption in its en banc Resolution of the reasoning contained in the dissenting opinion of Commissioner Desamito; nor is the en banc Resolution rendered infirm by the mere change of position adopted by Chairman Pardo and Guiani of the Second Division. Precisely, the purpose of a motion for reconsideration is to allow the adjudicator a second opportunity to review the case and to grapple with the issues therein, deciding anew a question previously raised. 30 There is no legal proscription imposed upon the deciding body against adopting a position contrary to one previously taken.

Finally, the fact that the decision was promulgated on the day Chairman Pardo, the ponente of the en banc Resolution, took his oath of office as Associate Justice of the Supreme Court does not give ground to question the Comelec decision for then Chairman Pardo enjoys the presumption of regularity in the performance of his official duties, a presumption which petitioner has failed to rebut. At any rate, the date of promulgation is not necessarily the date of signing. cdphil

In upholding the validity of private respondent's certificate of candidacy, we reiterate that "[t]he sanctity of the people's will must be observed at all times if our nascent democracy is to be preserved. In any challenge having the effect of reversing a democratic voice, expressed through the ballot, this Court should be ever so vigilant in finding solutions which would give effect to the will of the majority, for sound public policy dictates that all elective offices are filled by those who have received the highest number of votes cast in an election. When a challenge to a winning candidate's qualifications however becomes inevitable, the ineligibility ought to be so noxious to the Constitution that giving effect to the apparent

will of the people would ultimately do harm to our democratic institutions." 31 Since there appears to be no dispute as to private respondent's qualifications to hold the office of municipal mayor, the will of the electorate must prevail.

WHEREFORE, the Court hereby AFFIRMS the en banc Resolution of the Commission on Elections dated October 6, 1998 denying the petition to cancel private respondent's certificate of candidacy. No pronouncement as to costs.

 

SO ORDERED.

EN BANC

[G.R. No. 189698. December 1, 2009.]

ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., petitioners, vs. COMMISSION ON ELECTIONS, respondent.

DECISION

NACHURA, J p:

"In our predisposition to discover the 'original intent' of a statute, courts become the unfeeling pillars of the  status quo. Little do we realize that statutes or even constitutions are bundles of compromises thrown our way by their framers. Unless we exercise vigilance, the statute may already be out of tune and irrelevant to our day".  1 It is in this light that we should address the instant case.

Before the Court is a petition for prohibition and certiorari, with prayer for the issuance of a temporary restraining order and a writ of preliminary injunction, assailing Section 4 (a) of Resolution No. 8678 of the Commission on Elections (COMELEC). In view of pressing contemporary events, the petition begs for immediate resolution.

The Antecedents

This controversy actually stems from the law authorizing the COMELEC to use an automated election system (AES).

On December 22, 1997, Congress enacted Republic Act (R.A.) No. 8436, entitled "AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES". Section 11 thereof reads:

SEC. 11. Official Ballot. — The Commission shall prescribe the size and form of the official ballot which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size. A fixed space where the chairman of the Board of Election inspectors shall affix his/her signature to authenticate the official ballot shall be provided. cHCSDa

Both sides of the ballots may be used when necessary.

For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the positions of President, Vice President, Senators and candidates under the Party-List System as well as petitions for registration and/or manifestation to participate in the Party-List System shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on March 27, 1998.

The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens' arms of the Commission may assign watchers in the printing, storage and distribution of official ballots.

To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be impossible to reproduce on a photocopying machine and that identification marks, magnetic strips, bar codes and other technical and security markings, are provided on the ballot.

The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for every registered voter with a provision of additional four (4) ballots per precinct. 2

Almost a decade thereafter, Congress amended the law on January 23, 2007 by enacting R.A. No. 9369, entitled "AN ACT AMENDING REPUBLIC ACT NO. 8436, ENTITLED 'AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, TO ENCOURAGE TRANSPARENCY, CREDIBILITY, FAIRNESS AND ACCURACY OF ELECTIONS, AMENDING FOR THE PURPOSE BATAS PAMPANSA BLG. 881, AS AMEMDED, REPUBLIC ACT NO. 7166 AND OTHER RELATED ELECTION LAWS, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES'". Section 13 of the amendatory law modified Section 11 of R.A. No. 8436, thus: cSaATC

SEC. 13. Section 11 of Republic Act No. 8436 is hereby amended to read as follows:

"Section 15. Official Ballot. — The Commission shall prescribe the format of the electronic display and/or the size and form of the official ballot, which shall contain the titles of the position to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Where practicable, electronic displays must be constructed to present the names of all candidates for the same position in the same page or screen, otherwise, the electronic displays must be constructed to present the entire ballot to the voter, in a series of sequential pages, and to ensure that the voter sees all of the ballot options on all pages before completing his or her vote and to allow the voter to review and change all ballot choices prior to completing and casting his or her ballot. Under each position to be filled, the names of candidates shall be arranged alphabetically by surname and uniformly indicated using the same type size. The maiden or married name shall be listed in the official ballot, as preferred by the female candidate. Under each proposition to be vote upon, the choices should be uniformly indicated using the same font and size.

"A fixed space where the chairman of the board of election inspectors shall affix his/her signature to authenticate the official ballot shall be provided.

"For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy.

"Political parties may hold political conventions to nominate their official candidates within thirty (30) days before the start of the period for filing a certificate of candidacy.

"With respect to a paper-based election system, the official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens' arms of the Commission shall assign watchers in the printing, storage and distribution of official ballots. HEITAD

"To prevent the use of fake ballots, the Commission through the Committee shall ensure that the necessary safeguards, such as, but not limited to, bar codes, holograms, color shifting ink, microprinting, are provided on the ballot.

"The official ballots shall be printed and distributed to each city/municipality at the rate of one ballot for every registered voter with a provision of additional three ballots per precinct." 3

Pursuant to its constitutional mandate to enforce and administer election laws, COMELEC issued Resolution No. 8678, 4 the Guidelines on the Filing of Certificates of Candidacy (CoC) and Nomination of Official Candidates of Registered Political Parties in Connection with the May 10, 2010 National and Local Elections. Sections 4 and 5 of Resolution No. 8678 provide:

SEC. 4. Effects of Filing Certificates of Candidacy. — a) Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

b) Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for the same or any other elective office or position.

SEC. 5. Period for filing Certificate of Candidacy. — The certificate of candidacy shall be filed on regular days, from November 20 to 30, 2009, during office hours, except on the last day, which shall be until midnight.

Alarmed that they will be deemed ipso facto resigned from their offices the moment they file their CoCs, petitioners Eleazar P. Quinto and Gerino A. Tolentino, Jr., who hold appointive positions in the government and who intend to run in the coming elections, 5 filed the instant petition for prohibition and certiorari, seeking the declaration of the afore-quoted Section 4 (a) of Resolution No. 8678 as null and void. 

The Petitioners' Contention

Petitioners contend that the COMELEC gravely abused its discretion when it issued the assailed Resolution. They aver that the advance filing of CoCs for the 2010 elections is intended merely for the purpose of early printing of the official ballots in order to cope with time limitations. Such advance filing does not automatically make the person who filed the CoC a candidate at the moment of filing. In fact, the law considers him a candidate only at the start of the campaign period. Petitioners then assert that this being so, they should not be deemed ipso facto resigned from their government offices when they file their CoCs, because at such time they are not yet treated by law as candidates. They should be considered resigned from their respective offices only at the start of the campaign period when they are, by law, already considered as candidates. 6 ECaHSI

Petitioners also contend that Section 13 of R.A. No. 9369, the basis of the assailed COMELEC resolution, contains two conflicting provisions. These must be harmonized or reconciled to give effect to both and to arrive at a declaration that they are not ipso facto resigned from their positions upon the filing of their CoCs. 7

Petitioners further posit that the provision considering them as ipso facto resigned from office upon the filing of their CoCs is discriminatory and violates the equal protection clause in the Constitution. 8

The Respondent's Arguments

On the procedural aspect of the petition, the Office of the Solicitor General (OSG), representing respondent COMELEC, argues that petitioners have no legal standing to institute the suit. Petitioners have not yet filed their CoCs, hence, they are not yet affected by the assailed provision in the COMELEC resolution. The OSG further claims that the petition is premature or unripe for judicial determination. Petitioners have admitted that they are merely planning to file their CoCs for the coming 2010 elections. Their interest in the present controversy is thus merely speculative and contingent upon the filing of the same. The OSG likewise contends that petitioners availed of the wrong remedy. They are questioning an issuance of the COMELEC made in the exercise of the latter's rule-making power.  Certiorari under Rule 65 is then an improper remedy. 9

On the substantive aspect, the OSG maintains that the COMELEC did not gravely abuse its discretion in phrasing Section 4 (a) of Resolution No. 8678 for it merely copied what is in the law. The OSG, however, agrees with petitioners that there is a conflict in Section 13 of R.A. No. 9369 that should be resolved. According to the OSG, there seems to be no basis to consider appointive officials as ipso facto resigned and to require them to vacate their positions on the same day that they file their CoCs, because they are not yet considered as candidates at that time. Further, this "deemed resigned" provision

existed in Batas Pambansa Bilang (B.P. Blg.) 881, and no longer finds a place in our present election laws with the innovations brought about by the automated system. 10

Our RulingI.

At first glance, the petition suffers from an incipient procedural defect. What petitioners assail in their petition is a resolution issued by the COMELEC in the exercise of its quasi-legislative power. Certiorari under Rule 65, in relation to Rule 64, cannot be availed of, because it is a remedy to question decisions, resolutions and issuances made in the exercise of a judicial or quasi-judicial function. 11 Prohibition is also an inappropriate remedy, because what petitioners actually seek from the Court is a determination of the proper construction of a statute and a declaration of their rights thereunder. Obviously, their petition is one for declaratory relief, 12 over which this Court does not exercise original jurisdiction. 13 aTICAc

However, petitioners raise a challenge on the constitutionality of the questioned provisions of both the COMELEC resolution and the law. Given this scenario, the Court may step in and resolve the instant petition.

The transcendental nature and paramount importance of the issues raised and the compelling state interest involved in their early resolution — the period for the filing of CoCs for the 2010 elections has already started and hundreds of civil servants intending to run for elective offices are to lose their employment, thereby causing imminent and irreparable damage to their means of livelihood and, at the same time, crippling the government's manpower — further dictate that the Court must, for propriety, if only from a sense of obligation, entertain the petition so as to expedite the adjudication of all, especially the constitutional, issues.

In any event, the Court has ample authority to set aside errors of practice or technicalities of procedure and resolve the merits of a case. Repeatedly stressed in our prior decisions is the principle that the Rules were promulgated to provide guidelines for the orderly administration of justice, not to shackle the hand that dispenses it. Otherwise, the courts would be consigned to being mere slaves to technical rules, deprived of their judicial discretion. 14

II.

To put things in their proper perspective, it is imperative that we trace the brief history of the assailed provision. Section 4 (a) of COMELEC Resolution No. 8678 is a reproduction of the second proviso in the third paragraph of Section 13 of R.A. No. 9369, which for ready reference is quoted as follows:

For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy. 15

Notably, this proviso is not present in Section 11 of R.A. No. 8436, the law amended by R.A. No. 9369. The proviso was lifted from Section 66 of B.P. Blg. 881 or the Omnibus Election Code (OEC) of the Philippines, which reads:

Sec. 66. Candidates holding appointive office or position. — Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. acCTSE

It may be recalled — in inverse chronology — that earlier, Presidential Decree No. 1296, or the 1978 Election Code, contained a similar provision, thus —

SECTION 29. Candidates holding appointive office or position. — Every person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall ipso facto cease in his

office or position on the date he files his certificate of candidacy. Members of the Cabinet shall continue in the offices they presently hold notwithstanding the filing of certificate of candidacy, subject to the pleasure of the President of the Philippines.

Much earlier, R.A. No. 6388, or the Election Code of 1971, likewise stated in its Section 23 the following:

SECTION 23. Candidates Holding Appointive Office or Position. — Every person holding a public appointive office or position, including active members of the Armed Forces of the Philippines and every officer or employee in government-owned or controlled corporations, shall ipso facto cease in his office or position on the date he files his certificate of candidacy: Provided, That the filing of a certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which he may have incurred.

Going further back in history, R.A. No. 180, or the Revised Election Code approved on June 21, 1947, also provided that —

SECTION 26. Automatic cessation of appointive officers and employees who are candidates. — Every person holding a public appointive office or position shall ipso facto cease in his office or position on the date he files his certificate of candidacy.

During the Commonwealth era, Commonwealth Act (C.A.) No. 725, entitled "AN ACT TO PROVIDE FOR THE NEXT ELECTION FOR PRESIDENT AND VICE-PRESIDENT OF THE PHILIPPINES, SENATORS AND MEMBERS OF THE HOUSE OF REPRESENTATIVES, AND APPROPRIATING THE NECESSARY FUNDS THEREFOR", approved on January 5, 1946, contained, in the last paragraph of its Section 2, the following:

A person occupying any civil office by appointment in the government or any of its political subdivisions or agencies or government-owned or controlled corporations, whether such office by appointive or elective, shall be considered to have resigned from such office from the moment of the filing of such certificate of candidacy.

Significantly, however, C.A. No. 666, entitled "AN ACT TO PROVIDE FOR THE FIRST ELECTION FOR PRESIDENT AND VICE-PRESIDENT OF THE PHILIPPINES, SENATORS, AND MEMBERS OF THE HOUSE OF REPRESENTATIVES, UNDER THE CONSTITUTION AND THE AMENDMENTS THEREOF", enacted without executive approval on June 22, 1941, the precursor of C.A. No. 725, only provided for automatic resignation of elective, but not appointive, officials. cCaDSA

Nevertheless, C.A. No. 357, or the Election Code approved on August 22, 1938, had, in its Section 22, the same verbatim provision as Section 26 of R.A. No. 180. 

The earliest recorded Philippine law on the subject is Act No. 1582, or the Election Law enacted by the Philippine Commission in 1907, the last paragraph of Section 29 of which reads:

Sec. 29. Penalties upon officers. — . . . .

No public officer shall offer himself as a candidate for election, nor shall he be eligible during the time that he holds said public office to election, at any municipal, provincial or Assembly election, except for reelection to the position which he may be holding, and no judge of the Court of First Instance, justice of the peace, provincial fiscal, or officer or employee of the Bureau of Constabulary or of the Bureau of Education shall aid any candidate or influence in any manner or take any part in any municipal, provincial, or Assembly election under penalty of being deprived of his office and being disqualified to hold any public office whatever for a term of five years:  Provided, however, That the foregoing provisions shall not be construed to deprive any person otherwise qualified of the right to vote at any election.

From this brief historical excursion, it may be gleaned that the second proviso in the third paragraph of Section 13 of R.A. No. 9369 — that any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy — traces its roots to the period of the American occupation.

In fact, during the deliberations of Senate Bill No. 2231, the bill later to be consolidated with House Bill No. 5352 and enacted as R.A. No. 9369, Senator Richard Gordon, the principal author of the bill, acknowledged that the said proviso in the proposed legislative measure is an old provision which was merely copied from earlier existing legislation, thus —

Senator Osmeña.

May I just opine here and perhaps obtain the opinion of the good Sponsor. This reads like, "ANY PERSON HOLDING [means currently] A PUBLIC APPOINTIVE POSITION. . . SHALL BE CONSIDERED IPSO FACTO RESIGNED" [which means that the prohibition extends only to appointive officials] "INCLUDING ACTIVE MEMBERS OF THE ARMED FORCES, OFFICERS AND EMPLOYEES". . . This is a prohibition, Mr. President. This means if one is chairman of SSS or PDIC, he is deemed ipso facto resigned when he files his certificate of candidacy. Is that the intention?

Senator Gordon.

This is really an old provision, Mr. President.

Senator Osmeña.

It is in bold letters, so I think it was a Committee amendment. DAcSIC

Senator Gordon.

No, it has always been there.

Senator Osmeña.

I see.

Senator Gordon.

I guess the intention is not to give them undue advantage, especially certain people.

Senator Osmeña.

All right. 16

In that Senate deliberation, however, Senator Miriam Defensor-Santiago expressed her concern over the inclusion of the said provision in the new law, given that the same would be disadvantageous and unfair to potential candidates holding appointive positions, while it grants a consequent preferential treatment to elective officials, thus —

Senator Santiago. On page 15, line 31, I know that this is a losing cause, so I make this point more as a matter of record than of any feasible hope that it can possibly be either accepted or if we come to a division of the House, it will be upheld by the majority.

I am referring to page 15, line 21. The proviso begins: "PROVIDED FINALLY, THAT ANY PERSON HOLDING A PUBLIC APPOINTIVE OFFICE. . .SHALL BE CONSIDERED IPSO FACTO RESIGNED FROM HIS/HER OFFICE".

The point that I made during the appropriate debate in the past in this Hall is that there is, for me, no valid reason for exempting elective officials from this inhibition or disqualification imposed by the law. If we are going to consider appointive officers of the government, including AFP members and officers of government-owned and controlled corporations, or any other member of the appointive sector of the civil service, why should it not apply to the elective sector for, after all, even senators and congressmen are members of the civil service as well?

Further, it is self-serving for the Senate, or for the Congress in general, to give an exception to itself which is not available to other similarly situated officials of government. Of course, the answer is, the reason why we are special is that we are elected. Since we are imposing a disqualification on all other government officials except ourselves, I think, it is the better part of  delicadeza to inhibit ourselves as well, so that if we want to stay as senators, we wait until our term expires. But if we want to run for some other elective office during our term, then we have to be considered resigned just like everybody else. That is my proposed amendment. But if it is unacceptable to the distinguished Sponsor, because of sensitivity to the convictions of the rest of our colleagues, I will understand.

Senator Gordon. Mr. President, I think the suggestion is well-thought of. It is a good policy. However, this is something that is already in the old law which was upheld by the Supreme court in a recent case that the rider was not upheld and that it was valid. 17

The obvious inequality brought about by the provision on automatic resignation of appointive civil servants must have been the reason why Senator Recto proposed the inclusion of the following during the period of amendments: "ANY PERSON WHO FILES HIS CERTIFICATE OF CANDIDACY WITHIN THIS PERIOD SHALL ONLY BE CONSIDERED AS A CANDIDATE AT THE START OF THE CAMPAIGN PERIOD FOR WHICH HE FILED HIS COC". 18 The said proviso seems to mitigate the situation of disadvantage afflicting appointive officials by considering persons who filed their CoCs as candidates only at the start of the campaign period, thereby, conveying the tacit intent that persons holding appointive positions will only be considered as resigned at the start of the campaign period when they are already treated by law as candidates.

Parenthetically, it may be remembered that Section 67 of the OEC and Section 11 of R.A. No. 8436 contained a similar provision on automatic resignation of elective officials upon the filing of their CoCs for any office other than that which they hold in a permanent capacity or for President or Vice-President. However, with the enactment of R.A. No. 9006, or the Fair Election Act, 19 in 2001, this provision was repealed by Section 14 20 of the said act. There was, thus, created a situation of obvious discrimination against appointive officials who were deemed ipso facto resigned from their offices upon the filing of their CoCs, while elective officials were not. EcAHDT

This situation was incidentally addressed by the Court in Fariñas v. The Executive Secretary 21 when it ruled that —

Section 14 of Rep. Act No. 9006Is Not Violative of the EqualProtection Clause of the Constitution

The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous.

The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner:

The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not.

Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority.

Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority.

Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities.

By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification. TEHIaA 

Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-a-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed. 22

However, it must be remembered that the Court, in Fariñas, was intently focused on the main issue of whether the repealing clause in the Fair Election Act was a constitutionally proscribed rider, in that it unwittingly failed to ascertain with stricter scrutiny the impact of the retention of the provision on automatic resignation of persons holding appointive positions (Section 66) in the OEC, vis-à-vis the equal protection clause. Moreover, the Court's vision in Fariñas was shrouded by the fact that petitioners therein, Fariñas et al., never posed a direct challenge to the constitutionality of Section 66 of the OEC. Fariñas et al. rather merely questioned, on constitutional grounds, the repealing clause, or Section 14 of the Fair Election Act. The Court's afore-quoted declaration inFariñas may then very well be considered as an obiter dictum.

III.

The instant case presents a rare opportunity for the Court, in view of the constitutional challenge advanced by petitioners, once and for all, to settle the issue of whether the second proviso in the third paragraph of Section 13 of R.A. No. 9369, a reproduction of Section 66 of the OEC, which, as shown above, was based on provisions dating back to the American occupation, is violative of the equal protection clause.

But before delving into the constitutional issue, we shall first address the issues on legal standing and on the existence of an actual controversy.

Central to the determination of locus standi is the question of whether a party has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. 23 In this case, petitioners allege that they will be directly affected by COMELEC Resolution No. 8678 for they intend, and they all have the qualifications, to run in the 2010 elections. The OSG, for its part, contends that since petitioners have not yet filed their CoCs, they are not yet candidates; hence, they are not yet directly affected by the assailed provision in the COMELEC resolution.

The Court, nevertheless, finds that, while petitioners are not yet candidates, they have the standing to raise the constitutional challenge, simply because they are qualified voters. A restriction on candidacy, such as the challenged measure herein, affects the rights of voters to choose their public officials. The rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters. 24 The Court believes that both candidates and voters may challenge, on grounds of equal protection, the assailed measure because of its impact on voting rights. 25 DcHSEa

In any event, in recent cases, this Court has relaxed the stringent direct injury test and has observed a liberal policy allowing ordinary citizens, members of Congress, and civil organizations to prosecute actions involving the constitutionality or validity of laws, regulations and rulings. 26

We have also stressed in our prior decisions that the exercise by this Court of judicial power is limited to the determination and resolution of actual cases and controversies. 27 The Court, in this case, finds that an actual case or

controversy exists between the petitioners and the COMELEC, the body charged with the enforcement and administration of all election laws. Petitioners have alleged in a precise manner that they would engage in the very acts that would trigger the enforcement of the provision — they would file their CoCs and run in the 2010 elections. Given that the assailed provision provides for ipso facto resignation upon the filing of the CoC, it cannot be said that it presents only a speculative or hypothetical obstacle to petitioners' candidacy. 28

IV.

Having hurdled what the OSG posed as obstacles to judicial review, the Court now delves into the constitutional challenge.

It is noteworthy to point out that the right to run for public office touches on two fundamental freedoms, those of expression and of association. This premise is best explained inMancuso v. Taft, 29 viz.:

Freedom of expression guarantees to the individual the opportunity to write a letter to the local newspaper, speak out in a public park, distribute handbills advocating radical reform, or picket an official building to seek redress of grievances. All of these activities are protected by the First Amendment if done in a manner consistent with a narrowly defined concept of public order and safety. The choice of means will likely depend on the amount of time and energy the individual wishes to expend and on his perception as to the most effective method of projecting his message to the public. But interest and commitment are evolving phenomena. What is an effective means for protest at one point in time may not seem so effective at a later date. The dilettante who participates in a picket line may decide to devote additional time and resources to his expressive activity. As his commitment increases, the means of effective expression changes, but the expressive quality remains constant. He may decide to lead the picket line, or to publish the newspaper. At one point in time he may decide that the most effective way to give expression to his views and to get the attention of an appropriate audience is to become a candidate for public office-means generally considered among the most appropriate for those desiring to effect change in our governmental systems. He may seek to become a candidate by filing in a general election as an independent or by seeking the nomination of a political party. And in the latter instance, the individual's expressive activity has two dimensions: besides urging that his views be the views of the elected public official, he is also attempting to become a spokesman for a political party whose substantive program extends beyond the particular office in question. But Cranston has said that a certain type of its citizenry, the public employee, may not become a candidate and may not engage in any campaign activity that promotes himself as a candidate for public office. Thus the city has stifled what may be the most important expression an individual can summon, namely that which he would be willing to effectuate, by means of concrete public action, were he to be selected by the voters. aEAcHI

It is impossible to ignore the additional fact that the right to run for office also affects the freedom to associate. In Williams v. Rhodes, supra, the Court used strict review to invalidate an Ohio election system that made it virtually impossible for third parties to secure a place on the ballot. The Court found that the First Amendment protected the freedom to associate by forming and promoting a political party and that that freedom was infringed when the state effectively denied a party access to its electoral machinery. The Cranston charter provision before us also affects associational rights, albeit in a slightly different way. An individual may decide to join or participate in an organization or political party that shares his beliefs. He may even form a new group to forward his ideas. And at some juncture his supporters and fellow party members may decide that he is the ideal person to carry the group's standard into the electoral fray. To thus restrict the options available to political organization as the Cranston charter provision has done is to limit the effectiveness of association; and the freedom to associate is intimately related with the concept of making expression effective. Party access to the ballot becomes less meaningful if some of those selected by party machinery to carry the party's programs to the people are precluded from doing so because those nominees are civil servants.

Whether the right to run for office is looked at from the point of view of individual expression or associational effectiveness, wide opportunities exist for the individual who seeks public office. The fact of candidacy alone may open previously closed doors of the media. The candidate may be invited to discuss his views on radio talk shows; he may be able to secure equal time on television to elaborate his campaign program; the newspapers may cover his candidacy; he may be invited to debate before various groups that had theretofore never heard of him or his views. In short, the fact of candidacy opens up a variety of communicative possibilities that are not available to even the most diligent of picketers or the most loyal of party followers. A view today, that running for public office is not an interest protected by the First Amendment, seems to us an outlook stemming from an

earlier era when public office was the preserve of the professional and the wealthy. Consequently we hold that candidacy is both a protected First Amendment right and a fundamental interest. Hence any legislative classification that significantly burdens that interest must be subjected to strict equal protection review. 30EAISDH

Here, petitioners' interest in running for public office, an interest protected by Sections 4 and 8 of Article III of the Constitution, is breached by the proviso in Section 13 of R.A. No. 9369. It is now the opportune time for the Court to strike down the said proviso for being violative of the equal protection clause and for being overbroad.

In considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their CoCs, but not considering as resigned all other civil servants, specifically the elective ones, the law unduly discriminates against the first class. The fact alone that there is substantial distinction between those who hold appointive positions and those occupying elective posts, does not justify such differential treatment. 

In order that there can be valid classification so that a discriminatory governmental act may pass the constitutional norm of equal protection, it is necessary that the four (4) requisites of valid classification be complied with, namely:

(1) It must be based upon substantial distinctions;

(2) It must be germane to the purposes of the law;

(3) It must not be limited to existing conditions only; and

(4) It must apply equally to all members of the class.

The first requirement means that there must be real and substantial differences between the classes treated differently. As illustrated in the fairly recent Mirasol v. Department of Public Works and Highways, 31 a real and substantial distinction exists between a motorcycle and other motor vehicles sufficient to justify its classification among those prohibited from plying the toll ways. Not all motorized vehicles are created equal — a two-wheeled vehicle is less stable and more easily overturned than a four-wheel vehicle.

Nevertheless, the classification would still be invalid if it does not comply with the second requirement — if it is not germane to the purpose of the law. Justice Isagani A. Cruz (Ret.), in his treatise on constitutional law, explains,

The classification, even if based on substantial distinctions, will still be invalid if it is not germane to the purpose of the law. To illustrate, the accepted difference in physical stamina between men and women will justify the prohibition of the latter from employment as miners or stevedores or in other heavy and strenuous work. On the basis of this same classification, however, the law cannot provide for a lower passing average for women in the bar examinations because physical strength is not the test for admission to the legal profession. Imported cars may be taxed at a higher rate than locally assembled automobiles for the protection of the national economy, but their difference in origin is no justification for treating them differently when it comes to punishing violations of traffic regulations. The source of the vehicle has no relation to the observance of these rules.32 DHIaTS

The third requirement means that the classification must be enforced not only for the present but as long as the problem sought to be corrected continues to exist. And, under the last requirement, the classification would be regarded as invalid if all the members of the class are not treated similarly, both as to rights conferred and obligations imposed. 33

Applying the four requisites to the instant case, the Court finds that the differential treatment of persons holding appointive offices as opposed to those holding elective ones is not germane to the purposes of the law.

The obvious reason for the challenged provision is to prevent the use of a governmental position to promote one's candidacy, or even to wield a dangerous or coercive influence on the electorate. The measure is further aimed at promoting the efficiency, integrity, and discipline of the public service by eliminating the danger that the discharge of official duty would be motivated by political considerations rather than the welfare of the public. 34 The restriction is also justified by the proposition that the entry of civil servants to the electoral arena, while still in office, could result in neglect or inefficiency in the performance of duty because they would be attending to their campaign rather than to their office work.

If we accept these as the underlying objectives of the law, then the assailed provision cannot be constitutionally rescued on the ground of valid classification. Glaringly absent is the requisite that the classification must be germane to the purposes of the law. Indeed, whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain. For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the same influence as the Vice-President who at the same time is appointed to a Cabinet post (in the recent past, elected Vice-Presidents were appointed to take charge of national housing, social welfare development, interior and local government, and foreign affairs). With the fact that they both head executive offices, there is no valid justification to treat them differently when both file their CoCs for the elections. Under the present state of our law, the Vice-President, in the example, running this time, let us say, for President, retains his position during the entire election period and can still use the resources of his office to support his campaign.

As to the danger of neglect, inefficiency or partisanship in the discharge of the functions of his appointive office, the inverse could be just as true and compelling. The public officer who files his certificate of candidacy would be driven by a greater impetus for excellent performance to show his fitness for the position aspired for.

Mancuso v. Taft, 35 cited above, explains that the measure on automatic resignation, which restricts the rights of civil servants to run for office — a right inextricably linked to their freedom of expression and association, is not reasonably necessary to the satisfaction of the state interest. Thus, in striking down a similar measure in the United States, Mancusosuccinctly declares —

In proceeding to the second stage of active equal protection review, however, we do see some contemporary relevance of the Mitchell decision. National Ass'n of Letter Carriers, supra. In order for the Cranston charter provision to withstand strict scrutiny, the city must show that the exclusion of all government employees from candidacy is necessary to achieve a compelling state interest. And, as stated in Mitchell and other cases dealing with similar statutes, see Wisconsin State Employees, supra; Broadrick, supra, government at all levels has a substantial interest in protecting the integrity of its civil service. It is obviously conceivable that the impartial character of the civil service would be seriously jeopardized if people in positions of authority used their discretion to forward their electoral ambitions rather than the public welfare. Similarly if a public employee pressured other fellow employees to engage in corrupt practices in return for promises of post-election reward, or if an employee invoked the power of the office he was seeking to extract special favors from his superiors, the civil service would be done irreparable injury. Conversely, members of the public, fellow-employees, or supervisors might themselves request favors from the candidate or might improperly adjust their own official behavior towards him. Even if none of these abuses actually materialize, the possibility of their occurrence might seriously erode the public's confidence in its public employees. For the reputation of impartiality is probably as crucial as the impartiality itself; the knowledge that a clerk in the assessor's office who is running for the local zoning board has access to confidential files which could provide "pressure" points for furthering his campaign is destructive regardless of whether the clerk actually takes advantage of his opportunities. For all of these reasons we find that the state indeed has a compelling interest in maintaining the honesty and impartiality of its public work force. HTaSEA

We do not, however, consider the exclusionary measure taken by Cranston-a flat prohibition on office-seeking of all kinds by all kinds of public employees-as even reasonably necessary to satisfaction of this state interest. As Justice Marshall pointed out in Dunn v. Blumstein, "[s]tatutes affecting constitutional rights must be drawn with 'precision'". For three sets of reasons we conclude that the Cranston charter provision pursues its objective in a far too heavy-handed manner and hence must fall under the equal protection clause. First, we think the nature of the regulation-a broad prophylactic rule-may be unnecessary to fulfillment of the city's objective. Second, even granting some sort of prophylactic rule may be required, the provision here prohibits candidacies for all types of public office, including many which would pose none of the problems at which the law is aimed. Third, the provision excludes the candidacies of all types of public employees, without any attempt to limit exclusion to those employees whose positions make them vulnerable to corruption and conflicts of interest.

There is thus no valid justification to treat appointive officials differently from the elective ones. The classification simply fails to meet the test that it should be germane to the purposes of the law. The measure encapsulated in the second proviso of the third paragraph of Section 13 of R.A. No. 9369 and in Section 66 of the OEC violates the equal protection clause.

V.

The challenged provision also suffers from the infirmity of being overbroad.

First, the provision pertains to all civil servants holding appointive posts without distinction as to whether they occupy high positions in government or not. Certainly, a utility worker in the government will also be considered as  ipso facto resigned once he files his CoC for the 2010 elections. This scenario is absurd for, indeed, it is unimaginable how he can use his position in the government to wield influence in the political world.

While it may be admitted that most appointive officials who seek public elective office are those who occupy relatively high positions in government, laws cannot be legislated for them alone, or with them alone in mind. For the right to seek public elective office is universal, open and unrestrained, subject only to the qualification standards prescribed in the Constitution and in the laws. These qualifications are, as we all know, general and basic so as to allow the widest participation of the citizenry and to give free rein for the pursuit of one's highest aspirations to public office. Such is the essence of democracy. 

Second, the provision is directed to the activity of seeking any and all public offices, whether they be partisan or nonpartisan in character, whether they be in the national, municipal or barangay level. Congress has not shown a compelling state interest to restrict the fundamental right involved on such a sweeping scale. 36 cCAaHD

Specific evils require specific treatments, not through overly broad measures that unduly restrict guaranteed freedoms of the citizenry. After all, sovereignty resides in the people, and all governmental power emanates from them.

Mancuso v. Taft, 37 on this point, instructs —

As to approaches less restrictive than a prophylactic rule, there exists the device of the leave of absence. Some system of leaves of absence would permit the public employee to take time off to pursue his candidacy while assuring him his old job should his candidacy be unsuccessful. Moreover, a leave of absence policy would eliminate many of the opportunities for engaging in the questionable practices that the statute is designed to prevent. While campaigning, the candidate would feel no conflict between his desire for election and his publicly entrusted discretion, nor any conflict between his efforts to persuade the public and his access to confidential documents. But instead of adopting a reasonable leave of absence policy, Cranston has chosen a provision that makes the public employee cast off the security of hard-won public employment should he desire to compete for elected office.

The city might also promote its interest in the integrity of the civil service by enforcing, through dismissal, discipline, or criminal prosecution, rules or statutes that treat conflict of interests, bribery, or other forms of official corruption. By thus attacking the problem directly, instead of using a broad prophylactic rule, the city could pursue its objective without unduly burdening the First Amendment rights of its employees and the voting rights of its citizens. Last term in Dunn v. Blumstein, the Supreme Court faced an analogous question when the State of Tennessee asserted that the interest of "ballot box purity" justified its imposition of one year and three month residency requirements before a citizen could vote. Justice Marshall stated, inter alia, that Tennessee had available a number of criminal statutes that could be used to punish voter fraud without unnecessary infringement on the newcomer's right to vote. Similarly, it appears from the record in this case that the Cranston charter contains some provisions that might be used against opportunistic public employees.

Even if some sort of prophylactic rule is necessary, we cannot say that Cranston has put much effort into tailoring a narrow provision that attempts to match the prohibition with the problem. The charter forbids a Cranston public employee from running for any office, anywhere. The prohibition is not limited to the local offices of Cranston, but rather extends to statewide offices and even to national offices. It is difficult for us to see that a public employee running for the United States Congress poses quite the same threat to the civil service as would the same employee if he were running for a local office where the contacts and information provided by his job related directly to the position he was seeking, and hence where the potential for various abuses was greater. Nor does the Cranston charter except the public employee who works in Cranston but aspires to office in another local jurisdiction, most probably his town of residence. Here again the charter precludes candidacies which can pose only a remote threat to the civil service. Finally, the charter does not limit its prohibition to partisan office-seeking, but sterilizes also those public employees who would seek nonpartisan elective office. The statute reviewed in Mitchell was limited to partisan political activity, and since that time other courts have found the partisan-nonpartisan distinction a material one. See Kinnear, supra; Wisconsin State Employees, supra; Gray v. Toledo, supra. While the line

between nonpartisan and partisan can often be blurred by systems whose true characters are disguised by the names given them by their architects, it seems clear that the concerns of a truly partisan office and the temptations it fosters are sufficiently different from those involved in an office removed from regular party politics to warrant distinctive treatment in a charter of this sort. ScEaAD

The third and last area of excessive and overinclusive coverage of the Cranston charter relates not to the type of office sought, but to the type of employee seeking the office. As Justice Douglas pointed out in his dissent in Mitchell, 330 U.S. at 120-126, 67 S.Ct. 556, restrictions on administrative employees who either participate in decision-making or at least have some access to information concerning policy matters are much more justifiable than restrictions on industrial employees, who, but for the fact that the government owns the plant they work in, are, for purposes of access to official information, identically situated to all other industrial workers. Thus, a worker in the Philadelphia mint could be distinguished from a secretary in an office of the Department of Agriculture; so also could a janitor in the public schools of Cranston be distinguished from an assistant comptroller of the same city. A second line of distinction that focuses on the type of employee is illustrated by the cases of Kinnear and Minielly, supra. In both of these cases a civil service deputy decided to run for the elected office of sheriff. The courts in both cases felt that the no-candidacy laws in question were much too broad and indicated that perhaps the only situation sensitive enough to justify a flat rule was one in which an inferior in a public office electorally challenged his immediate superior. Given all these considerations, we think Cranston has not given adequate attention to the problem of narrowing the terms of its charter to deal with the specific kinds of conflict-of-interest problems it seeks to avoid.

We also do not find convincing the arguments that after-hours campaigning will drain the energy of the public employee to the extent that he is incapable of performing his job effectively and that inevitable on-the-job campaigning and discussion of his candidacy will disrupt the work of others. Although it is indisputable that the city has a compelling interest in the performance of official work, the exclusion is not well-tailored to effectuate that interest. Presumably the city could fire the individual if he clearly shirks his employment responsibilities or disrupts the work of others. Also, the efficiency rationale common to both arguments is significantly underinclusive. It applies equally well to a number of non-political, extracurricular activities that are not prohibited by the Cranston charter. Finally, the connection between after-hours campaigning and the state interest seems tenuous; in many cases a public employee would be able to campaign aggressively and still continue to do his job well. 38

Incidentally, Clements v. Fashing 39 sustained as constitutional a provision on the automatic resignation of District Clerks, County Clerks, County Judges, County Treasurers, Criminal District Attorneys, County Surveyors, Inspectors of Hides and Animals, County Commissioners, Justices of the Peace, Sheriffs, Assessors and Collectors of Taxes, District Attorneys, County Attorneys, Public Weighers, and Constables if they announce their candidacy or if they become candidates in any general, special or primary election.TCHcAE

In Clements, it may be readily observed that a provision treating differently particular officials, as distinguished from all others, under a classification that is germane to the purposes of the law, merits the stamp of approval from American courts. Not, however, a general and sweeping provision, and more so one violative of the second requisite for a valid classification, which is on its face unconstitutional.

On a final note, it may not be amiss to state that the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional. It is high-time that we, too, should follow suit and, thus, uphold fundamental liberties over age-old, but barren, restrictions to such freedoms.

WHEREFORE, premises considered, the petition is GRANTED. The second proviso in the third paragraph of Section 13 of Republic Act No. 9369, Section 66 of the Omnibus Election Code and Section 4 (a) of COMELEC Resolution No. 8678 are declared as UNCONSTITUTIONAL.

EN BANC

[G.R. No. 189698. February 22, 2010.]

ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., petitioners, vs. COMMISSION ON ELECTIONS, respondent.

RESOLUTION

PUNO, C.J p:

Upon a careful review of the case at bar, this Court resolves to grant the respondent Commission on Elections' (COMELEC) motion for reconsideration, and the movants-intervenors' motions for reconsideration-in-intervention, of this Court's December 1, 2009 Decision (Decision). 1

The assailed Decision granted the Petition for Certiorari and Prohibition filed by Eleazar P. Quinto and Gerino A. Tolentino, Jr. and declared as unconstitutional the second proviso in the third paragraph of Section 13 of Republic Act No. 9369, 2 Section 66 of the Omnibus Election Code 3 and Section 4 (a) of COMELEC Resolution No. 8678, 4 mainly on the ground that they violate the equal protection clause of the Constitution and suffer from overbreadth. The assailed Decision thus paved the way for public appointive officials to continue discharging the powers, prerogatives and functions of their office notwithstanding their entry into the political arena.

In support of their respective motions for reconsideration, respondent COMELEC and movants-intervenors submit the following arguments:

(1) The assailed Decision is contrary to, and/or violative of, the constitutional proscription against the participation of public appointive officials and members of the military in partisan political activity;

(2) The assailed provisions do not violate the equal protection clause when they accord differential treatment to elective and appointive officials, because such differential treatment rests on material and substantial distinctions and is germane to the purposes of the law; cDaEAS

(3) The assailed provisions do not suffer from the infirmity of overbreadth; and

(4) There is a compelling need to reverse the assailed Decision, as public safety and interest demand such reversal.

We find the foregoing arguments meritorious.

I.

Procedural Issues

First, we shall resolve the procedural issues on the timeliness of the COMELEC's motion for reconsideration which was filed on December 15, 2009, as well as the propriety of the motions for reconsideration-in-intervention which were filed after the Court had rendered its December 1, 2009 Decision.

i. Timeliness of COMELEC's Motion for Reconsideration

Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court, 5 in relation to Section 1, Rule 52 of the same rules, 6 COMELEC had a period of fifteen days from receipt of notice of the assailed Decision within which to move for its reconsideration. COMELEC received notice of the assailed Decision on December 2, 2009, hence, had until December 17, 2009 to file a Motion for Reconsideration.

The Motion for Reconsideration of COMELEC was timely filed. It was filed on December 14, 2009. The corresponding Affidavit of Service (in substitution of the one originally submitted on December 14, 2009) was subsequently filed on December 17, 2009 — still within the reglementary period.

ii. Propriety of the Motions for Reconsideration-in-Intervention

Section 1, Rule 19 of the Rules of Court provides:

A person who has legal interest in the matter in litigation or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor's rights may be fully protected in a separate proceeding.

Pursuant to the foregoing rule, this Court has held that a motion for intervention shall be entertained when the following requisites are satisfied: (1) the would-be intervenor shows that he has a substantial right or interest in the case; and (2) such right or interest cannot be adequately pursued and protected in another proceeding. 7 SCIacA

Upon the other hand, Section 2, Rule 19 of the Rules of Court provides the time within which a motion for intervention may be filed, viz.:

SECTION 2. Time to intervene. — The motion for intervention may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. (italics supplied)

This rule, however, is not inflexible. Interventions have been allowed even beyond the period prescribed in the Rule, when demanded by the higher interest of justice. Interventions have also been granted to afford indispensable parties, who have not been impleaded, the right to be heard even after a decision has been rendered by the trial court,  8 when the petition for review of the judgment has already been submitted for decision before the Supreme Court, 9 and even where the assailed order has already become final and executory. 10 In Lim v. Pacquing, 11 the motion for intervention filed by the Republic of the Philippines was allowed by this Court to avoid grave injustice and injury and to settle once and for all the substantive issues raised by the parties.

In fine, the allowance or disallowance of a motion for intervention rests on the sound discretion of the court 12 after consideration of the appropriate circumstances. 13 We stress again that Rule 19 of the Rules of Court is a rule of procedure whose object is to make the powers of the court fully and completely available for justice. 14 Its purpose is not to hinder or delay, but to facilitate and promote the administration of justice. 15

We rule that, with the exception of the IBP-Cebu City Chapter, all the movants-intervenors may properly intervene in the case at bar.

First, the movants-intervenors have each sufficiently established a substantial right or interest in the case.

As a Senator of the Republic, Senator Manuel A. Roxas has a right to challenge the December 1, 2009 Decision, which nullifies a long established law; as a voter, he has a right to intervene in a matter that involves the electoral process; and as a public officer, he has a personal interest in maintaining the trust and confidence of the public in its system of government.

On the other hand, former Senator Franklin M. Drilon and Tom V. Apacible are candidates in the May 2010 elections running against appointive officials who, in view of the December 1, 2009 Decision, have not yet resigned from their posts and are not likely to resign from their posts. They stand to be directly injured by the assailed Decision, unless it is reversed.

Moreover, the rights or interests of said movants-intervenors cannot be adequately pursued and protected in another proceeding. Clearly, their rights will be foreclosed if this Court's Decision attains finality and forms part of the laws of the land.

With regard to the IBP-Cebu City Chapter, it anchors its standing on the assertion that "this case involves the constitutionality of elections laws for this coming 2010 National Elections," and that "there is a need for it to be allowed to intervene . . . so that the voice of its members in the legal profession would also be heard before this Highest Tribunal as it resolves issues of transcendental importance." 16 SDHacT

Prescinding from our rule and ruling case law, we find that the IBP-Cebu City Chapter has failed to present a specific and substantial interest sufficient to clothe it with standing to intervene in the case at bar. Its invoked interest is, in character, too indistinguishable to justify its intervention.

We now turn to the substantive issues.

II.

Substantive Issues

The assailed Decision struck down Section 4 (a) of Resolution 8678, the second proviso in the third paragraph of Section 13 of Republic Act (RA) 9369, and Section 66 of the Omnibus Election Code, on the following grounds:

(1) They violate the equal protection clause of the Constitution because of the differential treatment of persons holding appointive offices and those holding elective positions;

(2) They are overbroad insofar as they prohibit the candidacy of all civil servants holding appointive posts: (a) without distinction as to whether or not they occupy high/influential positions in the government, and (b) they limit these civil servants' activity regardless of whether they be partisan or nonpartisan in character, or whether they be in the national, municipal or barangay level; and

(3) Congress has not shown a compelling state interest to restrict the fundamental right of these public appointive officials.

We grant the motions for reconsideration. We now rule that Section 4 (a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369 are not unconstitutional, and accordingly reverse our December 1, 2009 Decision.

III.

Section 4 (a) of COMELEC Resolution 8678 Compliant with Law

Section 4 (a) of COMELEC Resolution 8678 is a faithful reflection of the present state of the law and jurisprudence on the matter, viz.:

Incumbent Appointive Official. — Under Section 13 of RA 9369, which reiterates Section 66 of the Omnibus Election Code, any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or -controlled corporations, shall be consideredipso facto resigned from his office upon the filing of his certificate of candidacy.

Incumbent Elected Official. — Upon the other hand, pursuant to Section 14 of RA 9006 or the Fair Election Act, 17 which repealed Section 67 of the Omnibus Election Code18 and rendered ineffective Section 11 of R.A. 8436 insofar as it considered an elected official as resigned only upon the start of the campaign period corresponding to the positions for which they are running, 19 an elected official is not deemed to have resigned from his office upon the filing of his certificate of candidacy for the same or any other elected office or position. In fine, an elected official may run for another position without forfeiting his seat. ADEHTS 

These laws and regulations implement Section 2 (4), Article IX-B of the 1987 Constitution, which prohibits civil service officers and employees from engaging in any electioneering or partisan political campaign.

The intention to impose a strict limitation on the participation of civil service officers and employees in partisan political campaigns is unmistakable. The exchange between Commissioner Quesada and Commissioner Foz during the deliberations of the Constitutional Commission is instructive:

MS. QUESADA.

xxx xxx xxx

Secondly, I would like to address the issue here as provided in Section 1 (4), line 12, and I quote: "No officer or employee in the civil service shall engage, directly or indirectly, in any partisan political activity." This is almost the same provision as in the 1973 Constitution. However, we in the government service have actually experienced how this provision has been violated by the direct or indirect partisan political activities of many government officials.

So, is the Committee willing to include certain clauses that would make this provision more strict, and which would deter its violation?

MR. FOZ.

Madam President, the existing Civil Service Law and the implementing rules on the matter are more than exhaustive enough to really prevent officers and employees in the public service from engaging in any form of partisan political activity. But the problem really lies in implementation because, if the head of a ministry, and even the superior officers of offices and agencies of government will themselves violate the constitutional injunction against partisan political activity, then no string of words that we may add to what is now here in this draft will really implement the constitutional intent against partisan political activity. . . . 20 (italics supplied)

To emphasize its importance, this constitutional ban on civil service officers and employees is presently reflected and implemented by a number of statutes. Section 46 (b) (26), Chapter 7 and Section 55, Chapter 8 — both of Subtitle A, Title I, Book V of the Administrative Code of 1987 — respectively provide in relevant part:

Section 44. Discipline: General Provisions:

xxx xxx xxx

(b) The following shall be grounds for disciplinary action:

xxx xxx xxx

(26) Engaging directly or indirectly in partisan political activities by one holding a non-political office. TCacIE

xxx xxx xxx

Section 55. Political Activity. — No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of his candidates for public office whom he supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code.

Section 261 (i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further makes intervention by civil service officers and employees in partisan political activities an election offense, viz.:

SECTION 261. Prohibited Acts. — The following shall be guilty of an election offense:

xxx xxx xxx

(i) Intervention of public officers and employees. — Any officer or employee in the civil service, except those holding political offices; any officer, employee, or member of the Armed Forces of the Philippines, or any police force, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who, directly or

indirectly, intervenes in any election campaign or engages in any partisan political activity, except to vote or to preserve public order, if he is a peace officer.

The intent of both Congress and the framers of our Constitution to limit the participation of civil service officers and employees in partisan political activities is too plain to be mistaken.

But Section 2 (4), Article IX-B of the 1987 Constitution and the implementing statutes apply only to civil servants holding apolitical offices. Stated differently, the constitutional ban does not cover elected officials, notwithstanding the fact that "[t]he civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters." 21 This is because elected public officials, by the very nature of their office, engage in partisan political activities almost all year round, even outside of the campaign period. 22 Political partisanship is the inevitable essence of a political office, elective positions included. 23

The prohibition notwithstanding, civil service officers and employees are allowed to vote, as well as express their views on political issues, or mention the names of certain candidates for public office whom they support. This is crystal clear from the deliberations of the Constitutional Commission, viz.:

MS. AQUINO:

Mr. Presiding Officer, my proposed amendment is on page 2, Section 1, subparagraph 4, lines 13 and 14. On line 13, between the words "any" and "partisan," add the phrase ELECTIONEERING AND OTHER; and on line 14, delete the word "activity" and in lieu thereof substitute the word CAMPAIGN. AaITCS

May I be allowed to explain my proposed amendment?

THE PRESIDING OFFICER (Mr. Treñas):

Commissioner Aquino may proceed.

MS. AQUINO:

The draft as presented by the Committee deleted the phrase "except to vote" which was adopted in both the 1935 and 1973 Constitutions. The phrase "except to vote" was not intended as a guarantee to the right to vote but as a qualification of the general prohibition against taking part in elections.

Voting is a partisan political activity. Unless it is explicitly provided for as an exception to this prohibition, it will amount to disenfranchisement. We know that suffrage, although plenary, is not an unconditional right. In other words, the Legislature can always pass a statute which can withhold from any class the right to vote in an election, if public interest so required. I would only like to reinstate the qualification by specifying the prohibited acts so that those who may want to vote but who are likewise prohibited from participating in partisan political campaigns or electioneering may vote.

MR. FOZ:

There is really no quarrel over this point, but please understand that there was no intention on the part of the Committee to disenfranchise any government official or employee. The elimination of the last clause of this provision was precisely intended to protect the members of the civil service in the sense that they are not being deprived of the freedom of expression in a political contest. The last phrase or clause might have given the impression that a government employee or worker has no right whatsoever in an election campaign except to vote, which is not the case. They are still free to express their views although the intention is not really to allow them to take part actively in a political campaign. 24

IV.

Section 4(a) of Resolution 8678, Section 13 of RA 9369, andSection 66 of the Omnibus Election Code Do Not Violate theEqual Protection Clause

We now hold that Section 4 (a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369 are not violative of the equal protection clause of the Constitution. DcTSHa

i. Fariñas, et al. v. Executive Secretary, et al. is Controlling

In truth, this Court has already ruled squarely on whether these deemed-resigned provisions challenged in the case at bar violate the equal protection clause of the Constitution inFariñas, et al. v. Executive Secretary, et al. 25

In Fariñas, the constitutionality of Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, was assailed on the ground, among others, that it unduly discriminates against appointive officials. As Section 14 repealed Section 67 (i.e., the deemed-resigned provision in respect of elected officials) of the Omnibus Election Code, elected officials are no longer considered ipso facto resigned from their respective offices upon their filing of certificates of candidacy. In contrast, since Section 66 was not repealed, the limitation on appointive officials continues to be operative — they are deemed resigned when they file their certificates of candidacy.

The petitioners in Fariñas thus brought an equal protection challenge against Section 14, with the end in view of having the deemed-resigned provisions "apply equally" to both elected and appointive officials. We held, however, that the legal dichotomy created by the Legislature is a reasonable classification, as there are material and significant distinctions between the two classes of officials. Consequently, the contention that Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, infringed on the equal protection clause of the Constitution, failed muster. We ruled:

The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous.

The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner: 

The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not. ADTEaI

Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority.

Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take (sic) part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities.

By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification.

Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-à-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed. 26

The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our assailed Decision gave it new life. We ought to be guided by the doctrine of stare decisis et non quieta movere. This doctrine, which is really "adherence to precedents," mandates that once a case has been decided one way, then another case involving exactly the same point at issue should be decided in the same manner. 27 This doctrine is one of policy grounded on the necessity for securing certainty and stability of judicial decisions. As the renowned jurist Benjamin Cardozo stated in his treatise The Nature of the Judicial Process:

It will not do to decide the same question one way between one set of litigants and the opposite way between another. "If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights." Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts. 28 CaHAcT

Our Fariñas ruling on the equal protection implications of the deemed-resigned provisions cannot be minimalized as mere obiter dictum. It is trite to state that an adjudication on any point within the issues presented by the case cannot be considered as obiter dictum. 29 This rule applies to all pertinent questions that are presented and resolved in the regular course of the consideration of the case and lead up to the final conclusion, and to any statement as to the matter on which the decision is predicated. 30 For that reason, a point expressly decided does not lose its value as a precedent because the disposition of the case is, or might have been, made on some other ground; or even though, by reason of other points in the case, the result reached might have been the same if the court had held, on the particular point, otherwise than it did. 31 As we held in Villanueva, Jr. v. Court of Appeals, et al.: 32

. . . A decision which the case could have turned on is not regarded as obiter dictum merely because, owing to the disposal of the contention, it was necessary to consider another question, nor can an additional reason in a decision, brought forward after the case has been disposed of on one ground, be regarded as dicta. So, also, where a case presents two (2) or more points, any one of which is sufficient to determine the ultimate issue, but the court actually decides all such points,  the case as an authoritative precedent as to every point decided, and none of such points can be regarded as having the status of a dictum, and one point should not be denied authority merely because another point was more dwelt on and more fully argued and considered, nor does a decision on one proposition make statements of the court regarding other propositions dicta. 33 (italics supplied)

ii. Classification Germane to the Purposes of the Law

The Fariñas ruling on the equal protection challenge stands on solid ground even if reexamined.

To start with, the equal protection clause does not require the universal application of the laws to all persons or things without distinction. 34 What it simply requires is equality among equals as determined according to a valid classification. 35 The test developed by jurisprudence here and yonder is that of reasonableness, 36 which has four requisites:

(1) The classification rests on substantial distinctions;

(2) It is germane to the purposes of the law;

(3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class. 37

Our assailed Decision readily acknowledged that these deemed-resigned provisions satisfy the first, third and fourth requisites of reasonableness. It, however, proffers the dubious conclusion that the differential treatment of appointive officials vis-à-vis elected officials is not germane to the purpose of the law, because "whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain," viz.: SCEDaT

. . . For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the same influence as the Vice-President who at the same time is appointed to a Cabinet post (in the recent past, elected Vice-Presidents were appointed to take charge of national housing, social welfare development, interior and local government, and foreign affairs). With the fact that they both head executive offices, there is no valid justification to treat them differently when both file their [Certificates of Candidacy] for the elections. Under the present state of our law, the Vice-President, in the example, running this time, let us say, for President, retains his position during the entire election period and can still use the resources of his office to support his campaign. 38

Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice, the Legislature need not address every manifestation of the evil at once; it may proceed "one step at a time." 39 In addressing a societal concern, it must invariably draw lines and make choices, thereby creating some inequity as to those included or excluded.40 Nevertheless, as long as "the bounds of reasonable choice" are not exceeded, the courts must defer to the legislative judgment. 41 We may not strike down a law merely because the legislative aim would have been more fully achieved by expanding the class. 42 Stated differently, the fact that a legislative classification, by itself, is underinclusive will not render it unconstitutionally arbitrary or invidious. 43 There is no constitutional requirement that regulation must reach each and every class to which it might be applied; 44 that the Legislature must be held rigidly to the choice of regulating all or none.

Thus, any person who poses an equal protection challenge must convincingly show that the law creates a classification that is "palpably arbitrary or capricious." 45 He must refuteall possible rational bases for the differing treatment, whether or not the Legislature cited those bases as reasons for the enactment, 46 such that the constitutionality of the law must be sustained even if the reasonableness of the classification is "fairly debatable." 47 In the case at bar, the petitioners failed — and in fact did not even attempt — to discharge this heavy burden. Our assailed Decision was likewise silent as a sphinx on this point even while we submitted the following thesis:

. . . [I]t is not sufficient grounds for invalidation that we may find that the statute's distinction is unfair, underinclusive, unwise, or not the best solution from a public-policy standpoint; rather, we must find that there is no reasonably rational reason for the differing treatment. 48  

In the instant case, is there a rational justification for excluding elected officials from the operation of the deemed resigned provisions? I submit that there is.

An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people. 49 It involves the choice or selection of candidates to public office by popular vote. 50 Considering that elected officials are put in office by their constituents for a definite term, it may justifiably be said that they were excluded from the ambit of the deemed resigned provisions in utmost respect for the mandate of the sovereign will. In other words, complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are concerned. CaSHAc

The dichotomized treatment of appointive and elective officials is therefore germane to the purposes of the law. For the law was made not merely to preserve the integrity, efficiency, and discipline of the public service; the Legislature, whose wisdom is outside the rubric of judicial scrutiny, also thought it wise to balance this with the competing, yet equally compelling, interest of deferring to the sovereign will. 51 (emphasis in the original)

In fine, the assailed Decision would have us "equalize the playing field" by invalidating provisions of law that seek to restrain the evils from running riot. Under the pretext of equal protection, it would favor a situation in which the evils are unconfined and vagrant, existing at the behest of both appointive and elected officials, over another in which a significant portion thereof is contained. The absurdity of that position is self-evident, to say the least.

The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his dissent, that elected officials (vis-à-vis appointive officials) have greater political clout over the electorate, is indeed a matter worth exploring — but not by this Court. Suffice it to say that the remedy lies with the Legislature. It is the Legislature that is given the authority, under our constitutional system, to balance competing interests and thereafter make policy choices responsive to the exigencies of the times. It is certainly within the Legislature's power to make the deemed-resigned provisions applicable to elected officials, should it later decide that the evils sought to be prevented are of such frequency and magnitude as to tilt the balance in favor of expanding the class. This Court cannot and should not arrogate unto itself the power to ascertain and impose on the people the best state of affairs from a public policy standpoint.

iii. Mancuso v. Taft Has Been Overruled

Finding no Philippine jurisprudence to prop up its equal protection ruling, our assailed Decision adverted to, and extensively cited, Mancuso v. Taft. 52 This was a decision of the First Circuit of the United States Court of Appeals promulgated in March 1973, which struck down as unconstitutional a similar statutory provision. Pathetically, our assailed Decision, relying on Mancuso, claimed:

(1) The right to run for public office is "inextricably linked" with two fundamental freedoms — freedom of expression and association;

(2) Any legislative classification that significantly burdens this fundamental right must be subjected to strict equal protection review; and

(3) While the state has a compelling interest in maintaining the honesty and impartiality of its public work force, the deemed-resigned provisions pursue their objective in a far too heavy-handed manner as to render them unconstitutional.

It then concluded with the exhortation that since "the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too, should follow suit." TCHcAE

Our assailed Decision's reliance on Mancuso is completely misplaced. We cannot blink away the fact that the United States Supreme Court effectively overruled Mancuso three months after its promulgation by the United States Court of Appeals. In United States Civil Service Commission, et al. v. National Association of Letter Carriers AFL-CIO, et al. 53 and Broadrick, et al. v. State of Oklahoma, et al., 54 the United States Supreme Court was faced with the issue of whether statutory provisions prohibiting federal 55 and state 56 employees from taking an active part in political management or in political campaigns were unconstitutional as to warrant facial invalidation. Violation of these provisions results in dismissal from employment and possible criminal sanctions.

The Court declared these provisions compliant with the equal protection clause. It held that (i) in regulating the speech of its employees, the state as employer has interests that differ significantly from those it possesses in regulating the speech of the citizenry in general; (ii) the courts must therefore balance the legitimate interest of employee free expression against the interests of the employer in promoting efficiency of public services; (iii) if the employees' expression interferes with the maintenance of efficient and regularly functioning services, the limitation on speech is not unconstitutional; and (iv) the Legislature is to be given some flexibility or latitude in ascertaining which positions are to be covered by any statutory restrictions. 57 Therefore, insofar as government employees are concerned, the correct standard of review is an interest-balancing approach, a means-end scrutiny that examines the closeness of fit between the governmental interests and the prohibitions in question. 58

Letter Carriers elucidated on these principles, as follows:

Until now, the judgment of Congress, the Executive, and the country appears to have been that partisan political activities by federal employees must be limited if the Government is to operate effectively and fairly, elections are to play their proper part in representative government, and employees themselves are to be sufficiently free from improper influences. The restrictions so far imposed on federal employees are not aimed at particular parties, groups, or points of view, but apply equally to all partisan activities of the type described. They discriminate against no racial, ethnic, or religious minorities. Nor do they seek to control political opinions or beliefs, or to interfere with or influence anyone's vote at the polls.

But, as the Court held in Pickering v. Board of Education, 59 the government has an interest in regulating the conduct and 'the speech of its employees that differ(s) significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the (employee), as a citizen, in commenting upon matters of public concern and the interest of the (government), as an employer, in promoting the efficiency of the public services it performs through its employees.' Although Congress is free to strike a different balance than it has, if it so chooses, we think the balance it has so far struck is sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act. HTSIEa

It seems fundamental in the first place that employees in the Executive Branch of the Government, or those working for any of its agencies, should administer the law in accordance with the will of Congress, rather than in accordance with their own or the will of a political party. They are expected to enforce the law and execute the programs of the Government without bias or favoritism for or against any political party or group or the members thereof. A major thesis of the Hatch Act is that to serve this great end of Government — the impartial execution of the laws — it is essential that federal employees, for example, not take formal positions in political parties, not undertake to play substantial roles in partisan political campaigns, and not run for office on partisan political tickets. Forbidding activities like these will reduce the hazards to fair and effective government.

There is another consideration in this judgment: it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent.

Another major concern of the restriction against partisan activities by federal employees was perhaps the immediate occasion for enactment of the Hatch Act in 1939. That was the conviction that the rapidly expanding Government work force should not be employed to build a powerful, invincible, and perhaps corrupt political machine. The experience of the 1936 and 1938 campaigns convinced Congress that these dangers were sufficiently real that substantial barriers should be raised against the party in power — or the party out of power, for that matter — using the thousands or hundreds of thousands of federal employees, paid for at public expense, to man its political structure and political campaigns. HIDCTA

A related concern, and this remains as important as any other, was to further serve the goal that employment and advancement in the Government service not depend on political performance, and at the same time to make sure that Government employees would be free from pressure and from express or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their own beliefs.  It may be urged that prohibitions against coercion are sufficient protection; but for many years the joint judgment of the Executive and Congress has been that to protect the rights of federal employees with respect to their jobs and their political acts and beliefs it is not enough merely to forbid one employee to attempt to influence or coerce another. For example, at the hearings in 1972 on proposed legislation for liberalizing the prohibition against political activity, the Chairman of the Civil Service Commission stated that 'the prohibitions against active participation in partisan political management and partisan political campaigns constitute the most significant safeguards against coercion . . ..' Perhaps Congress at some time will come to a different view of the realities of political life and Government service; but that is its current view of the matter, and we are not now in any position to dispute it. Nor, in our view, does the Constitution forbid it. 

Neither the right to associate nor the right to participate in political activities is absolute in any event. 60 . . .

xxx xxx xxx

As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations. (italics supplied)

Broadrick likewise definitively stated that the assailed statutory provision is constitutionally permissible, viz.:

Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan political conduct of state employees. Appellants freely concede that such restrictions serve valid and important state interests, particularly with respect to attracting greater numbers of qualified people by insuring their job security, free from the vicissitudes of the elective process, and by protecting them from 'political extortion.' Rather, appellants maintain that however permissible, even commendable, the goals of s 818 may be, its language is unconstitutionally vague and its prohibitions too broad in their sweep, failing to distinguish between conduct that may be proscribed and conduct that must be permitted. For these and other reasons, appellants assert that the sixth and seventh paragraphs of s 818 are void in toto and cannot be enforced against them or anyone else.

We have held today that the Hatch Act is not impermissibly vague. 61 We have little doubt that s 818 is similarly not so vague that 'men of common intelligence must necessarily guess at its meaning.' 62 Whatever other problems there are with s 818, it is all but frivolous to suggest that the section fails to give adequate warning of what activities it proscribes or fails to set out 'explicit standards' for those who must apply it. In the plainest language, it prohibits any state classified employee from being 'an officer or member' of a 'partisan political club' or a candidate for 'any paid public office.' It forbids solicitation of contributions 'for any political organization, candidacy or other political purpose' and taking part 'in the management or affairs of any political party or in any political campaign.' Words inevitably contain germs of uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms in s 818 as 'partisan,' or 'take part in,' or 'affairs of' political parties. But what was said in Letter Carriers, is applicable here: 'there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.' . . . IAEcCT

xxx xxx xxx

[Appellants] nevertheless maintain that the statute is overbroad and purports to reach protected, as well as unprotected conduct, and must therefore be struck down on its face and held to be incapable of any constitutional application. We do not believe that the overbreadth doctrine may appropriately be invoked in this manner here.

xxx xxx xxx

The consequence of our departure from traditional rules of standing in the First Amendment area is that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. . . .

. . . But the plain import of our cases is, at the very least, that facial over-breadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from 'pure speech' toward conduct and that conduct-even if expressive-falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect-at best a prediction-cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that s 818 is not substantially overbroad and that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.

Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s 818 is directed, by its terms, at political expression which if engaged in by private persons would plainly be protected by the First and Fourteenth Amendments. But at the same time, s 818 is not a censorial statute, directed at particular groups or viewpoints. The statute, rather, seeks to regulate political activity in an even-handed and neutral manner. As indicted, such statutes have in the past been subject to a less exacting

overbreadth scrutiny. Moreover, the fact remains that s 818 regulates a substantial spectrum of conduct that is as manifestly subject to state regulation as the public peace or criminal trespass.  This much was established in United Public Workers v. Mitchell, and has been unhesitatingly reaffirmed today in Letter Carriers. Under the decision in Letter Carriers, there is no question that s 818 is valid at least insofar as it forbids classified employees from: soliciting contributions for partisan candidates, political parties, or other partisan political purposes; becoming members of national, state, or local committees of political parties, or officers or committee members in partisan political clubs, or candidates for any paid public office; taking part in the management or affairs of any political party's partisan political campaign; serving as delegates or alternates to caucuses or conventions of political parties; addressing or taking an active part in partisan political rallies or meetings; soliciting votes or assisting voters at the polls or helping in a partisan effort to get voters to the polls; participating in the distribution of partisan campaign literature; initiating or circulating partisan nominating petitions; or riding in caravans for any political party or partisan political candidate. HAIaEc

. . . It may be that such restrictions are impermissible and that s 818 may be susceptible of some other improper applications. But, as presently construed, we do not believe that s 818 must be discarded in toto because some persons' arguably protected conduct may or may not be caught or chilled by the statute. Section 818 is not substantially overbroad and it not, therefore, unconstitutional on its face. (italics supplied)

It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny the principles enunciated in Letter Carriers and Broadrick. He would hold, nonetheless, that these cases cannot be interpreted to mean a reversal of Mancuso, since they "pertain to different types of laws and were decided based on a different set of facts," viz.:

In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Hatch Act's prohibition against "active participation in political management or political campaigns." The plaintiffs desired to campaign for candidates for public office, to encourage and get federal employees to run for state and local offices, to participate as delegates in party conventions, and to hold office in a political club.

In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in the (sic) Oklahoma's Merit System of Personnel Administration Act restricting the political activities of the State's classified civil servants, in much the same manner as the Hatch Act proscribed partisan political activities of federal employees. Prior to the commencement of the action, the appellants actively participated in the 1970 reelection campaign of their superior, and were administratively charged for asking other Corporation Commission employees to do campaign work or to give referrals to persons who might help in the campaign, for soliciting money for the campaign, and for receiving and distributing campaign posters in bulk.

Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision. Kenneth Mancuso, a full time police officer and classified civil service employee of the City of Cranston, filed as a candidate for nomination as representative to the Rhode Island General Assembly. The Mayor of Cranston then began the process of enforcing the resign-to-run provision of the City Home Rule Charter.

Clearly, as the above-cited US cases pertain to different types of laws and were decided based on a different set of facts, Letter Carriers and Broadrick cannot be interpreted to mean a reversal of Mancuso. . . . (italics in the original)

We hold, however, that his position is belied by a plain reading of these cases. Contrary to his claim, Letter Carriers, Broadrick and Mancuso all concerned the constitutionality of resign-to-run laws, viz.:

(1) Mancuso involved a civil service employee who filed as a candidate for nomination as representative to the Rhode Island General Assembly. He assailed the constitutionality of §14.09 (c) of the City Home Rule Charter, which prohibits "continuing in the classified service of the city after becoming a candidate for nomination or election to any public office."  

(2) Letter Carriers involved plaintiffs who alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Hatch Act's prohibition against "active participation in political management or political campaigns" 63 with respect to certain defined activities in which they desired to engage. The plaintiffs relevant to this discussion are: THEcAS

(a) The National Association of Letter Carriers, which alleged that its members were desirous of, among others, running in local elections for offices such as school board member, city council member or mayor;

(b) Plaintiff Gee, who alleged that he desired to, but did not, file as a candidate for the office of Borough Councilman in his local community for fear that his participation in a partisan election would endanger his job; and

(c) Plaintiff Myers, who alleged that he desired to run as a Republican candidate in the 1971 partisan election for the mayor of West Lafayette, Indiana, and that he would do so except for fear of losing his job by reason of violation of the Hatch Act.

The Hatch Act defines "active participation in political management or political campaigns" by cross-referring to the rules made by the Civil Service Commission. The rule pertinent to our inquiry states:

30. Candidacy for local office: Candidacy for a nomination or for election to any National, State, county, or municipal office is not permissible. The prohibition against political activity extends not merely to formal announcement of candidacy but also to the preliminaries leading to such announcement and to canvassing or soliciting support or doing or permitting to be done any act in furtherance of candidacy. The fact that candidacy, is merely passive is immaterial; if an employee acquiesces in the efforts of friends in furtherance of such candidacy such acquiescence constitutes an infraction of the prohibitions against political activity. (italics supplied)

Section 9 (b) requires the immediate removal of violators and forbids the use of appropriated funds thereafter to pay compensation to these persons. 64

(3) Broadrick was a class action brought by certain Oklahoma state employees seeking a declaration of unconstitutionality of two sub-paragraphs of Section 818 of Oklahoma's Merit System of Personnel Administration Act. Section 818 (7), the paragraph relevant to this discussion, states that "[n]o employee in the classified service shall be . . . a candidate for nomination or election to any paid public office . . ." Violation of Section 818 results in dismissal from employment, possible criminal sanctions and limited state employment ineligibility.

Consequently, it cannot be denied that Letter Carriers and Broadrick effectively overruled Mancuso. By no stretch of the imagination could Mancuso still be held operative, asLetter Carriers and Broadrick (i) concerned virtually identical resign-to-run laws, and (ii) were decided by a superior court, the United States Supreme Court. It was thus not surprising for the First Circuit Court of Appeals — the same court that decided Mancuso — to hold categorically and emphatically in Magill v. Lynch 65 that Mancuso is no longer good law. As we priorly explained:

Magill involved Pawtucket, Rhode Island firemen who ran for city office in 1975. Pawtucket's "Little Hatch Act" prohibits city employees from engaging in a broad range of political activities. Becoming a candidate for any city office is specifically proscribed, 66 the violation being punished by removal from office or immediate dismissal. The firemen brought an action against the city officials on the ground that that the provision of the city charter was unconstitutional. However, the court, fully cognizant of Letter Carriers and Broadrick, took the position that Mancuso had since lost considerable vitality. It observed that the view that political candidacy was a fundamental interest which could be infringed upon only if less restrictive alternatives were not available, was a position which was no longer viable, since the Supreme Court (finding that the government's interest in regulating both the conduct and speech of its employees differed significantly from its interest in regulating those of the citizenry in general) had given little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of Congress, and applying a "balancing" test to determine whether limits on political activity by public employees substantially served government interests which were "important" enough to outweigh the employees' First Amendment rights. 67 aIcCTA

It must be noted that the Court of Appeals ruled in this manner even though the election in Magill was characterized as nonpartisan, as it was reasonable for the city to fear, under the circumstances of that case, that politically active bureaucrats might use their official power to help political friends and hurt political foes. Ruled the court:

The question before us is whether Pawtucket's charter provision, which bars a city employee's candidacy in even a nonpartisan city election, is constitutional. The issue compels us to extrapolate two recent Supreme Court decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers and Broadrick v. Oklahoma. Both dealt with laws barring civil servants from partisan political activity. Letter Carriers reaffirmed United Public Workers v. Mitchell, upholding the constitutionality of the Hatch Act as to federal employees. Broadrick sustained Oklahoma's "Little Hatch Act" against constitutional attack, limiting its holding to Oklahoma's construction that the Act barred only activity in partisan politics. In Mancuso v. Taft, we assumed that proscriptions of candidacy in nonpartisan elections would not be constitutional. Letter Carriers and Broadrick compel new analysis.

xxx xxx xxx

What we are obligated to do in this case, as the district court recognized, is to apply the Court's interest balancing approach to the kind of nonpartisan electionrevealed in this record. We believe that the district court found more residual vigor in our opinion in Mancuso v. Taft than remains after Letter Carriers. We have particular reference to our view that political candidacy was a fundamental interest which could be trenched upon only if less restrictive alternatives were not available. While this approach may still be viable for citizens who are not government employees, the Court in Letter Carriers recognized that the government's interest in regulating both the conduct and speech of its employees differs significantly from its interest in regulating those of the citizenry in general.  Not only wasUnited Public Workers v. Mitchell "unhesitatingly" reaffirmed, but the Court gave little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of the Congress. We cannot be more precise than the Third Circuit in characterizing the Court's approach as "some sort of 'balancing' process". 68 It appears that the government may place limits on campaigning by public employees if the limits substantially serve government interests that are "important" enough to outweigh the employees' First Amendment rights. . . . (italics supplied)

Upholding thus the constitutionality of the law in question, the Magill court detailed the major governmental interests discussed in Letter Carriers and applied them to the Pawtucket provision as follows:

In Letter Carriers[,] the first interest identified by the Court was that of an efficient government, faithful to the Congress rather than to party. The district court discounted this interest, reasoning that candidates in a local election would not likely be committed to a state or national platform. This observation undoubtedly has substance insofar as allegiance to broad policy positions is concerned. But a different kind of possible political intrusion into efficient administration could be thought to threaten municipal government: not into broad policy decisions, but into the particulars of administration favoritism in minute decisions affecting welfare, tax assessments, municipal contracts and purchasing, hiring, zoning, licensing, and inspections. Just as the Court in Letter Carriers identified a second governmental interest in the avoidance of the appearance of "political justice" as to policy, so there is an equivalent interest in avoiding the appearance of political preferment in privileges, concessions, and benefits. The appearance (or reality) of favoritism that the charter's authors evidently feared is not exorcised by the nonpartisan character of the formal election process. Where, as here, party support is a key to successful campaigning, and party rivalry is the norm, the city might reasonably fear that politically active bureaucrats would use their official power to help political friends and hurt political foes. This is not to say that the city's interest in visibly fair and effective administration necessarily justifies a blanket prohibition of all employee campaigning; if parties are not heavily involved in a campaign, the danger of favoritism is less, for neither friend nor foe is as easily identified. CScaDH

A second major governmental interest identified in Letter Carriers was avoiding the danger of a powerful political machine. The Court had in mind the large and growing federal bureaucracy and its partisan potential. The district court felt this was only a minor threat since parties had no control over nominations. But in fact candidates sought party endorsements, and party endorsements proved to be highly effective both in determining who would emerge from the primary election and who would be elected in the final election. Under the prevailing customs, known party affiliation and support were highly significant factors in Pawtucket elections. The charter's authors might reasonably have feared that a politically active public work force would give the incumbent party, and the incumbent workers, an unbreakable grasp on the reins of power. In municipal elections especially, the small size of the electorate and the limited powers of local government may inhibit the growth of interest groups powerful enough to outbalance the weight of a partisan work force. Even when nonpartisan issues and candidacies are at stake, isolated government employees may seek to influence voters or their co-workers improperly; but a more real danger is that a central party structure will mass the scattered powers of government workers behind a single party platform or slate. Occasional misuse of the public trust to pursue private political ends is tolerable, especially because the political views of individual employees may balance each other out. But party discipline eliminates this diversity and tends to make abuse systematic. Instead of a handful of employees pressured into advancing their immediate superior's political ambitions, the entire government work force may be expected to turn out for many candidates in every election. In Pawtucket, where parties are a continuing presence in political campaigns, a carefully orchestrated use of city employees in support of the incumbent party's candidates is possible. The danger is scarcely lessened by the openness of Pawtucket's nominating procedure or the lack of party labels on its ballots.  

The third area of proper governmental interest in Letter Carriers was ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity. The district court did not address this factor, but looked only to the possibility of a civil servant using his position to influence voters, and held this to be no more of a threat than in the most nonpartisan of elections. But we think that the possibility of coercion of employees by superiors remains as strong a factor in municipal elections as it was in Letter Carriers. Once again, it is the systematic and coordinated exploitation of public servants for political ends that a legislature is most likely to see as the primary threat of employees' rights. Political oppression of public employees will be rare in an entirely nonpartisan system. Some superiors may be inclined to ride herd on the politics of their employees even in a nonpartisan context, but without party officials looking over their shoulders most supervisors will prefer to let employees go their own ways.

In short, the government may constitutionally restrict its employees' participation in nominally nonpartisan elections if political parties play a large role in the campaigns. In the absence of substantial party involvement, on the other hand, the interests identified by the Letter Carriers Court lose much of their force. While the employees' First Amendment rights would normally outbalance these diminished interests, we do not suggest that they would always do so. Even when parties are absent, many employee campaigns might be thought to endanger at least one strong public interest, an interest that looms larger in the context of municipal elections than it does in the national elections considered in Letter Carriers. The city could reasonably fear the prospect of a subordinate running directly against his superior or running for a position that confers great power over his superior. An employee of a federal agency who seeks a Congressional seat poses less of a direct challenge to the command and discipline of his agency than a fireman or policeman who runs for mayor or city council. The possibilities of internal discussion, cliques, and political bargaining, should an employee gather substantial political support, are considerable. (citations omitted) TEaADS

The court, however, remanded the case to the district court for further proceedings in respect of the petitioners' overbreadth charge. Noting that invalidating a statute for being overbroad is "not to be taken lightly, much less to be taken in the dark," the court held:

The governing case is Broadrick, which introduced the doctrine of "substantial" overbreadth in a closely analogous case. Under Broadrick, when one who challenges a law

has engaged in constitutionally unprotected conduct (rather than unprotected speech) and when the challenged law is aimed at unprotected conduct, "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Two major uncertainties attend the doctrine: how to distinguish speech from conduct, and how to define "substantial" overbreadth. We are spared the first inquiry by Broadrick itself. The plaintiffs in that case had solicited support for a candidate, and they were subject to discipline under a law proscribing a wide range of activities, including soliciting contributions for political candidates and becoming a candidate. The Court found that this combination required a substantial overbreadth approach. The facts of this case are so similar that we may reach the same result without worrying unduly about the sometimes opaque distinction between speech and conduct.

The second difficulty is not so easily disposed of. Broadrick found no substantial overbreadth in a statute restricting partisan campaigning. Pawtucket has gone further, banning participation in nonpartisan campaigns as well. Measuring the substantiality of a statute's overbreadth apparently requires, inter alia, a rough balancing of the number of valid applications compared to the number of potentially invalid applications. Some sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable. The question is a matter of degree; it will never be possible to say that a ratio of one invalid to nine valid applications makes a law substantially overbroad. Still, an overbreadth challenger has a duty to provide the court with some idea of the number of potentially invalid applications the statute permits. Often, simply reading the statute in the light of common experience or litigated cases will suggest a number of probable invalid applications. But this case is different. Whether the statute is overbroad depends in large part on the number of elections that are insulated from party rivalry yet closed to Pawtucket employees. For all the record shows, every one of the city, state, or federal elections in Pawtucket is actively contested by political parties. Certainly the record suggests that parties play a major role even in campaigns that often are entirely nonpartisan in other cities. School committee candidates, for example, are endorsed by the local Democratic committee.

The state of the record does not permit us to find overbreadth; indeed such a step is not to be taken lightly, much less to be taken in the dark. On the other hand, the entire focus below, in the short period before the election was held, was on the constitutionality of the statute as applied. Plaintiffs may very well feel that further efforts are not justified, but they should be afforded the opportunity to demonstrate that the charter forecloses access to a significant number of offices, the candidacy for which by municipal employees would not pose the possible threats to government efficiency and integrity which Letter Carriers, as we have interpreted it, deems significant. Accordingly, we remand for consideration of plaintiffs' overbreadth claim. (italics supplied, citations omitted)

Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt that Mancuso v. Taft, heavily relied upon by the ponencia, has effectively been overruled. 69 As it is no longer good law, the ponencia's exhortation that "[since] the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too, should follow suit" is misplaced and unwarranted. 70

Accordingly, our assailed Decision's submission that the right to run for public office is "inextricably linked" with two fundamental freedoms — those of expression and association — lies on barren ground. American case law has in fact never recognized a fundamental right to express one's political views through candidacy, 71 as to invoke a rigorous standard of review. 72 Bart v. Telford 73 pointedly stated that "[t]he First Amendment does not in terms confer a right to run for public office, and this court has held that it does not do so by implication either." Thus, one's interest in seeking office, by itself, is not entitled to constitutional protection. 74 Moreover, one cannot bring one's action under the rubric of freedom of association, absent any allegation that, by running for an elective position, one is advancing the political ideas of a particular set of voters. 75 HTSAEa

Prescinding from these premises, it is crystal clear that the provisions challenged in the case at bar, are not violative of the equal protection clause. The deemed-resigned provisions substantially serve governmental interests (i.e., (i) efficient civil service faithful to the government and the people rather than to party; (ii) avoidance of the appearance of "political justice" as to policy; (iii) avoidance of the danger of a powerful political machine; and (iv) ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political

activity). These are interests that are important enough to outweigh the non-fundamental right of appointive officials and employees to seek elective office.

En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v. Fashing 76 and Morial, et al. v. Judiciary Commission of the State of Louisiana, et al. 77 to buttress his dissent. Maintaining that resign-to-run provisions are valid only when made applicable to specified officials, he explains:

. . . U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run provisions when applied to specified or particular officials, as distinguished from all others, 78 under a classification that is germane to the purposes of the law. These resign-to-run legislations were not expressed in a general and sweeping provision, and thus did not violate the test of being germane to the purpose of the law, the second requisite for a valid classification. Directed, as they were, to particular officials, they were not overly encompassing as to be overbroad. (emphasis in the original)

This reading is a regrettable misrepresentation of Clements and Morial. The resign-to-run provisions in these cases were upheld not because they referred to specified or particular officials (vis-à-vis a general class); the questioned provisions were found valid precisely because the Court deferred to legislative judgment and found that a regulation is not devoid of a rational predicate simply because it happens to be incomplete. In fact, the equal protection challenge in Clements revolved around the claim that the State of Texas failed to explain why some public officials are subject to the resign-to-run provisions, while others are not. Ruled the United States Supreme Court:

Article XVI, § 65, of the Texas Constitution provides that the holders of certain offices automatically resign their positions if they become candidates for any other elected office, unless the unexpired portion of the current term is one year or less. The burdens that § 65 imposes on candidacy are even less substantial than those imposed by § 19. The two provisions, of course, serve essentially the same state interests. The District Court found § 65 deficient, however, not because of the nature or extent of the provision's restriction on candidacy, but because of the manner in which the offices are classified. According to the District Court, the classification system cannot survive equal protection scrutiny, because Texas has failed to explain sufficiently why some elected public officials are subject to § 65 and why others are not. As with the case of § 19, we conclude that § 65 survives a challenge under the Equal Protection Clause unless appellees can show that there is no rational predicate to the classification scheme.TcSICH 

The history behind § 65 shows that it may be upheld consistent with the "one step at a time" approach that this Court has undertaken with regard to state regulation not subject to more vigorous scrutiny than that sanctioned by the traditional principles. Section 65 was enacted in 1954 as a transitional provision applying only to the 1954 election. Section 65 extended the terms of those offices enumerated in the provision from two to four years. The provision also staggered the terms of other offices so that at least some county and local offices would be contested at each election. The automatic resignation proviso to § 65 was not added until 1958. In that year, a similar automatic resignation provision was added in Art. XI, § 11, which applies to officeholders in home rule cities who serve terms longer than two years. Section 11 allows home rule cities the option of extending the terms of municipal offices from two to up to four years.

Thus, the automatic resignation provision in Texas is a creature of the State's electoral reforms of 1958. That the State did not go further in applying the automatic resignation provision to those officeholders whose terms were not extended by § 11 or § 65, absent an invidious purpose, is not the sort of malfunctioning of the State's lawmaking process forbidden by the Equal Protection Clause. A regulation is not devoid of a rational predicate simply because it happens to be incomplete. The Equal Protection Clause does not forbid Texas to restrict one elected officeholder's candidacy for another elected office unless and until it places similar restrictions on other officeholders. The provision's language and its history belie any notion that § 65 serves the invidious purpose of denying access to the political process to identifiable classes of potential candidates. (citations omitted and italics supplied)

Furthermore, it is unfortunate that the dissenters took the Morial line that "there is no blanket approval of restrictions on the right of public employees to become candidates for public office" out of context. A correct reading of that line readily shows that the Court only meant to confine its ruling to the facts of that case, as each equal protection challenge would necessarily have to involve weighing governmental interests vis-à-vis the specific prohibition assailed. The Court held:

The interests of public employees in free expression and political association are unquestionably entitled to the protection of the first and fourteenth amendments. Nothing in today's decision should be taken to imply that public employees may be prohibited from expressing their private views on controversial topics in a manner that does not interfere with the proper performance of their public duties. In today's decision, there is no blanket approval of restrictions on the right of public employees to become candidates for public office. Nor do we approve any general restrictions on the political and civil rights of judges in particular. Our holding is necessarily narrowed by the methodology employed to reach it. A requirement that a state judge resign his office prior to becoming a candidate for non-judicial office bears a reasonably necessary relation to the achievement of the state's interest in preventing the actuality or appearance of judicial impropriety. Such a requirement offends neither the first amendment's guarantees of free expression and association nor the fourteenth amendment's guarantee of equal protection of the laws. (italics supplied) cTCEIS

Indeed, the Morial court even quoted Broadrick and stated that:

In any event, the legislature must have some leeway in determining which of its employment positions require restrictions on partisan political activities and which may be left unregulated. And a State can hardly be faulted for attempting to limit the positions upon which such restrictions are placed. (citations omitted)

V.

Section 4(a) of Resolution 8678, Section 13 of RA 9369,and Section 66 of the Omnibus Election CodeDo Not Suffer from Overbreadth

Apart from nullifying Section 4 (a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code on equal protection ground, our assailed Decision struck them down for being overbroad in two respects, viz.:

(1) The assailed provisions limit the candidacy of all civil servants holding appointive posts without due regard for the type of position being held by the employee seeking an elective post and the degree of influence that may be attendant thereto; 79 and

(2) The assailed provisions limit the candidacy of any and all civil servants holding appointive positions without due regard for the type of office being sought, whether it be partisan or nonpartisan in character, or in the national, municipal or barangay level.

Again, on second look, we have to revise our assailed Decision.

i. Limitation on Candidacy Regardless ofIncumbent Appointive Official's Position, Valid

According to the assailed Decision, the challenged provisions of law are overly broad because they apply indiscriminately to all civil servants holding appointive posts, without due regard for the type of position being held by the employee running for elective office and the degree of influence that may be attendant thereto.

Its underlying assumption appears to be that the evils sought to be prevented are extant only when the incumbent appointive official running for elective office holds an influential post.

Such a myopic view obviously fails to consider a different, yet equally plausible, threat to the government posed by the partisan potential of a large and growing bureaucracy: the danger of systematic abuse perpetuated by a "powerful political machine" that has amassed "the scattered powers of government workers" so as to give itself and its incumbent workers an "unbreakable grasp on the reins of power." 80 As elucidated in our prior exposition: 81 EHTSCD

Attempts by government employees to wield influence over others or to make use of their respective positions (apparently) to promote their own candidacy may seem tolerable — even innocuous — particularly when viewed in isolation from other similar attempts by other government employees. Yet it would be decidedly foolhardy to discount the equally (if not more) realistic and dangerous possibility that such seemingly disjointed attempts, when taken together, constitute a veiled effort

on the part of an emerging central party structure to advance its own agenda through a "carefully orchestrated use of [appointive and/or elective] officials" coming from various levels of the bureaucracy.

. . . [T]he avoidance of such a "politically active public work force" which could give an emerging political machine an "unbreakable grasp on the reins of power" is reason enough to impose a restriction on the candidacies of all appointive public officials without further distinction as to the type of positions being held by such employees or the degree of influence that may be attendant thereto. (citations omitted)

ii. Limitation on CandidacyRegardless of Type of Office Sought, Valid

The assailed Decision also held that the challenged provisions of law are overly broad because they are made to apply indiscriminately to all civil servants holding appointive offices, without due regard for the type of elective office being sought, whether it be partisan or nonpartisan in character, or in the national, municipal or barangay level.

This erroneous ruling is premised on the assumption that "the concerns of a truly partisan office and the temptations it fosters are sufficiently different from those involved in an office removed from regular party politics [so as] to warrant distinctive treatment," 82 so that restrictions on candidacy akin to those imposed by the challenged provisions can validly apply only to situations in which the elective office sought is partisan in character. To the extent, therefore, that such restrictions are said to preclude even candidacies for nonpartisan elective offices, the challenged restrictions are to be considered as overbroad.

Again, a careful study of the challenged provisions and related laws on the matter will show that the alleged overbreadth is more apparent than real. Our exposition on this issue has not been repudiated, viz.:

A perusal of Resolution 8678 will immediately disclose that the rules and guidelines set forth therein refer to the filing of certificates of candidacy and nomination of official candidates of registered political parties, in connection with the May 10, 2010 National and Local Elections. 83 Obviously, these rules and guidelines, including the restriction in Section 4(a) of Resolution 8678, were issued specifically for purposes of the May 10, 2010 National and Local Elections, which, it must be noted, are decidedly partisan in character. Thus, it is clear that the restriction in Section 4(a) of RA 8678 applies only to the candidacies of appointive officials vying for partisan elective posts in the May 10, 2010 National and Local Elections. On this score, the overbreadth challenge leveled against Section 4 (a) is clearly unsustainable. aIcDCH

Similarly, a considered review of Section 13 of RA 9369 and Section 66 of the Omnibus Election Code, in conjunction with other related laws on the matter, will confirm that these provisions are likewise not intended to apply to elections for nonpartisan public offices.

The only elections which are relevant to the present inquiry are the elections for barangay offices, since these are the only elections in this country which involve nonpartisanpublic offices. 84

In this regard, it is well to note that from as far back as the enactment of the Omnibus Election Code in 1985, Congress has intended that these nonpartisan barangayelections be governed by special rules, including a separate rule on deemed resignations which is found in Section 39 of the Omnibus Election Code. Said provision states: 

Section 39. Certificate of Candidacy. — No person shall be elected punong barangay or kagawad ng sangguniang barangay unless he files a sworn certificate of candidacy in triplicate on any day from the commencement of the election period but not later than the day before the beginning of the campaign period in a form to be prescribed by the Commission. The candidate shall state the barangay office for which he is a candidate.

xxx xxx xxx

Any elective or appointive municipal, city, provincial or national official or employee, or those in the civil or military service, including those in government-owned or-controlled

corporations, shall be considered automatically resigned upon the filing of certificate of candidacy for a barangay office.

Since barangay elections are governed by a separate deemed resignation rule, under the present state of law, there would be no occasion to apply the restriction on candidacy found in Section 66 of the Omnibus Election Code, and later reiterated in the proviso of Section 13 of RA 9369, to any election other than a partisan one. For this reason, the overbreadth challenge raised against Section 66 of the Omnibus Election Code and the pertinent proviso in Section 13 of RA 9369 must also fail. 85

In any event, even if we were to assume, for the sake of argument, that Section 66 of the Omnibus Election Code and the corresponding provision in Section 13 of RA 9369 are general rules that apply also to elections for nonpartisan public offices, the overbreadth challenge would still be futile. Again, we explained:

In the first place, the view that Congress is limited to controlling only partisan behavior has not received judicial imprimatur, because the general proposition of the relevant US cases on the matter is simply that the government has an interest in regulating the conduct and speech of its employees that differs significantly from those it possesses in connection with regulation of the speech of the citizenry in general. 86

Moreover, in order to have a statute declared as unconstitutional or void on its face for being overly broad, particularly where, as in this case, "conduct" and not "pure speech" is involved, the overbreadth must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. 87 DaTEIc

In operational terms, measuring the substantiality of a statute's overbreadth would entail, among other things, a rough balancing of the number of valid applications compared to the number of potentially invalid applications. 88 In this regard, some sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable. 89 The question is a matter of degree. 90 Thus, assuming for the sake of argument that the partisan-nonpartisan distinction is valid and necessary such that a statute which fails to make this distinction is susceptible to an overbreadth attack, the overbreadth challenge presently mounted must demonstrate or provide this Court with some idea of the number of potentially invalid elections (i.e., the number of elections that were insulated from party rivalry but were nevertheless closed to appointive employees) that may in all probability result from the enforcement of the statute. 91

The state of the record, however, does not permit us to find overbreadth. Borrowing from the words of Magill v. Lynch, indeed, such a step is not to be taken lightly, much less to be taken in the dark, 92 especially since an overbreadth finding in this case would effectively prohibit the State from 'enforcing an otherwise valid measure against conduct that is admittedly within its power to proscribe.' 93

This Court would do well to proceed with tiptoe caution, particularly when it comes to the application of the overbreadth doctrine in the analysis of statutes that purportedly attempt to restrict or burden the exercise of the right to freedom of speech, for such approach is manifestly strong medicine that must be used sparingly, and only as a last resort. 94 EcIaTA

In the United States, claims of facial overbreadth have been entertained only where, in the judgment of the court, the possibility that protected speech of others may be muted and perceived grievances left to fester (due to the possible inhibitory effects of overly broad statutes) outweighs the possible harm to society in allowing some unprotected speech or conduct to go unpunished. 95 Facial overbreadth has likewise not been invoked where a limiting construction could be placed on the challenged statute, and where there are readily apparent constructions that would cure, or at least substantially reduce, the alleged overbreadth of the statute. 96

In the case at bar, the probable harm to society in permitting incumbent appointive officials to remain in office, even as they actively pursue elective posts, far outweighs the less likely evil of having arguably protected candidacies blocked by the possible inhibitory effect of a potentially overly broad statute.

In this light, the conceivably impermissible applications of the challenged statutes — which are, at best, bold predictions — cannot justify invalidating these statutes in toto and prohibiting the State from enforcing them against conduct that is, and has for more than 100 years been, unquestionably within its power and interest to proscribe. 97 Instead, the more

prudent approach would be to deal with these conceivably impermissible applications through case-by-case adjudication rather than through a total invalidation of the statute itself. 98

Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion for Reconsideration, intervenor Drilon stated that a number of high-ranking Cabinet members had already filed their Certificates of Candidacy without relinquishing their posts. 99 Several COMELEC election officers had likewise filed their Certificates of Candidacy in their respective provinces. 100 Even the Secretary of Justice had filed her certificate of substitution for representative of the first district of Quezon province last December 14, 2009 101 — even as her position as Justice Secretary includes supervision over the City and Provincial Prosecutors, 102 who, in turn, act as Vice-Chairmen of the respective Boards of Canvassers. 103 The Judiciary has not been spared, for a Regional Trial Court Judge in the South has thrown his hat into the political arena. We cannot allow the tilting of our electoral playing field in their favor.

For the foregoing reasons, we now rule that Section 4 (a) of Resolution 8678 and Section 13 of RA 9369, which merely reiterate Section 66 of the Omnibus Election Code, are not unconstitutionally overbroad.

IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondent's and the intervenors' Motions for Reconsideration; REVERSE and SET ASIDE this Court's December 1, 2009 Decision; DISMISS the Petition; and ISSUE this Resolution declaring as not UNCONSTITUTIONAL (1) Section 4 (a) of COMELEC Resolution No. 8678, (2) the second proviso in the third paragraph of Section 13 of Republic Act No. 9369, and (3) Section 66 of the Omnibus Election Code. IDCHTE

SO ORDERED.

EN BANC

[G.R. No. 186006. October 16, 2009.]

NORLAINIE MITMUG LIMBONA, petitioner, vs. COMMISSION ON ELECTIONS and MALIK "BOBBY" T. ALINGAN, respondents.

RESOLUTION

NACHURA, J p:

Before this Court is a Petition for Certiorari under Rule 65, in relation to Rule 64, assailing the Resolution 1 dated November 23, 2007 of the Second Division of the Commission on Elections (Comelec) and the Resolution 2 of the Comelec En Banc dated January 14, 2009 in SPA No. 07-621.

The factual and procedural antecedents are as follows:

Prior to the May 14, 2007 elections, petitioner Norlainie Mitmug Limbona and her husband, Mohammad "Exchan" Limbona, each filed a Certificate of Candidacy for Mayor of Pantar, Lanao del Norte. On April 2, 2007, private respondent Malik "Bobby" Alingan filed a disqualification case against Mohammad before the Provincial Election Supervisor of Lanao del Norte. On April 12, 2007, Alingan also filed a petition for disqualification against petitioner.  3 Both disqualification cases were premised on the ground that petitioner and her husband lacked the one-year residency requirement and both were not registered voters of Pantar. 4

On April 17, 2007, petitioner executed an Affidavit of Withdrawal of her certificate of candidacy, 5 which was subsequently approved by the Comelec. 6 Petitioner also filed a Motion to Dismiss the disqualification case against her for being moot and academic. 7

On election day, May 14, 2007, the Comelec resolved to postpone the elections in Pantar because there was no final list of voters yet. A special election was scheduled for July 23, 2007. 8 IDEScC

On May 24, 2007, the Comelec First Division promulgated a Resolution disqualifying Mohammad as candidate for mayor for failure to comply with the one-year residency requirement. 9 Petitioner then filed her Certificate of Candidacy as substitute candidate on July 21, 2007. On July 23, 2007, Alingan filed a petition for disqualification against petitioner for, among others, lacking the one-year residency requirement (SPA No. 07-621). 10

In a Resolution in SPA No. 07-621 11 dated November 23, 2007, the Comelec Second Division ruled that petitioner was disqualified from running for Mayor of Pantar. The Comelec held that petitioner only became a resident of Pantar in November 2006. It explained that petitioner's domicile of origin was Maguing, Lanao del Norte, her birthplace. When she got married, she became a resident of Barangay Rapasun, Marawi City, where her husband was Barangay Chairman until November 2006. Barangay Rapasun, the Comelec said, was petitioner's domicile by operation of law under the Family Code. The Comelec found that the evidence petitioner adduced to prove that she has abandoned her domicile of origin or her domicile in Marawi City two years prior to the elections consisted mainly of self-serving affidavits and were not corroborated by independent and competent evidence. The Comelec also took note of its resolution in another case where it was found that petitioner was not even a registered voter in Pantar. Petitioner filed a Motion for Reconsideration. 12

The Comelec resolved the motion in an En Banc Resolution dated January 14, 2009, 13 affirming the Second Division's Resolution disqualifying petitioner. The Comelec said that the issue of whether petitioner has complied with the one-year residency rule has been decided by the Supreme Court in Norlainie Mitmug Limbona v. Commission on Elections and Malik "Bobby" T. Alingan promulgated on June 25, 2008. The Comelec noted that, in said case, the Supreme Court upheld the Comelec First Division's Decision in SPA No. 07-611 disqualifying petitioner from running for mayor of Pantar for failure to comply with the residency requirement.

Petitioner is now before this Court assailing the Comelec's November 23, 2007 and January 14, 2009 Resolutions. She posits that the Comelec erred in disqualifying her for failure to comply with the one-year residency requirement. She

alleges that in a disqualification case against her husband filed by Nasser Macauyag, another mayoralty candidate, the Comelec considered her husband as a resident of Pantar and qualified to run for any elective office there. Petitioner avers that since her husband was qualified to run in Pantar, she is likewise qualified to run. 14 CEaDAc

Petitioner also stresses that she was actually residing and was physically present in that municipality for almost two years prior to the May 2007 elections. During the time she had been residing in Pantar, she associated and mingled with residents there, giving her ample time to know the needs, difficulties, aspirations, and economic potential of the municipality. This, she said, is proof of her intention to establish permanent residency there and her intent to abandon her domicile in Marawi City.

She next argues that, even as her husband was Punong Barangay of Rapasun, Marawi City, he never abandoned Pantar as his hometown and domicile of origin. She avers that the performance of her husband's duty in Rapasun did not prevent the latter from having his domicile elsewhere. Hence, it was incorrect for the Comelec to have concluded that her husband changed his domicile only on November 11, 2006. 15 At the very least, petitioner says, the Comelec's conflicting resolutions on the issue of her husband's residence should create a doubt that should be resolved in her and her husband's favor. 16

She further contends that to disqualify her would disenfranchise the voters of Pantar, the overwhelming majority of whom elected her as mayor during the July 23, 2007 special elections. 17

The Comelec, through the Office of the Solicitor General (OSG), filed its Comment, insisting that the Comelec correctly disqualified petitioner from running as mayor for lack of the one-year residency requirement. 18 The OSG argues that there is no evidence that petitioner has abandoned her domicile of origin or her domicile in Marawi City.  19 Moreover, the OSG said that this Court has ruled on the issue of petitioner's residency in  Norlainie Mitmug Limbona v. Commission on Elections and Malik "Bobby" T. Alingan. 20 Lastly, the OSG contends that the Comelec's ruling in Nasser A. Macauyag v. Mohammad Limbona is not binding on petitioner because she was not a party to the case. 21

We dismiss the Petition.

The issue of petitioner's disqualification for failure to comply with the one-year residency requirement has been resolved by this Court in Norlainie Mitmug Limbona v. Commission on Elections and Malik "Bobby" T. Alingan. 22 This case stemmed from the first disqualification case filed by herein respondent against petitioner, docketed as SPA No. 07-611. Although the petitioner had withdrawn the Certificate of Candidacy subject of the disqualification case, the Comelec resolved the petition and found that petitioner failed to comply with the one-year residency requirement, and was, therefore, disqualified from running as mayor of Pantar.

A unanimous Court upheld the findings of the Comelec, to wit:

WHEREFORE, the petition for certiorari is DISMISSED. The September 4, 2007 Resolution of the Commission on Elections in SPA Case No. 07-611 disqualifying petitioner Norlainie Mitmug Limbona from running for office of the Mayor of Pantar, Lanao del Norte, and the January 9, 2008 Resolution denying the motion for reconsideration, are AFFIRMED. In view of the permanent vacancy in the Office of the Mayor, the proclaimed Vice-Mayor shall SUCCEED as Mayor. The temporary restraining order issued on January 29, 2008 is ordered LIFTED.

SO ORDERED. 23

The Court found that petitioner failed to satisfy the one-year residency requirement. It held:

The Comelec correctly found that petitioner failed to satisfy the one-year residency requirement. The term "residence" as used in the election law is synonymous with "domicile", which imports not only intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. The manifest intent of the law in fixing a residence qualification is to exclude a stranger or newcomer, unacquainted with the conditions and needs of a community and not identified with the latter, from an elective office to serve that community. DCaEAS

For purposes of election law, the question of residence is mainly one of intention. There is no hard and fast rule by which to determine where a person actually resides. Three rules are, however, well established: first, that a man must have a residence or domicile somewhere; second, that where once

established it remains until a new one is acquired; and third, a man can have but one domicile at a time.

In order to acquire a domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. A person's "domicile" once established is considered to continue and will not be deemed lost until a new one is established.

To successfully effect a change of domicile one must demonstrate an actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one, and definite acts which correspond with the purpose. In other words, there must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual.

Petitioner's claim that she has been physically present and actually residing in Pantar for almost 20 months prior to the elections, is self-serving and unsubstantiated. As correctly observed by the Comelec:

In the present case, the evidence adduced by respondent, which consists merely of self-serving affidavits cannot persuade Us that she has abandoned her domicile of origin or her domicile in Marawi City. It is alleged that respondent "has been staying, sleeping and doing business in her house for more than 20 months" in Lower Kalanganan and yet, there is no independent and competent evidence that would corroborate such statement.

 

Further, We find no other act that would indicate respondent's intention to stay in Pantar for an indefinite period of time. The filing of her Certificate of Candidacy in Pantar, standing alone, is not sufficient to hold that she has chosen Pantar as her new residence. We also take notice of the fact that in SPA No. 07-611, this Commission has even found that she is not a registered voter in the said municipality warranting her disqualification as a candidate. DHcSIT

We note the findings of the Comelec that petitioner's domicile of origin is Maguing, Lanao del Norte, which is also her place of birth; and that her domicile by operation of law (by virtue of marriage) is Rapasun, Marawi City. The Comelec found that Mohammad, petitioner's husband, effected the change of his domicile in favor of Pantar, Lanao del Norte only on November 11, 2006. Since it is presumed that the husband and wife live together in one legal residence, then it follows that petitioner effected the change of her domicile also on November 11, 2006. Articles 68 and 69 of the Family Code provide:

Art. 68.The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.

Art. 69.The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. (Emphasis ours)

Considering that petitioner failed to show that she maintained a separate residence from her husband, and as there is no evidence to prove otherwise, reliance on these provisions of the Family Code is proper and is in consonance with human experience.

Thus, for failure to comply with the residency requirement, petitioner is disqualified to run for the office of mayor of Pantar, Lanao del Norte. . . . . 24

Petitioner's Motion for Reconsideration of the above-quoted Decision was denied with finality on March 3, 2009. 25 Petitioner filed another Motion for Reconsideration, 26 which the Court treated as a Second Motion for

Reconsideration and, consequently, denied in a Resolution dated June 2, 2009. 27 Of late, petitioner has filed a "Manifestation" that raises yet again the issues already resolved in the petition and which the Court has, accordingly, merely noted without action. 28 Thus, our ruling therein has now attained finality.

Consequently, the issue of petitioner's compliance with the one-year residency requirement is now settled. We are bound by this Court's ruling in the earlier Limbona case where the issue was squarely raised and categorically resolved. We cannot now rule anew on the merits of this case, especially since the present Petition merely restates issues already passed upon by the Comelec and affirmed by this Court. IcaHCS

WHEREFORE, the foregoing premises considered, the Petition is DISMISSED and the Resolution dated November 23, 2007 of the Second Division of the Commission on Elections and the Resolution of the Commission on Elections En Banc dated January 14, 2009 in SPA No. 07-621 are AFFIRMED.

SO ORDERED

EN BANC

[G.R. Nos. 163619-20. November 17, 2005.]

IN THE MATTER OF THE PETITION FOR DISQUALIFICATION OF TESS DUMPIT-MICHELENA,

TESS DUMPIT-MICHELENA, petitioner, vs. CARLOS BOADO, FERNANDO CALONGE, SALVADOR CARRERA, BENITO CARRERA, DOMINGO CARRERA, and ROGELIO DE VERA, respondents.

IN THE MATTER OF THE PETITION TO DENY DUE COURSE OR TO CANCEL CERTIFICATE OF CANDIDACY FOR MAYOR,

TESS DUMPIT-MICHELENA, petitioner, vs. CARLOS BOADO, FERNANDO CALONGE, SALVADOR CARRERA, BENITO CARRERA, DOMINGO CARRERA, and ROGELIO DE VERA, respondents.

D E C I S I O N

CARPIO, J p:

The Cases

Before this Court is a petition for certiorari 1 assailing the 9 March 2004 Resolution 2 of the Commission on Elections ("COMELEC") Second Division and the 7 May 2004 Resolution 3 of the COMELEC En Banc in SPA 04-015 4 and SPA 04-016. 5

The COMELEC Second Division cancelled the certificate of candidacy of Tess Dumpit-Michelena ("Dumpit-Michelena") on the ground of material misrepresentation. The COMELEC En Banc denied Dumpit-Michelena's motion for reconsideration for late filing.

The Antecedent Facts

Dumpit-Michelena was a candidate for the position of mayor in the municipality of Agoo, La Union during the 10 May 2004 Synchronized National and Local Elections. Engineer Carlos Boado, Rogelio L. De Vera, Fernando Calonge, Benito Carrera, Salvador Carrera and Domingo Carrera ("Boado, et al.") sought Dumpit-Michelena's disqualification and the denial or cancellation of her certificate of candidacy on the ground of material misrepresentation under Sections 74 6 and 78 7 of Batas Pambansa Blg. 881 ("Omnibus Election Code").

Boado, et al. alleged that Dumpit-Michelena, the daughter of Congressman Tomas Dumpit, Sr. ("Congressman Dumpit") of the Second District of La Union, is not a resident of Agoo, La Union. Boado, et al. claimed that Dumpit-Michelena is a resident and was a registered voter of Naguilian, La Union and that Dumpit-Michelena only transferred her registration as voter to San Julian West, Agoo, La Union on 24 October 2003. Her presence in San Julian West, Agoo, La Union was noticed only after she filed her certificate of candidacy. Boado, et al. presented, among other things, a joint affidavit of all barangay officials of San Julian West to prove that Dumpit-Michelena is not a resident of thebarangay.

Dumpit-Michelena countered that she already acquired a new domicile in San Julian West when she purchased from her father, Congressman Dumpit, a residential lot on 19 April 2003. She even designated one Gardo Fontanilla as a caretaker of her residential house. Dumpit-Michelena presented the affidavits and certifications of her neighbors in San Julian West to prove that she actually resides in the area.

The Ruling of the COMELEC

In a Resolution issued on 9 March 2004, the COMELEC Second Division ruled, as follows:

WHEREFORE, premises considered, the instant petitions are hereby GRANTED. Respondent is hereby adjudged to be a non-resident of Brgy. San Julian West, Agoo, La Union for purposes of the May 10, 2004 synchronized national and local elections. Accordingly, her Certificate of Candidacy is hereby CANCELLED on the ground of material misrepresentation under Sections 78 and 74 of the Omnibus Election Code, as amended, in relation to Comelec Resolution No. 6452.

SO ORDERED. 8

The COMELEC Second Division held that Boado, et al. established by convincing evidence that Dumpit-Michelena is not a bona fide resident of San Julian West, Agoo, La Union. The COMELEC Second Division found that among the neighbors of Dumpit-Michelena who executed affidavits in her favor, only one is a resident of San Julian West. The others are from other barangays of Agoo, La Union. The COMELEC Second Division noted that several affiants who declared that Dumpit-Michelena resides in San Julian West later retracted their statements on the ground that they did not read the contents of the documents when they signed the affidavits.

Dumpit-Michelena moved for the reconsideration of the Resolution of the COMELEC Second Division.

In a Resolution issued on 7 May 2004, the COMELEC En Banc denied Dumpit-Michelena's motion for reconsideration. The COMELEC En Banc ruled that the motion for reconsideration was filed three days after the last day of the prescribed period for filing the motion.

Hence, the present recourse by Dumpit-Michelena. aESICD

The Issues

The issues raised in the petition are the following:

1. Whether Dumpit-Michelena's motion for reconsideration was filed on time;

2. Whether Dumpit-Michelena was denied due process of law; and

3. Whether Dumpit-Michelena satisfied the residency requirement under the Local Government Code of 1991.

The Ruling of the Court

The petition is partly meritorious.

On Timeliness of the Motion for Reconsideration

We rule that the COMELEC En Banc committed grave abuse of discretion in denying Dumpit-Michelena's motion for reconsideration for late filing.

Resolution No. 6452 9 provides:

SECTION 8. Motion for Reconsideration. — A motion to reconsider a decision, resolution, order or ruling of a division shall be filed within three (3) days from the promulgation thereof. Such motion, if not pro-forma, suspends the execution for implementation of the decision, resolution, order and ruling.

Within twenty-four (24) hours from the filing thereof, the Clerk of the Commission shall notify the Presiding Commissioner. The latter shall, within two (2) days thereafter, certify the case to the Commission en banc.

The Clerk of the Commission shall calendar the motion for reconsideration for the resolution of the Commission en banc within three (3) days from the certification thereof.

In this case, the Resolution cancelling Dumpit-Michelena's Certificate of Candidacy was promulgated in open court on 9 March 2004. Dumpit-Michelena's counsel was present during the promulgation. Following Section 8 of Resolution No. 6452, Dumpit-Michelena had until 12 March 2004 within which to file her motion for reconsideration. However, while Dumpit-Michelena claims to be familiar with Resolution No. 6452, she filed her motion for reconsideration on 15 March 2004. This is because during the promulgation of the cases on 9 March 2004, the COMELEC Second Division issued an Order 10 which states:

On call of these cases today for promulgation, counsels for the respondent appeared. There was no appearance for the petitioners. Counsel manifested that they filed a manifestation and motion and an urgent motion holding in abeyance the promulgation of the resolution of these cases. The motions to hold in abeyance the promulgation is hereby denied. However, the respondent may file a motion for reconsideration within five (5) days from receipt of the decision if the decision is adverse to their client. (Emphasis supplied)

Apparently, the COMELEC committed an oversight in declaring that Dumpit-Michelena had five days within which to file her motion for reconsideration. The COMELEC overlooked Resolution No. 6452. For her part, Dumpit-Michelena only followed the period provided in the Order. She filed her motion for reconsideration on 15 March 2004 since 14 March 2004 fell on a Sunday. This Court can hardly fault her for following the COMELEC Order.On Denial of Due Process

Dumpit-Michelena asserts that she was denied due process when the COMELEC summarily resolved the disqualification case against her without giving her a fair opportunity to submit additional evidence to support her case.

Resolution No. 6452 delegates the reception of evidence in disqualification cases to field officials designated by the COMELEC. 11 The summary nature of disqualification proceedings is provided under Section 5(A)(6) of Resolution No. 6452 which states:

6. The proceeding shall be summary in nature. In lieu of the testimonies, the parties shall submit their affidavits or counter-affidavits and other documentary evidence including their position paper or memorandum within a period of three (3) inextendible days;

The position paper or memorandum of each party shall contain the following:

a. A "Statement of the Case", which is a clear and concise statement of the nature of the action, a summary of the documentary evidence and other matters necessary to an understanding of the nature of the controversy;

b. A "Statement of the Issues", which is a clear and concise statement of the issues;

c. The "Argument" which is a clear and concise presentation of the argument in support of each issue; and

d. The "Relief" which is a specification of the judgment which the party seeks to obtain. The issues raised in his/its pleadings but not included in the Memorandum shall be deemed waived or abandoned. Being a summation of the parties' pleadings and documentary evidence, the Commission may consider the memorandum alone in deciding or resolving the petition.

In these cases, Dumpit-Michelena filed a motion for the inhibition of Atty. Marino V. Salas ("Atty. Salas"), the Provincial Election Supervisor and hearing officer designated to receive the evidence of the parties. She alleged that Boado, et al.'s counsel was the former Regional Director of the COMELEC Regional Office and undue influence might be exerted over Atty. Salas. In the meanwhile, she submitted a "semblance of a memorandum if only to insure . . . that she would be able to convey her opposition to the petitions filed against her." 12 Dumpit-Michelena alleged that she wanted to submit her evidence to a hearing officer who would not be biased and would not be inclined to side with Boado, et al.

Without resolving the Motion to Inhibit, Atty. Salas forwarded the records of the case to COMELEC Manila. However, to obviate suspicion of partiality, Atty. Salas did not make any recommendation as required under Resolution No. 6452.

We rule that there was no denial of due process in the cases before the Court.

Section 5(A) of Resolution No. 6452 provides:

7. The hearing must be completed within ten (10) days from the date of the filing of the answer. The Hearing Officer concerned shall personally or through his authorized representative submit to the Clerk of the Commission his Hearing/Case report(s) indicating his findings and recommendations within five (5) days from the completion of the hearing and reception of evidence together with the complete records of the case;

 

8. Upon receipt of the records of the case [indicating] the findings and recommendations of the Hearing Officer concerned, the Clerk of the Commission shall immediately docket the case consecutively and calendar the same for raffle to a division;

9. The division to whom the case is raffled shall, after evaluation and consultation, assign immediately the same to a member who shall pen the decision within five (5) days from the date of consultation. EHTIDA

Resolution No. 6452 is clear. The hearing officer is only designated to hear and receive evidence. His conclusions are merely recommendatory upon the COMELEC. Dumpit-Michelena knew fully well that the entire records of the case would be forwarded to COMELEC Manila for the resolution of the cases. She had all the opportunity to present her evidence to support her stand. Instead, she chose to file a Memorandum which she described as one "done in 'half-hearted' compliance with the rules." 13 She may not claim now that she was denied due process because she was unable to present all her evidence before the hearing officer.On Residency Requirement

Dumpit-Michelena failed to prove that she has complied with the residency requirement.

Section 65 of the Omnibus Election Code provides that the qualifications for elective provincial, city, municipal and barangay officials shall be those provided for in the Local Government Code. Section 39(a) of the Local Government Code of 1991 14 states:

SEC. 39. Qualifications. — (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panglungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. (Emphasis supplied)

The concept of residence in determining a candidate's qualification is already a settled matter. For election purposes, residence is used synonymously with domicile. 15 In Co v. Electoral Tribunal of the House of Representatives, 16 this Court declared:

. . . The term "residence" has been understood as synonymous with domicile not only under the previous Constitutions but also under the 1987 Constitution.

The deliberations of the Constitutional Commission reveal that the meaning of residence vis-a-vis the qualifications of a candidate for congress continues to remain the same as that of domicile, to wit:

Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention, there was an attempt to require residence in the place not less than one year immediately preceding the day of the elections. So my question is: What is the committee's concept of residence of a candidate for the legislature? Is it actual residence or is it the concept of domicile or constructive residence?

Mr. Davide: Madame President, insofar as the regular members of the National Assembly are concerned, the proposed section merely provides, among others, 'and a resident thereof', that is, in the district, for a period of not less than one year preceding the day of

the election. This was in effect lifted from the 1973 Constitution, the interpretation given to it was domicile." (Records of the 1987 Constitutional Convention, Vol. II, July 22, 1986, p. 87)

xxx xxx xxx

Mrs. Rosario Braid: The next question is on Section 7, page 2. I think Commissioner Nolledo has raised the same point that 'resident' has been interpreted at times as a matter of intention rather than actual residence.

Mr. Delos Reyes: Domicile.

M[r]s. Rosario Braid: Yes, So, would the gentlemen consider at the proper time to go back to actual residence rather than mere intention to reside?

Mr. Delos Reyes: But we might encounter some difficulty especially considering that a provision in the Constitution in the Article on Suffrage says that Filipinos living abroad may vote as enacted by law. So, we have to stick to the original concept that it should be by domicile and not physical and actual residence." (Records of the 1987 Constitutional Commission, Vol. II, July 22, 1986, p. 110)

The framers of the Constitution adhered to the earlier definition given to the word "residence" which regarded it as having the same meaning as domicile.

Prior to her transfer, Dumpit-Michelena was a resident and registered voter of Ambaracao North, Naguilian, La Union. She claims that she has already acquired a new domicile in San Julian West and is thus qualified to run for the position of mayor. She transferred her registration as a voter of San Julian West on 24 October 2003.

Dumpit-Michelena presented a Deed of Sale dated 19 April 2003 showing her acquisition of a parcel of land in San Julian West where she eventually built a house. However, property ownership is not indicia of the right to vote or to be voted for an office. 17 Further, domicile of origin is not easily lost. 18 To successfully effect a change of domicile, there must be concurrence of the following requirements:

(1) an actual removal or an actual change of domicile;

(2) a bona fide intention of abandoning the former place of residence and establishing a new one; and

(3) acts which correspond with the purpose. 19

Without clear and positive proof of the concurrence of these three requirements, the domicile of origin continues. 20 To effect change, there must be animus manendi coupled withanimus non revertendi. 21 The intent to remain in the new domicile of choice must be for an indefinite period of time, the change of residence must be voluntary, and the residence at the place chosen for the new domicile must be actual. 22

The Court agrees with the COMELEC Second Division that Dumpit-Michelena failed to establish that she has abandoned her former domicile. Among the documents submitted by Dumpit-Michelena is a Special Power of Attorney 23 authorizing Clyde Crispino ("Crispino") to "apply, facilitate and follow up the issuance of a building permit of the beach house" she intended to put up in her lot. She also authorized Crispino to help her caretaker oversee the lot and the construction of the beach house. As correctly pointed out by the COMELEC Second Division, a beach house is at most a place of temporary relaxation. It can hardly be considered a place of residence.

In addition, the designation of caretaker with monthly compensation of P2,500 24 only shows that Dumpit-Michelena does not regularly reside in the place. The Deed of Absolute Sale states that Dumpit-Michelena is a resident of Naguilian, La Union 25 while the Special Power of Attorney states that she is a resident of San Julian West, Agoo, La Union  andNo. 6 Butterfly St. Valle Verde 6, Pasig, Metro Manila. Dumpit-Michelena obviously has a number of residences and the acquisition of another one does not automatically make the most recently acquired residence her new domicile. cAEaSC

We considered the affidavits submitted by Dumpit-Michelena where the affiants retracted their previous affidavits stating that Dumpit-Michelena was not a resident of San Julian West. The affiants alleged that they signed the first affidavits without knowing their contents. However, the COMELEC Second Division pointed out that Boado, et al. also submitted affidavits with the affiants repudiating their previous affidavits that Dumpit-Michelena was a resident of San Julian West. The Court is inclined to give more weight to the joint affidavit of all the barangay officials of San Julian West attesting that Dumpit-Michelena is not a resident of their barangay.

Hence, the COMELEC Second Division did not commit grave abuse of discretion in cancelling Dumpit-Michelena's Certificate of Candidacy.

WHEREFORE, we DISMISS the petition. We AFFIRM the Resolution dated 9 March 2004 of the COMELEC Second Division and the Resolution dated 7 May 2004 of the COMELEC En Banc with MODIFICATION that Tess Dumpit-Michelena's motion for reconsideration was not filed late.

SO ORDERED.

EN BANC

[G.R. No. 161434. March 3, 2004.]

MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR., petitioners, vs. The COMMISSION ON ELECTIONS, RONALD ALLAN KELLY POE (a.k.a. FERNANDO POE, JR.) and VICTORINO X.

FORNIER, respondents.

[G.R. No. 161634. March 3, 2004.]

ZOILO ANTONIO VELEZ, petitioner, vs. RONALD ALLAN KELLEY POE, a.k.a. FERNANDO POE, JR., respondent.

[G.R. No. 161824. March 3, 2004.]

VICTORINO X. FORNIER, petitioner, vs. HON. COMMISSION ON ELECTIONS and RONALD ALLAN KELLEY POE, ALSO KNOWN AS FERNANDO POE JR.,respondents.

D E C I S I O N

VITUG, J p:

Citizenship is a treasured right conferred on those whom the state believes are deserving of the privilege. It is a "precious heritage, as well as an inestimable acquisition," 1 that cannot be taken lightly by anyone — either by those who enjoy it or by those who dispute it.

Before the Court are three consolidated cases, all of which raise a single question of profound importance to the nation. The issue of citizenship is brought up to challenge the qualifications of a presidential candidate to hold the highest office of the land. Our people are waiting for the judgment of the Court with bated breath. Is Fernando Poe, Jr., the hero of silver screen, and now one of the main contenders for the presidency, a natural-born Filipino or is he not?

The moment of introspection takes us face to face with Spanish and American colonial roots and reminds us of the rich heritage of civil law and common law traditions, the fusion resulting in a hybrid of laws and jurisprudence that could be no less than distinctly Filipino.

Antecedent Case Settings

On 31 December 2003, respondent Ronald Allan Kelly Poe, also known as Fernando Poe, Jr. (hereinafter "FPJ"), filed his certificate of candidacy for the position of President of the Republic of the Philippines under the Koalisyon ng Nagkakaisang Pilipino (KNP) Party, in the forthcoming national elections. In his certificate of candidacy, FPJ, representing himself to be a natural-born citizen of the Philippines, stated his name to be "Fernando Jr.," or "Ronald Allan" Poe, his date of birth to be 20 August 1939 and his place of birth to be Manila.

Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus Hon. Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr., Respondents," initiated, on 09 January 2004, a petition docketed SPA No. 04-003 before the Commission on Elections ("COMELEC") to disqualify FPJ and to deny due course or to cancel his certificate of candidacy upon the thesis that FPJ made a material misrepresentation in his certificate of candidacy by claiming to be a natural- born Filipino citizen when in truth, according to Fornier, his parents were foreigners; his mother, Bessie Kelley Poe, was an American, and his father, Allan Poe, was a Spanish national, being the son of Lorenzo Pou, a Spanish subject. Granting, petitioner asseverated, that Allan F. Poe was a Filipino citizen, he could not have transmitted his Filipino citizenship to FPJ, the latter being an illegitimate child of an alien mother. Petitioner based the allegation of the illegitimate birth of respondent on two assertions — first, Allan F. Poe contracted a

prior marriage to a certain Paulita Gomez before his marriage to Bessie Kelley and, second, even if no such prior marriage had existed, Allan F. Poe, married Bessie Kelly only a year after the birth of respondent.

In the hearing before the Third Division of the COMELEC on 19 January 2004, petitioner, in support of his claim, presented several documentary exhibits — 1) a copy of the certificate of birth of FPJ, 2) a certified photocopy of an affidavit executed in Spanish by Paulita Poe y Gomez attesting to her having filed a case for bigamy and concubinage against the father of respondent, Allan F. Poe, after discovering his bigamous relationship with Bessie Kelley, 3) an English translation of the affidavit aforesaid, 4) a certified photocopy of the certificate of birth of Allan F. Poe, 5) a certification issued by the Director of the Records Management and Archives Office, attesting to the fact that there was no record in the National Archives that a Lorenzo Poe or Lorenzo Pou resided or entered the Philippines before 1907, and 6) a certification from the Officer-In-Charge of the Archives Division of the National Archives to the effect that no available information could be found in the files of the National Archives regarding the birth of Allan F. Poe.

On his part, respondent, presented twenty-two documentary pieces of evidence, the more significant ones being — a) a certification issued by Estrella M. Domingo of the Archives Division of the National Archives that there appeared to be no available information regarding the birth of Allan F. Poe in the registry of births for San Carlos, Pangasinan, b) a certification issued by the Officer-In-Charge of the Archives Division of the National Archives that no available information about the marriage of Allan F. Poe and Paulita Gomez could be found, c) a certificate of birth of Ronald Allan Poe, d) Original Certificate of Title No. P-2247 of the Registry of Deeds for the Province of Pangasinan, in the name of Lorenzo Pou, e) copies of Tax Declaration No. 20844, No. 20643, No. 23477 and No. 23478 in the name of Lorenzo Pou, f) a copy of the certificate of death of Lorenzo Pou, g) a copy of the purported marriage contract between Fernando Pou and Bessie Kelley, and h) a certification issued by the City Civil Registrar of San Carlos City, Pangasinan, stating that the records of birth in the said office during the period of from 1900 until May 1946 were totally destroyed during World War II.

On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack of merit. Three days later, or on 26 January 2004, Fornier filed his motion for reconsideration. The motion was denied on 06 February 2004 by the COMELEC en banc. On 10 February 2004, petitioner assailed the decision of the COMELEC before this Court conformably with Rule 64, in relation to Rule 65, of the Revised Rules of Civil Procedure. The petition, docketed G.R. No. 161824, likewise prayed for a temporary restraining order, a writ of preliminary injunction or any other resolution that would stay the finality and/or execution of the COMELEC resolutions.

The other petitions, later consolidated with G.R. No. 161824, would include G.R. No. 161434, entitled "Maria Jeanette C. Tecson, and Felix B. Desiderio, Jr., vs. The Commission on Elections, Ronald Allan Kelley Poe (a.k.a. 'Fernando Poe, Jr.'), and Victorino X. Fornier," and the other, docketed G.R. No. 161634, entitled "Zoilo Antonio G. Velez, vs. Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr.," both challenging the jurisdiction of the COMELEC and asserting that, under Article VII, Section 4, paragraph 7, of the 1987 Constitution, only the Supreme Court had original and exclusive jurisdiction to resolve the basic issue on the case.

Jurisdiction of the Court

In G.R. No. 161824

In seeking the disqualification of the candidacy of FPJ and to have the COMELEC deny due course or to cancel FPJ's certificate of candidacy for alleged misrepresentation of a material fact (i.e., that FPJ was a natural-born citizen) before the COMELEC, petitioner Fornier invoked Section 78 of the Omnibus Election Code —

"Section 78. Petition to deny due course or to cancel a certificate of candidacy. — A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false" —

in consonance with the general powers of COMELEC expressed in Section 52 of the Omnibus Election Code —

"Section 52. Powers and functions of the Commission on Elections. In addition to the powers and functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections" —

and in relation to Article 69 of the Omnibus Election Code which would authorize "any interested party" to file a verified petition to deny or cancel the certificate of candidacy of any nuisance candidate.

Decisions of the COMELEC on disqualification cases may be reviewed by the Supreme Court per Rule 64 2 in an action for certiorari under Rule 65 3 of the Revised Rules of Civil Procedure. Section 7, Article IX, of the 1987 Constitution also reads —

"Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum, required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof."

Additionally, Section 1, Article VIII, of the same Constitution provides that judicial power is vested in one Supreme Court and in such lower courts as may be established by law which power "includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."

It is sufficiently clear that the petition brought up in G.R. No. 161824 was aptly elevated to, and could well be taken cognizance of, by this Court. A contrary view could be a gross denial to our people of their fundamental right to be fully informed, and to make a proper choice, on who could or should be elected to occupy the highest government post in the land.

 

In G.R. No. 161434 and G.R. No. 161634

Petitioners Tecson, et al., in G.R. No. 161434, and Velez, in G.R. No. 161634, invoke the provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the jurisdiction of the COMELEC when it took cognizance of SPA No. 04-003 and in urging the Supreme Court to instead take on the petitions they directly instituted before it. The Constitutional provision cited reads:

"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose."

The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973 Constitution to designate any tribunal to be the sole judge of presidential and vice-presidential contests, has constrained this Court to declare, in Lopez vs. Roxas, 4 as "not (being) justiciable" controversies or disputes involving contests on the elections, returns and qualifications of the President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to enact Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal to Try, Hear and Decide Protests Contesting the Election of the President-Elect and the Vice-President-Elect of the Philippines and Providing for the Manner of Hearing the Same." Republic Act 1793 designated the Chief Justice and the Associate Justices of the Supreme Court to be the members of the tribunal. Although the subsequent adoption of the parliamentary form of government under the 1973 Constitution might have implicitly affected Republic Act No. 1793, the statutory set-up, nonetheless, would now be deemed revived under the present Section 4, paragraph 7, of the 1987 Constitution.

Ordinary usage would characterize a "contest" in reference to a post-election scenario. Election contests consist of either an election protest or a quo warranto which, although two distinct remedies, would have one objective in view, i.e., to dislodge the winning candidate from office. A perusal of the phraseology in Rule 12, Rule 13, and Rule 14 of the "Rules of the Presidential Electoral Tribunal," promulgated by the Supreme Court en banc on 18 April 1992, would support this premise —

"Rule 12. Jurisdiction. — The Tribunal shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President of the Philippines.

"Rule 13. How Initiated. — An election contest is initiated by the filing of an election protest or a petition for quo warranto against the President or Vice-President. An election protest shall not include a petition for quo warranto. A petition for quo warranto shall not include an election protest.

"Rule 14. Election Protest. — Only the registered candidate for President or for Vice-President of the Philippines who received the second or third highest number of votesmay contest the election of the President or the Vice-President, as the case may be, by filing a verified petition with the Clerk of the Presidential Electoral Tribunal within thirty (30) days after the proclamation of the winner."

The rules categorically speak of the jurisdiction of the tribunal over contests relating to the election, returns and qualifications of the "President" or "Vice-President", of the Philippines, and not of "candidates" for President or Vice-President. A quo warranto proceeding is generally defined as being an action against a person who usurps, intrudes into, or unlawfully holds or exercises a public office. 5 In such context, the election contest can only contemplate a post-election scenario. In Rule 14, only a registered candidate who would have received either the second or third highest number of votes could file an election protest. This rule again presupposes a post-election scenario.

It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4, paragraph 7, of the 1987 Constitution, would not include cases directly brought before it, questioning the qualifications of a candidate for the presidency or vice-presidency before the elections are held.

Accordingly, G.R. No. 161434, entitled "Maria Jeanette C. Tecson, et al., vs. Commission on Elections, et al.," and G.R. No. 161634, entitled "Zoilo Antonio Velez vs. Ronald Allan Kelley Poe a.k.a. Fernando Poe, Jr." would have to be dismissed for want of jurisdiction.

The Citizenship Issue

Now, to the basic issue; it should be helpful to first give a brief historical background on the concept of citizenship.

Perhaps, the earliest understanding of citizenship was that given by Aristotle, who, sometime in 384 to 322 B.C., described the "citizen" to refer to a man who shared in the administration of justice and in the holding of an office.  6 Aristotle saw its significance if only to determine the constituency of the "State," which he described as being composed of such persons who would be adequate in number to achieve a self-sufficient existence. 7 The concept grew to include one who would both govern and be governed, for which qualifications like autonomy, judgment and loyalty could be expected. Citizenship was seen to deal with rights and entitlements, on the one hand, and with concomitant obligations, on the other.  8 In its ideal setting, a citizen was active in public life and fundamentally willing to submit his private interests to the general interest of society.

The concept of citizenship had undergone changes over the centuries. In the 18th century, the concept was limited, by and large, to civil citizenship, which established the rights necessary for individual freedom, such as rights to property, personal liberty and justice. 9 Its meaning expanded during the 19th century to include political citizenship, which encompassed the right to participate in the exercise of political power. 10 The 20th century saw the next stage of the development of social citizenship, which laid emphasis on the right of the citizen to economic well-being and social security. 11 The idea of citizenship has gained expression in the modern welfare state as it so developed in Western Europe. An ongoing and final stage of development, in keeping with the rapidly shrinking global village, might well be the internationalization of citizenship. 12

The Local Setting — from Spanish Time to the Present

There was no such term as "Philippine citizens" during the Spanish regime but "subjects of Spain" or "Spanish subjects." 13 In church records, the natives were called 'indios', denoting a low regard for the inhabitants of the archipelago. Spanish laws on citizenship became highly codified during the 19th century but their sheer number made it difficult to point to one comprehensive law. Not all of these citizenship laws of Spain however, were made to apply to the Philippine Islands except for those explicitly extended by Royal Decrees. 14

Spanish laws on citizenship were traced back to the Novisima Recopilacion, promulgated in Spain on 16 July 1805 but as to whether the law was extended to the Philippines remained to be the subject of differing views among experts; 15 however, three royal decrees were undisputably made applicable to Spaniards in the Philippines — the Order de la Regencia of 14 August 1841, 16 the Royal Decree of 23 August 1868 specifically defining the political status of children born in the Philippine Islands, 17 and finally, the Ley Extranjera de Ultramar of 04 July 1870, which was expressly made applicable to the Philippines by the Royal Decree of 13 July 1870. 18

The Spanish Constitution of 1876 was never extended to the Philippine Islands because of the express mandate of its Article 89, according to which the provisions of the Ultramaramong which this country was included, would be governed by special laws. 19

It was only the Civil Code of Spain, made effective in this jurisdiction on 18 December 1889, which came out with the first categorical enumeration of who were Spanish citizens. —

"(a) Persons born in Spanish territory,

"(b) Children of a Spanish father or mother, even if they were born outside of Spain,

"(c) Foreigners who have obtained naturalization papers,

"(d) Those who, without such papers, may have become domiciled inhabitants of any town of the Monarchy." 20

The year 1898 was another turning point in Philippine history. Already in the state of decline as a superpower, Spain was forced to so cede her sole colony in the East to an upcoming world power, the United States. An accepted principle of international law dictated that a change in sovereignty, while resulting in an abrogation of all political laws then in force, would have no effect on civil laws, which would remain virtually intact.

The Treaty of Paris was entered into on 10 December 1898 between Spain and the United States. 21 Under Article IX of the treaty, the civil rights and political status of the native inhabitants of the territories ceded to the United States would be determined by its Congress —

"Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the present treaty relinquishes or cedes her sovereignty may remain in such territory or may remove therefrom, retaining in either event all their rights of property, including the right to sell or dispose of such property or of its proceeds; and they shall also have the right to carry on their industry, commerce, and professions, being subject in respect thereof to such laws as are applicable to foreigners. In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they reside.

 

Thus —

"The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress." 22

Upon the ratification of the treaty, and pending legislation by the United States Congress on the subject, the native inhabitants of the Philippines ceased to be Spanish subjects. Although they did not become American citizens, they, however, also ceased to be "aliens" under American laws and were thus issued passports describing them to be citizens of the Philippines entitled to the protection of the United States. LibLex

The term "citizens of the Philippine Islands" appeared for the first time in the Philippine Bill of 1902, also commonly referred to as the Philippine Organic Act of 1902, the first comprehensive legislation of the Congress of the United States on the Philippines —

". . . that all inhabitants of the Philippine Islands continuing to reside therein, who were Spanish subjects on the 11th day of April, 1891, and then resided in said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at Paris, December tenth eighteen hundred and ninety eight." 23

Under the organic act, a "citizen of the Philippines" was one who was an inhabitant of the Philippines, and a Spanish subject on the 11th day of April 1899. The term "inhabitant" was taken to include 1) a native-born inhabitant, 2) an inhabitant who was a native of Peninsular Spain, and 3) an inhabitant who obtained Spanish papers on or before 11 April 1899. 24

Controversy arose on to the status of children born in the Philippines from 11 April 1899 to 01 July 1902, during which period no citizenship law was extant in the Philippines. Weight was given to the view, articulated in jurisprudential writing at the time, that the common law principle of jus soli, otherwise also known as the principle of territoriality, operative in the United States and England, governed those born in the Philippine Archipelago within that period. 25 More about this later.

In 23 March 1912, the Congress of the United States made the following amendment to the Philippine Bill of 1902 —

"Provided, That the Philippine Legislature is hereby authorized to provide by law for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of other insular possession of the United States, and such other persons residing in the Philippine Islands who would become citizens of the United States, under the laws of the United States, if residing therein." 26

With the adoption of the Philippine Bill of 1902, the concept of "Philippine citizens" had for the first time crystallized. The word "Filipino" was used by William H. Taft, the first Civil Governor General in the Philippines when he initially made mention of it in his slogan, "The Philippines for the Filipinos." In 1916, the Philippine Autonomy Act, also known as the Jones Law restated virtually the provisions of the Philippine Bill of 1902, as so amended by the Act of Congress in 1912 —

"That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their children born subsequently thereto, shall be deemed and held to be citizens of the Philippine Islands , except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at Paris December tenth, eighteen hundred and ninety-eight and except such others as have since become citizens of some other country; Provided, That the Philippine Legislature, herein provided for, is hereby authorized to provide for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of the insular possessions of the United States, and such other persons residing in the Philippine Islands who are citizens of the United States, or who could become citizens of the United States under the laws of the United States, if residing therein."

Under the Jones Law, a native-born inhabitant of the Philippines was deemed to be a citizen of the Philippines as of 11 April 1899 if he was 1) a subject of Spain on 11 April 1899, 2) residing in the Philippines on said date, and, 3) since that date, not a citizen of some other country.

While there was, at one brief time, divergent views on whether or not jus soli was a mode of acquiring citizenship, the 1935 Constitution brought to an end to any such link with common law, by adopting, once and for all,  jus sanguinis or blood relationship as being the basis of Filipino citizenship —

"Section 1, Article III, 1935 Constitution. The following are citizens of the Philippines —

"(1) Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution

"(2) Those born in the Philippines Islands of foreign parents who, before the adoption of this Constitution, had been elected to public office in the Philippine Islands.

"(3) Those whose fathers or mothers are citizens of the Philippines.

"(4) Those whose mothers are citizens of the Philippines and upon reaching the age of majority, elect Philippine citizenship.

"(5) Those who are naturalized in accordance with law."

Subsection (4), Article III, of the 1935 Constitution, taken together with existing civil law provisions at the time, which provided that women would automatically lose their Filipino citizenship and acquire that of their foreign husbands, resulted in discriminatory situations that effectively incapacitated the women from transmitting their Filipino citizenship to their legitimate children and required illegitimate children of Filipino mothers to still elect Filipino citizenship upon reaching the age of majority. Seeking to correct this anomaly, as well as fully cognizant of the newly found status of Filipino women as equals to men, the framers of the 1973 Constitution crafted the provisions of the new Constitution on citizenship to reflect such concerns —

"Section 1, Article III, 1973 Constitution — The following are citizens of the Philippines:

"(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution.

"(2) Those whose fathers or mothers are citizens of the Philippines.

"(3) Those who elect Philippine citizenship pursuant to the provisions of the Constitution of nineteen hundred and thirty-five.

"(4) Those who are naturalized in accordance with law."

For good measure, Section 2 of the same article also further provided that —

"A female citizen of the Philippines who marries an alien retains her Philippine citizenship, unless by her act or omission she is deemed, under the law to have renounced her citizenship."

The 1987 Constitution generally adopted the provisions of the 1973 Constitution, except for subsection (3) thereof that aimed to correct the irregular situation generated by the questionable proviso in the 1935 Constitution.

Section 1, Article IV, 1987 Constitution now provides:

"The following are citizens of the Philippines:

"(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution.

"(2) Those whose fathers or mothers are citizens of the Philippines.

"(3) Those born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and

"(4) Those who are naturalized in accordance with law."

The Case Of FPJ

Section 2, Article VII, of the 1987 Constitution expresses:

"No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election."

The term "natural-born citizens," is defined to include "those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship." 27

The date, month and year of birth of FPJ appeared to be 20 August 1939 during the regime of the 1935 Constitution. Through its history, four modes of acquiring citizenship — naturalization, jus soli, res judicata and jus sanguinis 28 — had been in vogue. Only two, i.e., jus soli and jus sanguinis, could qualify a person to being a "natural-born" citizen of the Philippines. Jus soli, per Roa vs. Collector of Customs 29 (1912), did not last long. With the adoption of the 1935 Constitution and the reversal of Roa in Tan Chong vs.Secretary of Labor 30 (1947), jus sanguinis or blood relationship would now become the primary basis of citizenship by birth.

Documentary evidence adduced by petitioner would tend to indicate that the earliest established direct ascendant of FPJ was his paternal grandfather Lorenzo Pou, married to Marta Reyes, the father of Allan F. Poe. While the record of birth of Lorenzo Pou had not been presented in evidence, his death certificate, however, identified him to be a Filipino, a resident of San Carlos, Pangasinan, and 84 years old at the time of his death on 11 September 1954. The certificate of birth of the father of FPJ, Allan F. Poe, showed that he was born on 17 May 1915 to an Español father, Lorenzo Pou, and a mestiza Español mother, Marta Reyes. Introduced by petitioner was an "uncertified" copy of a supposed certificate of the alleged marriage of Allan F. Poe and Paulita Gomez on 05 July 1936. The marriage certificate of Allan F. Poe and Bessie Kelley reflected the date of their marriage to be on 16 September 1940. In the same certificate, Allan F. Poe was stated to be twenty-five years old, unmarried, and a Filipino citizen, and Bessie Kelley to be twenty-two years old, unmarried, and an American citizen. The birth certificate of FPJ, would disclose that he was born on 20 August 1939 to Allan F. Poe, a Filipino, twenty-four years old, married to Bessie Kelly, an American citizen, twenty-one years old and married.

 

Considering the reservations made by the parties on the veracity of some of the entries on the birth certificate of respondent and the marriage certificate of his parents, the only conclusions that could be drawn with some degree of certainty from the documents would be that —

1. The parents of FPJ were Allan F. Poe and Bessie Kelley;

2. FPJ was born to them on 20 August 1939;

3. Allan F. Poe and Bessie Kelley were married to each other on 16 September, 1940;

4. The father of Allan F. Poe was Lorenzo Poe; and

5. At the time of his death on 11 September 1954, Lorenzo Poe was 84 years old.

Would the above facts be sufficient or insufficient to establish the fact that FPJ is a natural-born Filipino citizen? The marriage certificate of Allan F. Poe and Bessie Kelley, the birth certificate of FPJ, and the death certificate of Lorenzo Pou are documents of public record in the custody of a public officer. The documents have been submitted in evidence by both contending parties during the proceedings before the COMELEC.

The birth certificate of FPJ was marked Exhibit "A" for petitioner and Exhibit "3" for respondent. The marriage certificate of Allan F. Poe to Bessie Kelley was submitted as Exhibit "21" for respondent. The death certificate of Lorenzo Pou was submitted by respondent as his Exhibit "5." While the last two documents were submitted in evidence for respondent, the admissibility thereof, particularly in reference to the facts which they purported to show, i.e., the marriage certificate in relation to the date of marriage of Allan F. Poe to Bessie Kelley and the death certificate relative to the death of Lorenzo Pou on 11 September 1954 in San Carlos, Pangasinan, were all admitted by petitioner, who had utilized those material statements in his argument. All three documents were certified true copies of the originals.

Section 3, Rule 130, Rules of Court states that —

"Original document must be produced; exceptions. — When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases:

xxx xxx xxx

"(d) When the original is a public record in the custody of a public office or is recorded in a public office."

Being public documents, the death certificate of Lorenzo Pou, the marriage certificate of Allan F. Poe and Bessie Kelly, and the birth certificate of FPJ, constitute prima facieproof of their contents. Section 44, Rule 130, of the Rules of Court provides:

"Entries in official records. Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated."

The trustworthiness of public documents and the value given to the entries made therein could be grounded on 1) the sense of official duty in the preparation of the statement made, 2) the penalty which is usually affixed to a breach of that duty, 3) the routine and disinterested origin of most such statements, and 4) the publicity of record which makes more likely the prior exposure of such errors as might have occurred. 31

The death certificate of Lorenzo Pou would indicate that he died on 11 September 1954, at the age of 84 years, in San Carlos, Pangasinan. It could thus be assumed that Lorenzo Pou was born sometime in the year 1870 when the Philippines was still a colony of Spain. Petitioner would argue that Lorenzo Pou was not in the Philippines during the crucial period of from 1898 to 1902 considering that there was no existing record about such fact in the Records Management and Archives Office. Petitioner, however, likewise failed to show that Lorenzo Pou was at any other place during the same period. In his death certificate, the residence of Lorenzo Pou was stated to be San Carlos, Pangasinan. In the absence of any evidence to the contrary, it should be sound to conclude, or at least to presume, that the place of residence of a person at the time of his death was also his residence before death. It would be extremely doubtful if the Records Management and Archives Office would have had complete records of all residents of the Philippines from 1898 to 1902.

Proof of Paternity and Filiation Under Civil Law.

Petitioner submits, in any case, that in establishing filiation (relationship or civil status of the child to the father [or mother]) or paternity (relationship or civil status of the father to the child) of an illegitimate child, FPJ evidently being an illegitimate son according to petitioner, the mandatory rules under civil law must be used.

Under the Civil Code of Spain, which was in force in the Philippines from 08 December 1889 up until the day prior to 30 August 1950 when the Civil Code of the Philippines took effect, acknowledgment was required to establish filiation or paternity. Acknowledgment was either judicial (compulsory) or voluntary. Judicial or compulsory acknowledgment was possible only if done during the lifetime of the putative parent; voluntary acknowledgment could only be had in a record of birth, a will, or a public document. 32 Complementary to the new code was Act No. 3753 or the Civil Registry Law expressing in Section 5 thereof, that —

"In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the parents of the infant or only by the mother if the father refuses. In the latter case, it shall not be permissible to state or reveal in the document the name of the father who refuses to acknowledge the child, or to give therein any information by which such father could be identified."

In order that the birth certificate could then be utilized to prove voluntary acknowledgment of filiation or paternity, the certificate was required to be signed or sworn to by the father. The failure of such requirement rendered the same useless as being an authoritative document of recognition. 33 In Mendoza vs. Mella, 34 the Court ruled —

"Since Rodolfo was born in 1935, after the registry law was enacted, the question here really is whether or not his birth certificate (Exhibit 1), which is merely a certified copy of the registry record, may be relied upon as sufficient proof of his having been voluntarily recognized. No such reliance, in our judgment, may be placed upon it. While it contains the names of both parents, there is no showing that they signed the original, let alone swore to its contents as required in Section 5 of Act No. 3753. For all that might have happened, it was not even they or either of them who furnished the data to be entered in the civil register. Petitioners say that in any event the birth certificate is in the nature of a public document wherein voluntary recognition of a natural child may also be made, according to the same Article 131. True enough, but in such a case, there must be a clear statement in the document that the parent recognizes the child as his or her own."

In the birth certificate of respondent FPJ, presented by both parties, nowhere in the document was the signature of Allan F. Poe found. There being no will apparently executed, or at least shown to have been executed, by decedent Allan F. Poe, the only other proof of voluntary recognition remained to be "some other public document." In Pareja vs. Pareja,35 this Court defined what could constitute such a document as proof of voluntary acknowledgment:

"Under the Spanish Civil Code there are two classes of public documents, those executed by private individuals which must be authenticated by notaries, and those issued by competent public officials by reason of their office. The public document pointed out in Article 131 as one of the means by which recognition may be made belongs to the first class."

Let us leave it at that for the moment.

The 1950 Civil Code categorized the acknowledgment or recognition of illegitimate children into voluntary, legal or compulsory. Voluntary recognition was required to be expressedly made in a record of birth, a will, a statement before a court of record or in any authentic writing. Legal acknowledgment took place in favor of full blood brothers and sisters of an illegitimate child who was recognized or judicially declared as natural. Compulsory acknowledgment could be demanded generally in cases when the child had in his favor any evidence to prove filiation. Unlike an action to claim legitimacy which would last during the lifetime of the child, and might pass exceptionally to the heirs of the child, an action to claim acknowledgment, however, could only be brought during the lifetime of the presumed parent.

Amicus Curiae Ruben F. Balane defined, during the oral argument, "authentic writing," so as to be an authentic writing for purposes of voluntary recognition, simply as being a genuine or indubitable writing of the father. The term would include a public instrument (one duly acknowledged before a notary public or other competent official) or a private writing admitted by the father to be his.

The Family Code has further liberalized the rules; Article 172, Article 173, and Article 175 provide:

"Art. 172. The filiation of legitimate children is established by any of the following:

"(1) The record of birth appearing in the civil register or a final judgment; or

"(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.

"In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

"(1) The open and continuous possession of the status of a legitimate child; or

"(2) Any other means allowed by the Rules of Court and special laws.

"Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action.

 

"The action already commenced by the child shall survive notwithstanding the death of either or both the parties.

"xxx xxx xxx

"Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children.

"The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent."

The provisions of the Family Code are retroactively applied; Article 256 of the code reads:

"Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws."

Thus, in Vda. De SyQuia vs. Court of Appeals, 36 the Court has ruled:

"We hold that whether Jose was a voluntarily recognized natural child should be decided under Article 278 of the Civil Code of the Philippines. Article 2260 of that Code provides that 'the voluntary recognition of a natural child shall take place according to this Code, even if the child was born before the effectivity of this body of laws' or before August 30, 1950. Hence, Article 278 may be given retroactive effect."

It should be apparent that the growing trend to liberalize the acknowledgment of recognition of illegitimate children is an attempt to break away from the traditional idea of keeping well apart legitimate and non-legitimate relationships within the family in favor of the greater interest and welfare of the child. The provisions are intended to merely govern the private and personal affairs of the family. There is little, if any, to indicate that the legitimate or illegitimate civil status of the individual would also affect his political rights or, in general, his relationship to the State. While, indeed, provisions on "citizenship" could be found in the Civil Code, such provisions must be taken in the context or private relations, the domain of civil law; particularly —

"Civil Law is that branch of law which has for its double purpose the organization of the family and the regulation of property. It has thus [been] defined as the mass of precepts which determine and regulate the relations of assistance, authority and obedience among member of a family, and those which exist among members of a society for the protection of private interests." 37

In Yañez de Barnuevo vs. Fuster, 38 the Court has held:

"In accordance with Article 9 of the Civil Code of Spain, . . . the laws relating to family rights and duties, or to the status, condition and legal capacity of persons, govern Spaniards although they reside in a foreign country; that, in consequence, 'all questions of a civil nature, such as those dealing with the validity or nullity of the matrimonial bond, the domicile of the husband and wife, their support, as between them, the separation of their properties, the rules governing property, marital authority, division of conjugal property, the classification of their property, legal causes for divorce, the extent of the latter, the authority to decree it, and, in general, the civil effects of marriage and divorce upon the persons and properties of the spouses, are questions that are governed exclusively by the national law of the husband and wife."

The relevance of "citizenship" or "nationality" to Civil Law is best exemplified in Article 15 of the Civil Code, stating that —

"Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad" —

that explains the need to incorporate in the code a reiteration of the Constitutional provisions on citizenship. Similarly, citizenship is significant in civil relationships found in different parts of the Civil Code, 39 such as on successional rights and family relations. 40 In adoption, for instance, an adopted child would be considered the child of his adoptive parents and accorded the same rights as their legitimate child but such legal fiction extended only to define his rights under civil law 41 and not his political status.

Civil law provisions point to an obvious bias against illegitimacy. This discriminatory attitude may be traced to the Spanish family and property laws, which, while defining proprietary and successional rights of members of the family, provided distinctions in the rights of legitimate and illegitimate children. In the monarchial set-up of old Spain, the distribution and inheritance of titles and wealth were strictly according to bloodlines and the concern to keep these bloodlines uncontaminated by foreign blood was paramount.

These distinctions between legitimacy and illegitimacy were codified in the Spanish Civil Code, and the invidious discrimination survived when the Spanish Civil Code became the primary source of our own Civil Code. Such distinction, however, remains and should remain only in the sphere of civil law and not unduly impede or impinge on the domain of political law.

The proof of filiation or paternity for purposes of determining his citizenship status should thus be deemed independent from and not inextricably tied up with that prescribed for civil law purposes. The Civil Code or Family Code provisions on proof of filiation or paternity, although good law, do not have preclusive effects on matters alien to personal and family relations. The ordinary rules on evidence could well and should govern. For instance, the matter about pedigree is not necessarily precluded from being applicable by the Civil Code or Family Code provisions.

Section 39, Rule 130, of the Rules of Court provides —

"Act or Declaration about pedigree. The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word 'pedigree' includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred,

and the names of the relatives. It embraces also facts of family history intimately connected with pedigree."

For the above rule to apply, it would be necessary that (a) the declarant is already dead or unable to testify, (b) the pedigree of a person must be at issue, (c) the declarant must be a relative of the person whose pedigree is in question, (d) declaration must be made before the controversy has occurred, and (e) the relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such act or declaration.

Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of Bessie Kelley Poe submitted as Exhibit 20 before the COMELEC, might be accepted to prove the facts of Allan F. Poe, recognizing his own paternal relationship with FPJ, i.e., living together with Bessie Kelly and his children (including respondent FPJ) in one house, and as one family —

"I, Ruby Kelly Mangahas, of legal age and sound mind, presently residing in Stockton, California, U.S.A., after being sworn in accordance with law do hereby declare that:

"1. I am the sister of the late Bessie Kelly Poe.

"2. Bessie Kelley Poe was the wife of Fernando Poe, Sr.

"3. Fernando and Bessie Poe had a son by the name of Ronald Allan Poe, more popularly known in the Philippines as 'Fernando Poe, Jr., or FPJ'.

"4. Ronald Allan Poe 'FPJ' was born on August 20, 1939 at St. Luke's Hospital, Magdalena Street, Manila.

"xxx xxx xxx

"7. Fernando Poe Sr., and my sister Bessie, met and became engaged while they were students at the University of the Philippines in 1936. I was also introduced to Fernando Poe Sr., by my sister that same year.

"8. Fernando Poe, Sr., and my sister Bessie had their first child in 1938.

"9. Fernando Poe, Sr., my sister Bessie and their first three children, Elizabeth, Ronald, Allan and Fernando II, and myself lived together with our mother at our family's house on Dakota St. (now Jorge Bocobo St.), Malate until the liberation of Manila in 1945, except for some months between 1943-1944.

"10. Fernando Poe, Sr., and my sister, Bessie, were blessed with four (4) more children after Ronald Allan Poe.

"xxx xxx xxx

"18. I am executing this Declaration to attest to the fact that my nephew, Ronald Allan Poe is a natural born Filipino, and that he is the legitimate child of Fernando Poe, Sr.

"Done in City of Stockton, California, U.S.A., this 12th day of January 2004.

Ruby Kelly Mangahas

DeclarantDNA Testing

In case proof of filiation or paternity would be unlikely to satisfactory establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resorted to. A positive match would clear up filiation or paternity. In  Tijing vs. Court of Appeals, 42this Court has acknowledged the strong weight of DNA testing —

"Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and the child are analyzed to establish parentage. Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when completely obtained in aid of situations presented, since to reject said result is to deny progress."

 

Petitioner's Argument For Jurisprudential Conclusiveness

Petitioner would have it that even if Allan F. Poe were a Filipino citizen, he could not have transmitted his citizenship to respondent FPJ, the latter being an illegitimate child. According to petitioner, prior to his marriage to Bessie Kelly, Allan F. Poe, on July 5, 1936, contracted marriage with a certain Paulita Gomez, making his subsequent marriage to Bessie Kelly bigamous and respondent FPJ an illegitimate child. The veracity of the supposed certificate of marriage between Allan F. Poe and Paulita Gomez could be most doubtful at best. But the documentary evidence introduced by no less than respondent himself, consisting of a birth certificate of respondent and a marriage certificate of his parents showed that FPJ was born on 20 August 1939 to Filipino father and an American mother who were married to each other a year later, or on 16 September 1940. Birth to unmarried parents would make FPJ an illegitimate child. Petitioner contended that as an illegitimate child, FPJ so followed the citizenship of his mother, Bessie Kelly, an American citizen, basing his stand on the ruling of this Court in Morano vs. Vivo, 43 citing Chiongbian vs. de Leon 44 and Serra vs. Republic. 45

On the above score, the disqualification made by amicus curiae Joaquin G. Bernas, SJ, is most convincing; he states —

"We must analyze these cases and ask what the lis mota was in each of them. If the procurement of the Court on jus sanguinis was on the lis mota, the pronouncement would be a decision constituting doctrine under the rule of stare decisis. But if the pronouncement was irrelevant to the lis mota, the pronouncement would not be a decision but a mere obiter dictum which did not establish doctrine. I therefore invite the Court to look closely into these cases.

"First, Morano vs. Vivio. The case was not about an illegitimate child of a Filipino father. It was about a stepson of a Filipino, a stepson who was the child of a Chinese mother and a Chinese father. The issue was whether the stepson followed the naturalization of the stepfather. Nothing about jus sanguinis there. The stepson did not have blood of the naturalized stepfather.

"Second, Chiongbian vs. de Leon. This case was not about the illegitimate son of a Filipino father. It was about a legitimate son of a father who had become Filipino by election to public office before the 1935 Constitution pursuant to Article IV, Section 1(2) of the 1935 Constitution. No one was illegitimate here.

"Third, Serra vs. Republic. The case was not about the illegitimate son of a Filipino father. Serra was an illegitimate child of a Chinese father and a Filipino mother. The issue was whether one who was already a Filipino because of his mother who still needed to be naturalized. There is nothing there about invidious jus sanguinis.

"Finally, Paa vs. Chan. 46 This is more complicated case. The case was about the citizenship of Quintin Chan who was the son of Leoncio Chan. Quintin Chan claimed that his father, Leoncio, was the illegitimate son of a Chinese father and a Filipino mother. Quintin therefore argued that he got his citizenship from Leoncio, his father. But the Supreme Court said that there was no valid proof that Leoncio was in fact the son of a Filipina mother. The Court therefore concluded that Leoncio was not Filipino. If Leoncio was not Filipino, neither was his son Quintin. Quintin therefore was not only not a natural-born Filipino but was not even a Filipino.

"The Court should have stopped there. But instead it followed with an obiter dictum. The Court said obiterthat even if Leoncio, Quintin's father, were Filipino, Quintin would not be Filipino because

Quintin was illegitimate. This statement about Quintin, based on a contrary to fact assumption, was absolutely necessary for the case. . . . It was obiter dictum, pure and simple, simply repeating the obiter dictum in Morano vs. Vivo.

"xxx xxx xxx

"Aside from the fact that such a pronouncement would have no textual foundation in the Constitution, it would also violate the equal protection clause of the Constitution not once but twice. First, it would make an illegitimate distinction between a legitimate child and an illegitimate child, and second, it would make an illegitimate distinction between the illegitimate child of a Filipino father and the illegitimate child of a Filipino mother.

"The doctrine on constitutionality allowable distinctions was established long ago by People vs. Cayat. 47 I would grant that the distinction between legitimate children and illegitimate children rests on real differences. . . . But real differences alone do not justify invidious distinction. Real differences may justify distinction for one purpose but not for another purpose.

". . . What is the relevance of legitimacy to elective public service? What possible state interest can there be for disqualifying an illegitimate child from becoming a public officer. It was not the fault of the child that his parents had illicit liaison. Why deprive the child of the fullness of political rights for no fault of his own? To disqualify an illegitimate child from holding an important public office is to punish him for the indiscretion of his parents. There is neither justice nor rationality in that. And if there is neither justice nor rationality in the distinction, then the distinction transgresses the equal protection clause and must be reprobated."

The other amici curiae, Mr. Justice Vicente Mendoza (a former member of this Court), Professor Ruben Balane and Dean Martin Magallona, at bottom, have expressed similar views. The thesis of petitioner, unfortunately hinging solely on pure obiter dicta, should indeed fail.

Where jurisprudence regarded an illegitimate child as taking after the citizenship of its mother, it did so for the benefit of the child. It was to ensure a Filipino nationality for the illegitimate child of an alien father in line with the assumption that the mother had custody, would exercise parental authority and had the duty to support her illegitimate child. It was to help the child, not to prejudice or discriminate against him.

The fact of the matter — perhaps the most significant consideration — is that the 1935 Constitution, the fundamental law prevailing on the day, month and year of birth of respondent FPJ, can never be more explicit than it is. Providing neither conditions nor distinctions, the Constitution states that among the citizens of the Philippines are "those whose fathers are citizens of the Philippines." There utterly is no cogent justification to prescribe conditions or distinctions where there are clearly none provided.

In Sum —

(1) The Court, in the exercise of its power of judicial review, possesses jurisdiction over the petition in G.R. No. 161824, filed under Rule 64, in relation to Rule 65, of the Revised Rules of Civil Procedure. G.R. No. 161824 assails the resolution of the COMELEC for alleged grave abuse of discretion in dismissing, for lack of merit, the petition in SPA No. 04-003 which has prayed for the disqualification of respondent FPJ from running for the position of President in the 10th May 2004 national elections on the contention that FPJ has committed material representation in his certificate of candidacy by representing himself to be a natural-born citizen of the Philippines.

(2) The Court must dismiss, for lack of jurisdiction and prematurity, the petitions in G.R. No. 161434 and No. 161634 both having been directly elevated to this Court in the latter's capacity as the only tribunal to resolve a presidential and vice-presidential election contest under the Constitution. Evidently, the primary jurisdiction of the Court can directly be invoked only after, not before, the elections are held.

(3) In ascertaining, in G.R. No. 161824, whether grave abuse of discretion has been committed by the COMELEC, it is necessary to take on the matter of whether or not respondent FPJ is a natural-born citizen, which, in turn, depended on whether or not the father of respondent, Allan F. Poe, would have himself been a Filipino citizen and, in the affirmative, whether or not the alleged illegitimacy of respondent prevents him from taking after the Filipino citizenship of his putative father. Any conclusion on the Filipino citizenship of Lorenzo Pou could only be drawn from the presumption that having died in 1954 at 84 years old, Lorenzo would have been born sometime in the year 1870, when the Philippines was

under Spanish rule, and that San Carlos, Pangasinan, his place of residence upon his death in 1954, in the absence of any other evidence, could have well been his place of residence before death, such that Lorenzo Pou would have benefited from the "en masse Filipinization" that the Philippine bill had effected in 1902. That citizenship (of Lorenzo Pou), if acquired, would thereby extend to his son, Allan F. Poe, father of respondent FPJ. The 1935 Constitution, during which regime respondent FPJ has seen first light, confers citizenship to all persons whose fathers are Filipino citizens regardless of whether such children are legitimate or illegitimate.

(4) But while the totality of the evidence may not establish conclusively that respondent FPJ is a natural-born citizen of the Philippines, the evidence on hand still would preponderate in his favor enough to hold that he cannot be held guilty of having made a material misrepresentation in his certificate of candidacy in violation of Section 78, in relation to Section 74, of the Omnibus Election Code. Petitioner has utterly failed to substantiate his case before the Court, notwithstanding the ample opportunity given to the parties to present their position and evidence, and to prove whether or not there has been material misrepresentation, which, as so ruled in Romualdez-Marcos vs. COMELEC, 48must not only be material, but also deliberate and willful.

 

WHEREFORE, the Court RESOLVES to DISMISS —

1. G.R. No. 161434, entitled "Maria Jeanette C. Tecson and Felix B. Desiderio, Jr., Petitioners, versus Commission on Elections, Ronald Allan Kelley Poe (a.k.a. "Fernando Poe, Jr.,) and Victorino X. Fornier, Respondents," and G.R. No. 161634, entitled "Zoilo Antonio Velez, Petitioner, versus Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr., Respondent," for want of jurisdiction.

2. G.R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus Hon. Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr.," for failure to show grave abuse of discretion on the part of respondent Commission on Elections in dismissing the petition in SPA No. 04-003.

No Costs. ASCTac

SO ORDERED.

SECOND DIVISION

[G.R. No. 150477. February 28, 2005.]

LAZARO C. GAYO, petitioner, vs. VIOLETA G. VERCELES, respondent.

D E C I S I O N

CALLEJO, SR., J p:

Before us is a petition for review on certiorari of the Decision 1 of the Regional Trial Court (RTC), Agoo, La Union, Branch 32, in EPC A-07, dismissing a petition for quo warrantofiled by petitioner Lazaro C. Gayo to declare as null and void the proclamation of respondent Violeta G. Verceles as Mayor of the Municipality of Tubao, La Union, during the May 14, 2001 elections.

This case proceeded from the following antecedents:

Sometime in 1977, the respondent migrated to the United States of America (U.S.A.) with her family to look for greener pastures. Although her husband was granted American citizenship, she retained her citizenship as a Filipino. 2 In 1993, she returned to the Philippines for good. The following year, she was appointed as Treasurer of the B.P. Verceles Foundation 3 and regularly attended the meetings of its Board of Directors. 4

In 1995, the respondent registered herself as a voter of Precinct No. 16 in Tubao, La Union.  5 As certified by the Assistant Revenue District Officer, Revenue District No. 3 of the Bureau of Internal Revenue (BIR) in San Fernando City, the respondent also filed her income tax returns for the taxable years 1996 and 1997. 6 Between the years 1993 to 1997, the respondent would travel to the U.S.A. to visit her children. 7

The respondent abandoned her status as lawful permanent resident of the U.S.A. effective November 5, 1997 for the purpose of filing her candidacy for Mayor of Tubao, La Union in the May 11, 1998 elections. On January 28, 1998, she surrendered her alien registration receipt card before the Immigration and Naturalization Service of the American Embassy in Manila. 8

The respondent ran in the May 11, 1998 elections and was elected Mayor of Tubao, La Union. CIaASH

Thereafter, during the May 14, 2001 elections, the petitioner ran for re-election and won. She was proclaimed as the duly-elected Mayor on May 16, 2001. 9

On May 26, 2001, the petitioner, also a candidate for Mayor during the May 2001 elections, filed a petition for  quo warranto with the RTC of Agoo, La Union. He prayed that (a) the respondent be declared disqualified to hold the position of Mayor of Tubao, La Union; (b) the respondent's proclamation as winner be declared null and void; and (c) the petitioner be proclaimed as the duly-elected mayor. iatdcjur

In her Answer, the respondent argued that she had clearly and unequivocally shown, through direct and positive acts, that she already renounced and waived her right to permanently reside in the U.S.A. even before she surrendered her "green card" in 1998. As a counterclaim, she prayed for the payment of attorney's fees and litigation expenses, moral damages, and exemplary damages.

On October 12, 2001, the RTC rendered a Decision 10 dismissing the petition for quo warranto. The RTC ruled that the respondent was qualified to occupy the position as Municipal Mayor.

The RTC held that the respondent's act of registration as a voter, or of filing an income tax return, does not constitute an abandonment or waiver of her status as a permanent resident of the U.S.A. 11 Nonetheless, it declared that the respondent was no longer such permanent resident during the May 2001 elections because she had already waived her green card even prior to the filing of her certificate of candidacy when she first ran for mayor in the 1998

elections. 12 The RTC held that the waiver of the status as a permanent resident under Sec. 68(e) 13 of the Omnibus Election Code is still effective. It ruled that Sec. 40(f) 14 of the Local Government Code (LGC) of 1991 did not repeal Sec. 68(e). For one, there is nothing in the repealing clause of the LGC that indicates an intention to repeal or modify the Omnibus Election Code. 15 Moreover, the two provisions are not inconsistent with each other. In fact, Section 68(e) of the Omnibus Election Code complements Section 40(f) of the LGC, in the sense that the former may supply the condition when permanent residents may be qualified to run for public office. 16

Dissatisfied, the petitioner filed this petition for review based on the following ground:

THE TRIAL COURT HAS DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS AND CONTRAVENED APPLICABLE LAW AND JURISPRUDENCE IN DISMISSING THE PETITION DESPITE PRESENCE OF LEGAL GROUND FOR ITS GRANT. 17

The fundamental issue in this case is whether or not the respondent was able to meet the residency requirement for the position of municipal mayor during the May 2001 elections.

Before ruling on the substantive issues of the case, we note that the petitioner filed a petition for review on certiorari with this Court under Rule 45 of the Rules of Court. While a petition for review on certiorari under Rule 45 may be filed with this Court to assail the decision of the RTC on questions of law, the rule is that the Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts, or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of our primary jurisdiction. 18 The Court notes that the petitioner has not relied on any such exceptional circumstances.

The remedy of the petitioner was to appeal the decision to the Court of Appeals (CA) via a writ of error under Rule 41 of the Revised Rules of Civil Procedure. Section 2(a) of Rule 41 provides for the appeal to the CA of cases decided by the RTC in the exercise of its original jurisdiction. The petition for quo warranto in this case was filed with and decided by the RTC in its original jurisdiction; hence, the remedy of the petitioner was to appeal by writ of error to the CA.

We also note that the contested term of office, which commenced on June 30, 2001, lasted only until June 30, 2004. This petition, thus, has become moot and academic insofar as it concerns the petitioner's right to the mayoralty seat in his municipality. 19 For this reason, we resolve to accept the appeal and consider the case on the merits. Further, as we have previously ruled, Courts will decide a question otherwise moot and academic if it is capable of repetition, yet evading review and if it will aid in fostering free, orderly, and peaceful elections. 20

The issue in this case involves one of the essential qualifications for running for public office, that is, the one-year residency requirement prescribed under Section 39 of the LGC, thus:

SECTION 39. Qualifications. —

(a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of thesangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any local language or dialect. EAcCHI

In interpreting this requirement, our ruling in Papandayan, Jr. v. Commission on Elections 21 is instructive, thus:

The term "residence," as used in the election law, imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. "Domicile" denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. . . . 22

More recently in Coquilla v. Commission on Elections, 23 we further clarified the meaning of the term, and held as follows:

The term "residence" is to be understood not in its common acceptation as referring to "dwelling" or "habitation," but rather to "domicile" or legal residence, that is, the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi). A domicile of origin is acquired by

every person at birth. It is usually the place where the child's parents reside and continues (sic) until the same is abandoned by acquisition of new domicile (domicile of choice). 24

In Caasi v. Court of Appeals, 25 we held that a Filipino citizen's immigration to a foreign country constitutes an abandonment of his domicile and residence in the Philippines. In other words, the acquisition of a permanent residency status in a foreign country constitutes a renunciation of the status as a resident of the Philippines. On the other hand, the Court explained in another case 26 that a new domicile is reacquired if the following conditions concur:

. . . (1) [R]residence or bodily presence in the new locality; (2) an intention to remain there; and (3) an intention to abandon the old domicile. There must be animus manendicoupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual. 27

Applying case law to the present case, it can be said that the respondent effectively abandoned her residency in the Philippines by her acquisition of the status of a permanent U.S. resident. Nonetheless, we find that the respondent reacquired her residency in the Philippines even before the holding of the May 2001 elections. The records show that she surrendered her green card to the Immigration and Naturalization Service of the American Embassy way back in 1998. By such act, her intention to abandon her U.S. residency could not have been made clearer. Moreover, when she decided to relocate to the Philippines for good in 1993, she continued living here and only went to the U.S.A. on periodic visits to her children who were residing there. Moreover, she was elected Mayor in the 1998 elections and served as such for the duration of her term. We find such acts sufficient to establish that the respondent intended to stay in the Philippines indefinitely and, ultimately, that she has once again made the Philippines her permanent residence. As we ruled in Perez v. Commission on Elections: 28

 

When the evidence on the alleged lack of residence qualification is weak or inconclusive and it clearly appears, as in the instant case, that the purpose of the law would not be thwarted by upholding the right to the office, the will of the electorate should be respected. In this case, considering the purpose of the residency requirement, i.e., to ensure that the person elected is familiar with the needs and problems of his constituency, there can be no doubt that private respondent is qualified, having been governor of the entire province of Cagayan for ten years immediately before his election as Representative of that province's Third District. 29

The petitioner posits that, under existing law, the waiver of the status as a permanent resident of a foreign country is no longer allowed to cure the disqualification, in case of permanent residents abroad. He argues that the prevailing law is the LGC of 1991 which impliedly repealed Sec. 68 of the Omnibus Election Code for being inconsistent. He asserts that the inconsistency lies in the fact that Section 40(f) of the LGC does not provide for the waiver of the status as permanent residents in a foreign country which, on the other hand, is provided under Section 68 of the Omnibus Election Code. He contends that under Section 40(f) of the LGC, permanent residents or those who have acquired the right to reside abroad and continue to avail of the same right even after the effectivity of the law on January 1, 1992, are disqualified from running for any local elective position. Hence, the petitioner argues, since the respondent continued to avail of the right to reside permanently in the U.S.A. until 1997, the respondent was disqualified from running for mayor during the May 2001 elections.

The respondent counters that the petitioner's interpretation of Sec. 40(f) of the LGC of 1991 is patently illogical, absurd, and myopic, if not totally outrageous. Such interpretation would, in effect, forever ban Filipinos from running for local elective positions, that is, those who are permanent residents abroad and who have failed to abandon their status as such after the effectivity of the LGC. 30 The respondent avers that the provision simply means that after the effectivity of the LGC, permanent residents in a foreign country or those who have acquired the right to reside there and continue to avail of the said right are disqualified from running for any elective local position. She argues therefore that she is no longer disqualified because, at the time she ran for office, she already ceased to avail of her right as a permanent U.S. resident or immigrant. 31

We agree with the respondent. Section 68 of the Omnibus Election Code was not repealed by the LGC of 1991.  The repealing clause of the LGC, Section 534, 32 does not specifically mention a repeal of any provision of the Omnibus Election Code. The legislature is presumed to know the existing laws, such that whenever it intends to repeal a particular or specific provision of law, it does so expressly. The failure to add a specific repealing clause particularly mentioning the statute to be repealed indicates that the intent was not to repeal any existing law on the matter, unless an irreconcilable inconsistency and repugnancy exists in the terms of the new and the old laws. 33

In this case, we discern no irreconcilable inconsistency between Section 68 of the Omnibus Election Code and Section 40(f) of the LGC. Section 68 of the Omnibus Election Code provides in part:

Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as a permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. acAIES

On the other hand, Sec. 40(f) of the LGC provides that "permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code" are disqualified from running for any elective local position.

The two provisions are basically the same in that they both provide that permanent residents or immigrants to a foreign country are disqualified from running for any local elective position. The difference lies only in the fact that Section 68 of the Omnibus Election Code specifically provides for an exception to the disqualification. This does not make the two provisions inconsistent with each other.

Moreover, the two provisions are in pari materia — they relate to the same subject matter. Statutes in pari materia, although in apparent conflict, are so far as reasonably possible construed to be in harmony with each other. 34 Thus, the RTC correctly made the following observations:

The deletion is based on the premise that once a person waives or abandons his status as a permanent resident or immigrant of a foreign country he has, therefore, ceased to be such from the time of the waiver or abandonment. The phrase as used in Section 68 of the Omnibus Election Code is a catchphrase or a conditional clause on how a permanent resident or immigrant of a foreign country could fall outside the coverage of the prohibition. The legislature found the inclusion of the phrase unnecessary or, with no offense meant to the framers of Batas Pambansa [Blg.] 881, a surplusage, so to speak. Hence, the deletion.

So that, the absence of that conditional clause in Section 40(f) of the Local Government Code may be supplied by Section 68(e) of the Omnibus Election Code as both provisions relate to the same subject matter and purpose; hence, in pari materia. And, when statutes are in pari materia, they are to be "construed together; each legislative intent is to be interpreted with reference to other acts relating to the same matter or subject." (Black, Construction and Interpretation of Laws, 2nd ed., p. 331) 35

Finally, the respondent avers that in the event of her disqualification from holding office, the petitioner cannot assume the mayoralty post because he did not obtain a plurality of votes for the position.

The rule is well settled. The ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office. As we held in Reyes v. Commission on Elections: 36

To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under the circumstances. 37

WHEREFORE, premises considered, the petition is hereby DENIED. The Decision of the Regional Trial Court of Agoo, La Union, Branch 32, in EPC No. A-07 is AFFIRMED. EcSCAD

SO ORDERED.

FIRST DIVISION

[G.R. No. L-2539. May 28, 1949.]

JOSE P. MONSALE, protestant-appellee, vs. PAULINO M. NICO, protestee-appellant.

Cirilo Mapa, Jr. and Jose Gaton for appellant.

Felix V. Macalalang for appellee.

SYLLABUS

1. ELECTION; CANDIDATE'S WITHDRAWAL OF CERTIFICATE OF CANDIDACY; LETTER TO WITHDRAW THE WITHDRAWAL FEW DAYS BEFORE ELECTION, EFFECT OF. — There is no question as to the right of a candidate to withdraw or annul his own certificate of candidacy, there being no legal prohibition against such withdrawal. Therefore, on October 10, or thirty-one days before the election, the protestant ceased to be a candidate by his own voluntary act, and as a matter of fact the boards of election inspectors of the municipality of Miagao were duly notified of his withdrawal. His letter to the Commission on Elections dated November 6, 1947, which the subscribed and swore to before a notary public on November 7, whereby he withdrew his withdrawal of his certificate of candidacy, can only be considered as a new certificate of candidacy which, having been filed only four days before the election, could not legally be accepted under the law, which expressly provides that such certificate should be filed at least sixty days before the election.

2. ID.; FILING OF CERTIFICATE OF CANDIDACY WITHIN A FIXED PERIOD; PURPOSE OF THE LAW. — The evident purposes of the law in requiring the filing of certificates of candidacy and in fixing a time limit therefor are (a) to enable the voters to know, at least sixty days before a regular election, the candidates among whom they are to make the choice, and (b) to avoid confusion and inconvenience in the tabulation of the votes cast; for it the law did not confine the choice or election by the voters to the duly registered candidates, there might be as many persons voted for as there were voters, and votes might be cast even for unknown or factitious as a mark to identify the votes in favor of a candidate for another office in the same election.

3. ID.; CANDIDATE VOTED FOR WHO HAS NOT RESENTED A CERTIFICATE OF CANDIDACY. — A candidate voted for who has not presented a certificate of candidacy has no right to contest the election.

4. ID.; FILING OF CERTIFICATE OF CANDIDACY AFTER EXPIRATION OF TIME LIMIT, WHEN ALLOWED. — The only instance wherein the law permits the filing of a certificate of candidacy after the expiration of the time limit for filing it is when a candidate with a certificate of candidacy duly filed dies or becomes disqualified.

D E C I S I O N

OZAETA, J p:

This is an appeal by the protestee from a decision of the Court of First Instance of Iloilo declaring the protestant elected municipal mayor of Miagao as a result of the general elections held on November 11, 1947.

It appears that the protestant withdrew his certificate of candidacy on October 10, 1947, but, on November 7, attempted to revive it by withdrawing his withdrawal. The Commission on Elections, however, ruled on November 8 that the protestant could no longer be a candidate in spite of his desire to withdraw his withdrawal. A canvass of the election returns showed that the protestee Paulino M. Nico received 2,291 votes; another candidate, Gregorio Fagutao, 126, votes; and the protestant Jose F. Monsale, none, evidently because the votes cast in his favor had not been counted for the reason that he was not a registered candidate. Consequently, Nico was proclaimed elected.

The pivotal question presented in this appeal is whether a candidate who has withdrawn his certificate of candidacy may revive it, either by withdrawing his letter of withdrawal or by filing a new certificate of candidacy, after the deadline provided by law for the filing of such certificate.

Section 31 of the Revised Election Code (Republic Act No. 180) provides that "no person shall be eligible unless. within the time fixed by law, he files a duly signed and sworn certificate of candidacy." Section 36 provides that "at least sixty days before a regular election, and thirty days at least before a special election, the . . . certificates of

candidacy for municipal offices shall be filed with the municipal secretary, who shall immediately send copies thereof to the polling places concerned, to the secretary of the provincial board, and to the Commission on Elections." Section 38 further provides that "if, after the expiration of the time limit for filing certificates of candidacy, a candidate with a certificate of candidacy duly filed should die or become disqualified, any legally qualified citizen may file a certificate of candidacy for the office for which the deceased or disqualified person was a candidate in accordance with the preceding sections on or before midday of the day of the election, and, if the death or disqualification should occur between the day before the election and the midday of election day, said certificate may be filed with any board of inspectors of the political division where he is a candidate or, in the case of candidates to be voted for by the entire electorate, with the Commission on Elections."

In the present case the protestant withdrew his certificate of candidacy on October 10, 1947, and requested the Commission on Elections that it "be considered as though it has never been filed at all." There is no question as to the right of a candidate to withdraw or annul his own certificate of candidacy, there being no legal prohibition against such withdrawal. Therefore, on October 10, or thirty-one days before the election, the protestant ceased to be a candidate by his own voluntary act, and as a matter of fact the boards of election inspectors of the municipality of Miagao were duly notified of his withdrawal. His letter to the Commission on Elections dated November 6, 1947, which he subscribed and swore to before a notary public on November 7, whereby he withdrew his withdrawal of his certificate of candidacy, can only be considered as a new certificate of candidacy which, having been filed only four days before the election, could not legally be accepted under the law, which expressly provides that such certificate should be filed at least sixty days before the election.

The evident purposes of the law in requiring the filing of certificates of candidacy and in fixing a time limit therefor are (a) to enable the voters to know, at least sixty days before a regular election, the candidates among whom ,they are to make the choice, and (b) to avoid confusion and inconvenience in the tabulation of the votes cast; for if the law did not confine the choice or election by the voters to the duly registered candidates, there might be as many persons voted for as there were voters, and votes might be cast even for unknown or fictitious persons as a mark to identify the votes in favor of a candidate for another office in the same election.

The only instance wherein the law permits the filing of a certificate of candidacy after the expiration of the time limit for filing it is when a candidate with a certificate of candidacy duly filed dies or becomes disqualified.

The Commission on Elections was, therefore, right in holding as it did that the protestant "can no longer be a candidate in spite of his desire to withdraw his withdrawal." In the case of Clutario vs. Commission on Elections, G. R. No. L-1704, this court sustained the ruling of said commission upon similar facts that "by his own voluntary act and deed petitioner has nullified his certificate of candidacy and in the light of the election laws such certificate of candidacy has been definitely withdrawn, hence nonexisting."

Under section 174 of the Revised Election Code, "a petition contesting the election of a provincial or municipal officer-elect shall be filed with the Court of First Instance of the province by any candidate voted for in said election and who has presented a certificate of candidacy." This clearly implies that a candidate voted for who has not presented a certificate of candidacy has no right to contest the election. In other words, the herein protestant, not being a registered candidate, has no standing before the court.

The judgment appealed from is reversed and the protest is ordered dismissed, with costs against the appellee. So ordered.

Moran, C. J., Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.